[Cite as Porter v. Univ. of Cincinnati, 2010-Ohio-5909.]

                                                           Court of Claims of Ohio
                                                                            The Ohio Judicial Center
                                                                    65 South Front Street, Third Floor
                                                                               Columbus, OH 43215
                                                                     614.387.9800 or 1.800.824.8263
                                                                                www.cco.state.oh.us




MONICA PORTER, Guardian, etc.,
et al.

        Plaintiffs

        v.

UNIVERSITY OF CINCINNATI

        Defendant
        Case No. 2009-05714

Judge Joseph T. Clark

DECISION




        {¶ 1} This case was sua sponte assigned to Judge Joseph T. Clark to conduct
all proceedings necessary for decision in this matter.
        {¶ 2} On October 21, 2010, the court conducted an evidentiary hearing to
determine whether Shahab Akhter, M.D. and Lynne Wagoner, M.D. are entitled to civil
immunity pursuant to R.C.2743.02(F) and 9.86. The parties presented oral arguments
and submitted deposition testimony and other exhibits for the court’s consideration.
Upon review of the evidence presented at the hearing, as well as the oral arguments of
counsel, the court makes the following determination.
        {¶ 3} R.C. 2743.02(F) states, in part:
        {¶ 4} “A civil action against an officer or employee, as defined in section 109.36
of the Revised Code, that alleges that the officer’s or employee’s conduct was
manifestly outside the scope of the officer’s or employee’s employment or official
responsibilities, or that the officer or employee acted with malicious purpose, in bad
faith, or in a wanton or reckless manner shall first be filed against the state in the court
Case No. 2009-05714                        -2-                                  DECISION

of claims, which has exclusive, original jurisdiction to determine, initially, whether the
officer or employee is entitled to personal immunity under section 9.86 of the Revised
Code and whether the courts of common pleas have jurisdiction over the civil action.”
      {¶ 5} R.C. 9.86 states, in part:
      {¶ 6} “[N]o officer or employee [of the state] 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.”
      {¶ 7} At all times relevant, Dr. Akhter was employed as an Assistant Professor
in the Department of Surgery, and Dr. Wagoner was employed as an Associate
Professor in the Department of Medicine at the University of Cincinnati (UC).             In
addition, Dr. Akhter was employed by a private practice group, University of Cincinnati
Surgeons (UCS), and Dr. Wagoner received compensation from the medical private
practice group, University Internal Medical Associates (UIMA).
      {¶ 8} It is undisputed that plaintiff’s mother, Patricia Moore, underwent a heart
transplant at UC in March 2007.       Dr. Wagoner testified that in April 2007, Moore
received care from two separate teams, the surgical team headed by Dr. Akhter, and
the medical team directed by Dr. Wagoner.         Dr. Wagoner was responsible for the
treatment of any cardiac problems, organ rejection symptoms, and for the management
of Moore’s immunosuppression therapy, while Dr. Akhter would take care of any
surgical complications or perform any necessary invasive procedures.
      {¶ 9} Moore’s recovery continued uneventfully until the early morning of April 2,
2007, when she complained of shortness of breath and exhibited a rapid heart rate.
Moore continued to complain of shortness of breath throughout the day. She ultimately
experienced complete respiratory arrest while being transported to the intensive care
unit. During resuscitation efforts, Moore suffered permanent brain injury due to lack of
Case No. 2009-05714                                -3-                                      DECISION

oxygen.
        {¶ 10} Dr. Akhter testified that on April 2, 2007, he examined Moore between
7:30 and 8:00 a.m., that he was not teaching a resident or intern at such time, and that
he did not listen to her lungs during his examination. Dr. Akhter stated that he attributed
her complaints of shortness of breath to her elevated heart rate which was being treated
with medications. Dr. Akhter testified that he then was either in his office or in his
research laboratory until he left the hospital at noon.1 Dr. Akhter further testified that he
received a telephone call from Dr. Wagoner at approximately 12:30 p.m., that she
expressed some concern about Moore’s breathing, and that together they decided that
Dr. Akhter would arrange for Moore to undergo a chest x-ray. Dr. Akhter recalled that
he spoke with the nurse practitioner employed by UC and directed her to order the test.
Dr. Akhter acknowledged that the cardiac surgery team retained primary responsibility
for Moore’s care that day. According to Dr. Akhter, he did not receive any further calls
in reference to Moore’s condition until approximately 3:30 p.m. when Dr. Allen, a senior
resident, notified him that Moore was being transferred to the intensive care unit.
        {¶ 11} Dr. Wagoner testified that she examined Moore at approximately 12:00
noon after discussing with a fellow, Dr. Srivastava, about his assessment of Moore’s
condition. According to Dr. Wagoner, the fellow reported that Moore was anxious, that
she continued to exhibit an elevated heart rate, and that she had not slept well during
the night. Dr. Wagoner recalled that Dr. Srivastava did not accompany her when she
visited Moore, that he left to commence his clinic duties, and that she followed up by
calling Dr. Srivastava after she had examined Moore. Dr. Wagoner stated that, at the
time, she was concerned that the elevated heart rate could have resulted from organ
rejection or that there was fluid accumulating around the heart.2                    According to Dr.

        1
         It is undisputed that Dr. Akhter left UC to attend a Cincinnati Reds baseball game that afternoon.
        2
         Dr. Wagoner related that Dr. Srivastava had ordered an echocardiogram be performed on Moore
to rule out the presence of fluid build-up, and that the test was completed at approximately 2:30 p.m.
However, Dr. Wagoner maintained that she was not notified of the results of the echocardiogram prior to
Case No. 2009-05714                        -4-                                 DECISION

Wagoner, she conveyed to Dr. Srivastava that she believed his assessment was in error
and that Moore’s symptoms were more likely caused by a respiratory condition rather
than merely anxiety, in that Moore’s breath sounds on the right side were quite
diminished.       Indeed, Dr. Wagoner testified that she was concerned that Moore may
have had accumulated air or fluid in and around the right lung which in turn was causing
the elevated heart rate as well as the breathing difficulties. Dr. Wagoner noted that
those conditions, if present, would require some type of intervention by Dr. Akhter and
his team; specifically, insertion of a chest tube to drain the fluid or air.    Thus, Dr.
Wagoner asserts that, while the fellow was not present when she examined Moore, the
examination was preceded by her discussion with the fellow and that she engaged in
follow-up with the fellow and Dr. Akhter such that she was engaged in teaching while
providing for Moore’s care.
        {¶ 12} Dr. Wagoner testified that she related her concerns to Dr. Akhter via
telephone, that she did not realize at the time that he was away from UC, and that she
had expected him to examine Moore and discover the basis for her respiratory distress.
Dr. Wagoner consistently testified that when her conversation with Dr. Akhter
concluded, she felt confident that Dr. Akhter would act upon her concerns in a timely
fashion.
        {¶ 13} Plaintiffs allege that both doctors were negligent for failing to properly
observe and treat impending respiratory arrest and that their treatment of Moore fell
below the standard of care for cardiac surgeons and cardiologists. In addition, counsel
for plaintiffs argued at the evidentiary hearing that Dr. Akhter’s conduct in remaining at
the baseball game and delegating Moore’s care to the nurse practitioner was in bad
faith and, therefore, outside the scope of his state employment.
        {¶ 14} The Supreme Court of Ohio has held that “in an action to determine
whether a physician or other health-care practitioner is entitled to personal immunity

Moore’s respiratory arrest.
Case No. 2009-05714                        -5-                                DECISION

from liability pursuant to R.C. 9.86 and 2743.02[F], the Court of Claims must initially
determine whether the practitioner is a state employee. If there is no express contract
of employment, the court may require other evidence to substantiate an employment
relationship, such as financial and corporate documents, W-2 forms, invoices, and
other billing practices.   If the court determines that the practitioner is not a state
employee, the analysis is completed and R.C. 9.86 does not apply.
       {¶ 15} “If the court determines that the practitioner is a state employee, the court
must next determine whether the practitioner was acting on behalf of the state when the
patient was alleged to have been injured.        If not, then the practitioner was acting
‘manifestly outside the scope of employment’ for purposes of R.C. 9.86. If there is
evidence that the practitioner’s duties include the education of students and residents,
the court must determine whether the practitioner was in fact educating a student or
resident when the alleged negligence occurred.” Theobald v. University of Cincinnati,
111 Ohio St.3d 541, 2006-Ohio-6208, ¶30-31. (Emphasis added.)
       {¶ 16} According to plaintiffs’ counsel, both doctors have asserted the defense of
civil immunity. The court finds that inasmuch as both Drs. Akhter and Wagoner held
faculty positions at UC, both were employed by the state. Thus, the issue before the
court is whether Drs. Akhter and Wagoner were furthering the interests of the state
when the alleged negligence occurred, and because the evidence establishes that their
duties with UC included the education of students and residents, whether they were in
fact educating a resident or student during the time of the alleged negligence.
       {¶ 17} As stated in Theobold, supra, “‘[i]n many instances, the line between [the
physician’s] roles (practicing and teaching) is blurred because the practitioner may be
teaching by simply providing the student or resident an opportunity to observe while the
practitioner treats a patient.’” Id. at ¶16 quoting Theobald v. Univ. of Cincinnati, 160
Ohio App.3d 342, 2005-Ohio-1510, ¶34.         The Court of Appeals had explained that
“anytime a clinical faculty member furthers a student or resident’s education, he
promotes the state’s interest. Because the state’s interest is promoted no matter how
the education of the student or resident occurs, a practitioner is acting within the scope
of his employment if he educates a student or resident by direct instruction,
demonstration, supervision, or simple involvement of the student or resident in the
patient’s care.” Theobald, supra, at ¶47.
       {¶ 18} Based upon the totality of the evidence presented, the court concludes
that none of those methods of instruction occurred during the time period from 7:30 a.m.
through approximately 3:30 p.m with respect to Dr. Akhter.3 As such, the court finds
that Dr. Akhter was not educating students or residents at the time of the alleged
negligence. There is no evidence of a student or resident being present in the hospital
room when Dr. Akhter evaluated Moore. Moreover, Dr. Akhter’s communication to his
nurse practitioner occurred in the context of his employment with UCS, and he was not
engaged in teaching residents or students while he was at the baseball game as well.
       {¶ 19} “The determination as to whether or not a person is entitled to immunity
under R.C. 9.86 and 2743.02(F) is a question of law. Barkan v. Ohio State Univ., 10th
Dist. No. 02AP-436, 2003-Ohio-985, ¶11. However, the question of whether a person
acted manifestly outside the scope of his or her employment is a question of fact. Id.”
Schultz v. Univ. of Cincinnati College of Med., Franklin App. No. 09AP-900, 2010-Ohio-
2071,¶13. Upon review, the court finds that plaintiffs simply failed to present sufficient
evidence and testimony for the court to determine that Dr. Akhter’s conduct was
wanton, reckless, or in bad faith.
       {¶ 20} Having found that Dr. Akhter was not furthering the interests of the state
during the time that he was responsible for the care and treatment of Moore on April 2,
2007, prior to her respiratory arrest, the court concludes that Dr. Akhter was not acting
within the scope of his state employment with UC at the time that the alleged negligence
occurred. Consequently, the court finds that Dr. Akhter is not entitled to civil immunity
pursuant to R.C. 9.86 and 2743.02(F). Therefore, the courts of common pleas have
jurisdiction over any civil actions that may be filed against him based upon the
allegations in this case.

       3
          In Theobald, the Supreme Court referenced the holding of Johnson v. Univ. of Cincinnati,
Franklin App. No. 04AP-926, 2005-Ohio-2203, wherein the physicians were found to be outside the scope
of their state employment, inasmuch as they were not supervising residents or students at the time the
alleged negligence occurred.
        {¶ 21} As a state-employed professor of medicine, Dr. Wagoner is required to
train and educate residents who rotate through the cardiac service at UC. This court
has previously determined that the holding in Theobald does not restrict physician
immunity to situations where a resident or student was physically present or assisting in
the care of a patient. See Clevenger v. Univ. of Cincinnati Coll. of Med., Ct. of Cl. No.
2008-10323, 2009-Ohio-2829, affirmed Franklin App. No. 09AP-585, 2010-Ohio-88.
Nonetheless, the court finds that there must be some evidence documenting that the
teaching experience occurred. “[T]he emphasis is placed upon the temporal nexus
between the alleged negligent acts and the instruction of students or residents for the
purpose of medical training.” Harvey v. Univ. of Cincinnati, Ct. of Cl. No. 2009-03517,
2009-Ohio-7029, ¶17.       Dr. Wagoner testified that based upon his progress note,
Srivastava probably performed his assessment of Moore at or around 11:30 a.m., that
he then conveyed to Dr. Wagoner his opinion that Moore was most likely experiencing
anxiety, that Dr. Wagoner offered differential diagnoses which included possible fluid
build-up, and that Dr. Srivastava communicated that he had already ordered the
echocardiogram. Dr. Wagoner further testified that she called Dr. Srivastava after she
had examined Moore to explain to him why his assessment was incorrect and to convey
that Dr. Wagoner intended to call Dr. Akhter as part of the plan of care. Plaintiffs did not
present any evidence to rebut Dr. Wagoner’s testimony that she was engaged in
teaching with Dr. Srivastava before she entered Moore’s room and that she followed up
with a phone call to him after she had examined Moore.           The court finds that Dr.
Wagoner’s testimony was credible and that Dr. Wagoner was engaged in teaching with
Dr. Srivastava at all times that she provided care and treatment to Moore on April 2,
2007.
        {¶ 22} Accordingly, the court concludes that Dr. Wagoner is entitled to civil
immunity pursuant to R.C. 9.86 and 2743.02(F). Therefore, the courts of common pleas
do not have jurisdiction over any civil actions that may be filed against her based upon
the allegations in this case.




                                               Court of Claims of Ohio
                                                                        The Ohio Judicial Center
                                                               65 South Front Street, Third Floor
                                                                          Columbus, OH 43215
                                                                614.387.9800 or 1.800.824.8263
                                                                           www.cco.state.oh.us




MONICA PORTER, Guardian, etc.,
et al.

      Plaintiffs

      v.

UNIVERSITY OF CINCINNATI

      Defendant
      Case No. 2009-05714

Judge Joseph T. Clark

JUDGMENT ENTRY




      The court held an evidentiary hearing to determine civil immunity pursuant to
R.C. 9.86 and 2743.02(F). Upon hearing all the evidence and for the reasons set forth
in the decision filed concurrently herewith, the court finds that Shahab Akhter, M.D., is
not entitled to immunity pursuant to R.C. 9.86 and 2743.02(F) and that the courts of
common pleas have jurisdiction over any civil actions that may be filed against him
based upon the allegations in this case. Conversely, and for the reasons set forth in the
decision filed concurrently herewith, the court finds that Lynne Wagoner, M.D., is
entitled to immunity pursuant to R.C. 9.86 and 2743.02(F) and that the courts of
common pleas do not have jurisdiction over any civil actions that may be filed against
her based upon the allegations in this case.

                                         _____________________________________
                                         JOSEPH T. CLARK
                                         Judge

cc:
Brian M. Kneafsey Jr.                                 James M. Kelley III
Assistant Attorney General                            Stephen S. Crandall
150 East Gay Street, 18th Floor                       6105 Parkland Blvd.
Columbus, Ohio 43215-3130                             Mayfield Heights, Ohio 44124
SJM/cmd/Filed November 10, 2010/To S.C. reporter December 1, 2010
