[Cite as Harvey v. Univ. of Cincinnati, 2009-Ohio-7029.]

                                                           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




ROBERT HARVEY, Co-Admr., etc.,
et al.

       Plaintiffs

       v.

UNIVERSITY OF CINCINNATI

       Defendant
       Case No. 2009-03517

Judge Alan C. Travis

DECISION




        {¶ 1} On August 5, 2009, the court conducted an evidentiary hearing to
determine       whether William Naber, M.D. is entitled to civil immunity pursuant to
R.C.2743.02(F) and 9.86. The parties also filed post-hearing briefs and replies. Upon
review of the testimony and evidence presented at the hearing, as well as the
memoranda filed by the parties, the court makes the following determination.
        {¶ 2} R.C. 2743.02(F) states, in part:
        {¶ 3} “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
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.”
      {¶ 4} R.C. 9.86 states, in part:
      {¶ 5} “[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.”
      {¶ 6} 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
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.
      {¶ 7} “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.)
      {¶ 8} At all times relevant, Dr. Naber was employed as an Assistant Professor
of Clinical Emergency Medicine in the College of Medicine at the University of Cincinnati
(UC). He also provided clinical care to patients at the Christ Hospital through his private
practice group, University Emergency Physicians, Inc. dba Vanguard Medical
(Vanguard). Dr. Naber stated that he received income both from UC and Vanguard,
with the largest portion coming from the clinical practice. He also stated that he taught
at UC approximately one to three hours per year, usually in the form of a lecture during
orientation for new physicians.
       {¶ 9} Plaintiffs’ decedent, Brandi Harvey, was brought to the emergency room of
Christ Hospital on April 12, 2007, at approximately noon where she was interviewed by
a triage nurse.      Brandi complained that she was “stressed out” but she refused to
elaborate or to explain why she felt that way. The triage nurse noted “unsure if SI
[suicidal ideation] or HI [homicidal ideation]. (Plaintiffs’ Exhibit 1.) Dr. Naber stated that
he spoke with Brandi and her parents and he attempted to elicit some information from
Brandi. After much coaxing, Brandi alluded to relationship problems and her fear that
she may have contracted an infectious disease. Sometime prior to 2:00 p.m., Dr. Naber
received a telephone call and stepped away from Brandi and her parents. The nursing
notes document that at 2:00 p.m., Brandi was “seen running out of room [with] mother
chasing out into waiting room.” (Plaintiffs’ Exhibit 1.)
       {¶ 10} Eventually, Brandi was located at the base of the outer wall of the parking
garage where she landed after she allegedly leapt or fell over a wall on an upper floor of
the garage. Brandi was barely alive and she was transported back to the emergency
room suffering from devastating head injuries. Brandi succumbed to those injuries a
short while later.
       {¶ 11} Plaintiffs allege that Dr. Naber was negligent in his failure to properly
triage, diagnose, treat, medicate, restrain, and protect Brandi prior to her flight from the
hospital. According to plaintiffs, the alleged negligence occurred between noon and just
prior to 2:00 p.m.
       {¶ 12} Initially, the court finds that Dr. Naber’s position as an assistant professor
at UC clearly qualifies as state employment.1     Thus, the issue before the court is
whether Dr. Naber was acting on behalf of the state at the time when the alleged
negligence occurred and because the evidence establishes that Dr. Naber’s duties
included the education of residents, whether he was in fact educating a resident at the
time of the alleged negligence.
       {¶ 13} In the present case, there is no documentary evidence of a resident being
present in the emergency room of Christ Hospital prior to 2:00 p.m. According to the
emergency department rotation schedule, Dr. Laura Heitsch was the only resident
scheduled to work April 12, 2007, from 2:00 p.m. through 12:00 a.m.               Dr. Naber
explained that it was normal procedure for a resident to arrive some time prior to the
start of the shift but that in this instance he did not recall seeing Dr. Heitsch prior to the
time when he was attempting to resuscitate Brandi at the parking garage.                            He
specifically recalled that Dr. Heitsch was present when Brandi was transported back to
the emergency department.               In addition, Dr. Naber maintains that the resident
participated fully in the resuscitation efforts and that he subsequently used the
circumstances of the entire incident when he taught and trained other residents.
           {¶ 14} Plaintiffs contend that they are not alleging any claims of negligence
against Dr. Naber with regard to the care and treatment of Brandi after she was located
at the base of the parking garage.
           {¶ 15} Upon review of the testimony, evidence, and arguments of counsel, the
court is not persuaded that a resident was present for the purpose of education during
the period of time that the alleged negligence occurred. The court further finds that Dr.
Naber was not furthering the interests of the state during the time that he interviewed
Brandi and managed her care prior to her fleeing the premises. Dr. Naber admitted that
Dr. Heitsch did not assist him in interviewing or assessing Brandi prior to her escape. In
addition, Dr. Naber testified that he did not specifically recall when Dr. Heitsch was first
present, except that he recalled seeing her upon his return to the emergency room with
Brandi on the gurney.
           {¶ 16} Defendant presented no documentation specifying when Dr. Heitsch
arrived at the emergency room or whether she was present in the emergency room prior
to Brandi’s flight from the hospital. 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. In affirming the holding of
the Tenth District Court of Appeals, the Supreme Court agreed that “the question of
scope of employment must turn on what the practitioner’s duties are as a state
employee and whether the practitioner was engaged in those duties at the time of an
injury.”       Id. at ¶23.   Dr. Naber’s duties as a state-employed professor of medicine

           1
           Plaintiffs have not asserted that Dr. Naber’s conduct was wanton and reckless and, therefore,
required him to train and educate residents who rotated through the emergency room of
Christ Hospital. 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,
160 Ohio App.3d 342, 2005-Ohio-1510, ¶47.
       {¶ 17} Based upon the totality of the evidence presented, the court concludes
that none of those methods of instruction occurred during the time period from noon
until Brandi had fled and Dr. Naber was summoned from the cubicle.                        Certainly,
education of students and residents may be accomplished by either direct instruction or
simple observation of medical procedures. Here, neither of those occurred between Dr.
Naber and Dr. Heitsch prior to Brandi’s flight. 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. Nonetheless, the court finds that the resident must be available to receive such
instruction.2   As noted by plaintiffs in their brief, the 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. As such, the court finds that Dr. Naber
was not educating Dr. Heitsch at the time of the alleged negligence. Therefore, the
court concludes that Dr. Naber was not acting within the scope of his state employment
with UC at the time that the alleged negligence occurred.
       {¶ 18} Consequently, the court concludes that Dr. Naber 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.

outside the scope of his state employment.
         2
           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.
                                               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




ROBERT HARVEY, Co-Admr., etc.,
et al.

      Plaintiffs

      v.

UNIVERSITY OF CINCINNATI

      Defendant
      Case No. 2009-03517

Judge Alan C. Travis

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 William Naber, 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.




                                           _____________________________________
                                           ALAN C. TRAVIS
                                           Judge
cc:


Brian M. Kneafsey Jr.                Bruce B. Whitman
Assistant Attorney General           3536 Edwards Road, Suite 100
150 East Gay Street, 18th Floor      Cincinnati, Ohio 45208
Columbus, Ohio 43215-3130

SJM/cmd
Filed November 24, 2009
To S.C. reporter December 29, 2009
