The original malpractice claim was brought in common pleas court against the physician arising out of two allegedly negligent surgeries performed by the physician. The physician held a courtesy clinical faculty appointment at the nearby state medical college and was being observed during the surgeries by a third-year medical student on a one-month rotation. In the malpractice lawsuit, the physician raised the defense of sovereign immunity under Ohio Revised Code § 9.86 because he had been acting as a clinical faculty instructor at the time of the challenged surgeries. While the trial court stayed the common pleas action, the plaintiff then filed a malpractice action in the Court of Claims against the medical college and also sought a declaration of the physician’s immunity. The Court of Claim confirmed the physician’s immunity and this was affirmed by the Franklin County Court of Appeals. The Supreme Court reversed.
Pursuant to O.R.C. § 9.86:
Except for civil actions that arise out of the operation of a motor vehicle and civil actions in which the state is the plaintiff, no officer or employee shall be liable in any civil action that arises under the law of this state for damage or injury caused in the performance of his duties, unless the officer’s or employee’s actions were manifestly outside the scope of his employment or official responsibilities, or unless the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner.
A court’s analysis is generally focused on whether the defendant is an employee or officer and whether he or she was acting outside the scope of employment, etc. Whether an individual is a state employee is determined by reference to O.R.C. § 109.36, subsection (a) of which provides that a defendant is covered if he is “[a] person who, at the time a cause of action against the person arises, is serving in an elected or appointed office or position with the state or is employed by the state.”
Clearly, the physician was not elected or appointed to an office. However, prior decisions had not examined the employment status of physicians in any detail. The Court declined to announce a specific test for physicians, but stated that it would consider the following factors:
• The contractual relationship between the state and the individual;
• State control over the individual;
• Whether he received any tangible benefits from his courtesy appointment; and
• Whether the individual was paid by the state or affiliated entity.
In this case, the courtesy faculty appointment of the physician was unpaid, and there was no evidence that he had been hired or credentialed by the medical college. The medical college had no control over the private medical practice of the physician. While the courtesy faculty appointment subjected the physician to unspecified rules and policies of the college, he was not permitted to use his academic title in connection with any published research without the explicit and discretionary authority of the college department chair. The physician did not receive any office space or assigned staff or equipment, research projects, clinical privileges or lecturing responsibilities. Therefore, there were insufficient indications of an employment relationship with the state which was necessary to justify immunity.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
