[Cite as Ries v. The Ohio State Univ. Med. Ctr., 2011-Ohio-6850.]



                                                         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

MATTHEW RIES, Admr., et al.,

        Plaintiffs,                                         Case No. 2010-10335

        v.                                                  Judge Joseph T. Clark

THE OHIO STATE UNIVERSITY
MEDICAL CENTER,

        Defendant.                                          JUDGMENT ENTRY

        {¶1} This matter came before the court for an evidentiary hearing to determine
whether Syed Husain, M.D. is entitled to civil immunity pursuant to R.C. 2743.02(F) and
9.86.
        {¶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} “[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
Case No. 2010-10335                        -2-                                    ENTRY

2743.02(A)(2), the Court of Claims must initially determine whether the practitioner is a
state employee. * * * 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.”
Theobald v. Univ. of Cincinnati, 111 Ohio St.3d 541, 2006-Ohio-6208, ¶30-31.
       {¶7} Plaintiffs’ decedent, Michael McNew, was referred to Dr. Husain for
treatment of a hemorrhoidal blood clot. On September 15, 2009, Dr. Husain removed
the clot during an outpatient procedure at defendant’s University Hospital East, and they
later spoke via telephone to discuss McNew’s condition. Plaintiffs allege that the care
and treatment rendered by Dr. Husain fell below the standard of care, and that, as a
result, McNew died on September 19, 2009, of “a cerebral hemorrhage from
thromdotytotenia, which went undiagnosed until after his death.” (Complaint, ¶17.)
       {¶8} At the hearing, Dr. Husain testified that he has been employed by defendant
since September 2008 as a clinical assistant professor in the department of surgery,
specializing in colo-rectal surgery. According to Dr. Husain, his duties as an assistant
professor include providing clinical care to patients, as well as teaching medical
students and residents in a clinical setting. Dr. Husain stated that he could neither
recall nor derive from the medical records whether students or residents were present
when he rendered care to McNew, but that he considered his treatment of McNew at
University Hospital East to be within his job duties nonetheless.
       {¶9} According to Dr. Husain, his practice is directed entirely by defendant, he is
not permitted to practice outside of defendant’s facilities, and he maintains no private
practice of medicine inasmuch as his employment agreement requires that all of his
professional activities be devoted to serving defendant.            Indeed, Dr. Husain’s
employment agreement with defendant states, in part: “You should understand that this
Case No. 2010-10335                          -3-                                 ENTRY

is a full-time offer with 100 percent of your professional efforts being devoted to the
Department of Surgery.” (Defendant’s Exhibit A.)
       {¶10} Dr. Husain acknowledged that as a condition of his employment with
defendant, he is also required to maintain employment with Ohio State University
Physicians (OSUP), but he described OSUP as an auxiliary entity that exists to
administer billing and collections for all of the clinical care rendered by defendant’s
practitioners.
       {¶11} Dr. Robert Bornstein, defendant’s Vice Dean of Academic Affairs, testified
that he is familiar with the duties and responsibilities of defendant’s faculty physicians,
and he explained that plaintiff’s position as a clinical assistant professor encompasses
two main duties – patient care and education. Dr. Bornstein explained that Dr. Husain
is required by defendant to provide clinical care regardless of whether residents or
students are present, and that Dr. Husain’s job performance is evaluated, in part, based
upon his clinical competence. According to Dr. Bornstein, the chair of the department of
surgery controls all aspects of Dr. Husain’s practice, including the type of work that he
performs and his work location. With regard to OSUP, Dr. Bornstein testified that it was
created by defendant’s board of trustees to administer the billing and collections
associated with the clinical care rendered by defendant’s practitioners, and that Dr.
Husain must belong to OSUP as a condition of his employment with defendant.
       {¶12} “[T]he 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.
       {¶13} Dr. Husain’s duties as a state-employed faculty physician include teaching
residents, and the evidence does not demonstrate that he was doing so when the
alleged negligence occurred. However, the court finds that Dr. Husain was a full-time
faculty physician who was required by defendant to provide clinical care, that his clinical
activities were controlled by defendant, that he was required to devote all of his
Case No. 2010-10335                        -4-                                    ENTRY

professional time and effort to the service of defendant, that OSUP functioned as the
business arm of defendant, and that Dr. Husain did not maintain a private practice.
Accordingly, the court concludes that Dr. Husain’s duties of employment included
providing clinical care and that he was engaged in such duties at the time of the alleged
negligence.
        {¶14} Therefore, the court finds that Dr. Husain was acting within the scope of his
state employment at all times pertinent hereto. Consequently, Dr. Husain 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 him based
upon the allegations in this case.
        {¶15} On a related matter, defendant’s November 1, 2011 motion for a protective
order, to prohibit plaintiffs from deposing Dr. Husain until such time as the court
determines whether he is entitled to civil immunity, is DENIED as moot.


                                          _____________________________________
                                          JOSEPH T. CLARK
                                          Judge
cc:
Daniel R. Forsythe                            David I. Shroyer
Karl W. Schedler                              536 South High Street
Assistant Attorneys General                   Columbus, Ohio 43215
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

Filed November 7, 2011
To S.C. reporter December 30, 2011
