[Cite as Phillips v. Ohio State Univ. Med. Ctr., 2012-Ohio-3893.]




                                                          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



CARLA PHILLIPS

        Plaintiff

        v.

THE OHIO STATE UNIVERSITY MEDICAL CENTER

        Defendant

Case No. 2009-07971

Judge Clark B. Weaver Sr.

DECISION

        {¶ 1} An evidentiary hearing was conducted in this matter to determine whether
Carol Greco, M.D., is entitled to civil immunity pursuant to R.C. 2743.02(F) and 9.86. At
the close of proceedings, the court held the record open for the filing of the depositions
of Andrew Thomas, M.D., and Mark Landon, M.D., which were filed on February 6,
2012.1 The depositions shall be marked as Joint Exhibits 1 and 2, respectively, and they
are ADMITTED.
        {¶ 2} This case arises out of the medical treatment rendered to plaintiff, Carla
Phillips, on February 23, 2009, at The Ohio State University Medical Center in
Columbus, Ohio. In 2007, plaintiff visited Dr. Greco’s medical office located on Lane
Avenue. In 2009, plaintiff decided to undergo a myomectomy, a surgery to remove
fibroid tumors of the uterus. Inasmuch as plaintiff’s tumors were located within the
muscle of her uterus, an open incision or laparotomy was performed.                         Dr. Greco
estimated that she removed 30 fibroid tumors during the surgery, which lasted longer


        1
          Although the court thoroughly reviewed the deposition of Andrew Thomas, M.D., the court finds
that his testimony was not germane to the issue of whether Dr. Greco was an officer or employee of the
state as defined in R.C. 109.36.
than four hours. Subsequent to the procedure, it was discovered that a surgical sponge
had been left inside plaintiff’s body. Plaintiff underwent a second surgery to remove the
sponge.
       {¶ 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
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} “[I]n 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(A)(2), 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.” Theobald v. Univ. of Cincinnati, 111 Ohio St.3d 541, 2006-
Ohio-6208, ¶30.
       {¶ 8} “For purposes of R.C. 9.86 and 2743.02(F) ‘officer or employee’ must be
defined in accordance with R.C. 109.36(A).” State ex rel. Sanquily v. Court of Common
Pleas, 60 Ohio St. 3d 78, (1991).2


       2
        R.C. 109.36(A)(1) states:
       “As used in this section and sections 109.36 to 109.366 of the Revised Code: (A)(1) ‘Officer or
employee’ means any of the following:
        {¶ 9} On September 16, 2010, the parties entered into a stipulation that any fees
generated by Dr. Greco or her practice for the care and treatment of plaintiff were not
billed or collected by The Ohio State University (OSU), and that Dr. Greco received no
salary from OSU for her clinical care of plaintiff. The parties requested that proceedings
in this case be stayed pending a decision by the Supreme Court of Ohio in a related
case. On July 13, 2011, the Supreme Court issued its decision in Engel v. Univ. of
Toledo College of Med., 130 Ohio St.3d 263, 2011-Ohio-3375.
        {¶ 10} In Engel, supra, the Supreme Court of Ohio found that a volunteer clinical
faculty member of the University of Toledo College of Medicine, who performed surgery
on a patient at a private hospital while a third-year medical student from the College of
Medicine was observing, was not an officer or employee of the state. Although the
Supreme Court declined to adopt a formal test, it found the following factors to be
relevant in determining whether a physician is an officer or employee of the state: 1)
contractual relationship between the state and the alleged employee; 2) state control
over actions of the purported employee; and 3) payment by the state for services of the
alleged employee. Id., ¶10-16. The court further found that it must be determined
whether the physician was “serving in an elected or appointed position with the state”
within the meaning of R.C. 109.36(A)(1)(a). Id., ¶17.
        {¶ 11} Dr. Greco testified that she is a board certified obstetrician gynecologist
(OB/GYN) and that she is employed by the Kingsdale Gynecologic Division of
MaternOhio Clinical Associates. Since 1991, Dr. Greco has held a clinical appointment
with defendant’s college of medicine whereby she teaches residents clinical
gynecology, including surgery.               Dr. Greco stated that she receives no financial
compensation as a result of her appointment but that she has privileges to perform



         “(a) 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.
         “(b) A person that, at the time a cause of action against the person, partnership, or corporation
arises, is rendering medical, nursing, dental, podiatric, optometric, physical therapeutic, psychiatric, or
psychological services pursuant to a personal services contract or purchased service contract with a
department, agency, or institution of the state.
         “(c) A person that, at the time a cause of action against the person, partnership, or corporation
arises, is rendering peer review, utilization review, or drug utilization review services in relation to medical,
nursing, dental, podiatric, optometric, physical therapeutic, psychiatric, or psychological services pursuant
to a personal services contract or purchased service contract with a department, agency, or institution of
the state.
         “(d) A person who, at the time a cause of action against the person arises, is rendering medical,
nursing, dental, podiatric, optometric, physical therapeutic, psychiatric, or psychological services to
surgery at defendant’s hospital. Dr. Greco explained that if she scheduled a surgery for
one of her patients at defendant’s hospital, she is expected to allow residents to
observe the surgery as part of their clinical education. According to Dr. Greco, the
service she provides is teaching residents, and the benefit she receives is that residents
provide treatment and care to her patients who are admitted to defendant’s hospital. Dr.
Greco added that defendant provides her with parking privileges at the hospital. Dr.
Greco stated that the payment that she received as a result of the care that she
rendered to plaintiff came from plaintiff’s insurance carrier.
        {¶ 12} Daniel Pierce, administrator for the department of OB/GYN at OSU,
testified that in 2009, Dr. Greco held the status of clinical instructor, an unpaid position
in the auxiliary faculty; that as such, Dr. Greco did not have the responsibility to treat
patients in either the clinic or the labor and delivery unit; that Dr. Greco did not have any
obligation to deliver a certain number of babies at defendant’s hospital during the year;
that defendant did not collect any portion of Dr. Greco’s fees for her professional
services; and that defendant did not issue Dr. Greco a W-2 form in 2009. In addition,
Pierce testified that Dr. Greco did not practice medicine through the university’s practice
plan, OSUP, and that defendant did not provide any malpractice insurance coverage for
Dr. Greco. Pierce noted that for full-time faculty, defendant performs an annual review
and in-depth evaluation by the department chair.                  However, for auxiliary faculty,
defendant performs a “cursory” annual review solely to renew their appointment. Pierce
stated that Dr. Greco was encouraged but not required to allow residents to participate
in the care of her patients while they were admitted to defendant’s hospital.
        {¶ 13} Robert Bornstein, M.D., testified that he is both vice dean for academic
affairs at defendant’s college of medicine, and a professor of psychiatry, neurology, and
psychology. Dr. Bornstein described auxiliary faculty as unpaid individuals who are
given a title because of their voluntary activities. Dr. Bornstein stated that most auxiliary
faculty are private practitioners who want to be able to treat their patients at defendant’s
hospital. Dr. Bornstein stated that in order to practice medicine at defendant’s hospital,
one must have a faculty appointment.
        {¶ 14} According to Dr. Bornstein, members of the auxiliary faculty are not
considered employees of the university.              Dr. Bornstein added that the college of


patients in a state institution operated by the department of mental health pursuant to an agreement with
medicine does not have any control over auxiliary faculty’s medical practice, in that the
college does not bill for their professional services. Dr. Bornstein did state that auxiliary
faculty are expected to supervise residents if a resident is involved in the treatment or
care of an auxiliary faculty’s patient.
       {¶ 15} Mark Landon, M.D., testified that he is the chairman of the OB/GYN
department at defendant’s college of medicine. Dr. Landon testified that the full-time
faculty’s primary responsibility is teaching and education of medical students and
residents, as well as conducting clinical or basic science research. Dr. Landon noted
that all full-time faculty in the OB/GYN department are obligated to participate in various
education functions, including assigned supervision of residents for patients who do not
have a private physician, and being “on-call” at night. In contrast, voluntary or auxiliary
faculty are not assigned to supervise residents, and they do not participate in scheduled
didactic teaching responsibilities. Dr. Landon described voluntary faculty as physicians
engaged in the private practice of medicine, and noted that in virtually all of those
practices they primarily care for patients who have third-party medical insurance. Dr.
Landon stated that he has no control over the patients that auxiliary faculty see and that
he does not have the power to assign patients to auxiliary faculty members. Dr. Landon
noted that auxiliary faculty do not evaluate residents in terms of a formal or written
evaluation. Dr. Landon also stated that Dr. Greco was not considered an employee of
OSU; that the department of OB/GYN does not keep a personnel file on auxiliary
faculty; and that in 2009, less than one percent of OB/GYN residents’ operating room
training was provided by Dr. Greco or her colleagues.
       {¶ 16} Upon review of the evidence, the court finds that Dr. Greco did not have an
employment contract with defendant; that she was a volunteer/auxiliary physician with
defendant to acquire hospital privileges. The court further finds that defendant did not
control the care and treatment that Dr. Greco rendered to plaintiff: plaintiff was a patient
of Dr. Greco’s private medical practice who elected to have surgery performed by Dr.
Greco. Lastly, the court finds that Dr. Greco received no compensation from defendant
as a result of performing surgery on plaintiff at defendant’s hospital.
       {¶ 17} With regard to whether Dr. Greco was serving in an elected or appointed
office or position with the state pursuant to R.C. 109.36(A)(1)(a), nothing in the record


the department.”
shows that Dr. Greco was holding an elected office or position.3 Moreover, no evidence
in the record shows that Dr. Greco “possessed any sovereign functions of government
to be exercised by [her] for the benefit of the public either of an executive, legislative, or
judicial character.” See Engel, supra, quoting State ex rel. Newman v. Skinner, 128
Ohio St. 325, 327 (1934). Inasmuch as defendant’s hospital is a teaching hospital, it is
inevitable that residents will be involved in any care that takes place at that facility.
However, the court finds that Dr. Greco was not an officer or employee of the state of
Ohio as defined in R.C. 109.36. Therefore, based upon the totality of the evidence, the
court concludes that Carol Greco, 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 her based upon the allegations in this case.




       3
        Inasmuch as Dr. Greco did not have an employment contract with defendant, the court finds that
R.C. 109.36(A)(1)(b)-(d) do not apply.
                                               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



CARLA PHILLIPS

      Plaintiff

      v.

THE OHIO STATE UNIVERSITY MEDICAL CENTER

      Defendant

Case No. 2009-07971

Judge Clark B. Weaver Sr.

JUDGMENT ENTRY

       {¶ 18} 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 Carol Greco, 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 her
based upon the allegations in this case.



                                           _____________________________________
                                           CLARK B. WEAVER SR.
                                           Judge

cc:


Brian M. Kneafsey Jr.                        David I. Shroyer
Assistant Attorney General                   536 South High Street
150 East Gay Street, 18th Floor              Columbus, Ohio 43215
Columbus, Ohio 43215-3130
002
Filed April 10, 2012
To S.C. reporter August 24, 2012
