[Cite as Ries v. Ohio State Univ. Med. Ctr., 137 Ohio St.3d 151, 2013-Ohio-4545.]




   RIES, ADMR., ET AL., APPELLANTS, v. OHIO STATE UNIVERSITY MEDICAL
                                   CENTER, APPELLEE.
         [Cite as Ries v. Ohio State Univ. Med. Ctr., 137 Ohio St.3d 151,
                                    2013-Ohio-4545.]
Governmental tort immunity—R.C. 9.86—Personal immunity of state employee—
        Doctor employed by state university to provide clinical care to patients.
    (No. 2012-0954—Submitted April 10, 2013—Decided October 17, 2013.)
               APPEAL from the Court of Appeals for Franklin County,
                           No. 11AP-1004, 2012-Ohio-1766.
                                ____________________
        O’DONNELL, J.
        {¶ 1} Matthew Ries, administrator of the estate of Michael McNew, and
Cyrelle McNew, McNew’s surviving spouse, appeal from a judgment of the
Tenth District Court of Appeals affirming the determination that Syed G. Husain,
M.D., is immune from personal liability for treatment provided to Michael
McNew at the Ohio State University Medical Center. At issue in this case is
whether a faculty member of a state medical school who is also employed by the
school’s nonprofit medical-practice corporation is immune from personal liability
for providing clinical care to a patient with neither a medical student nor a
resident present during the treatment or procedure.
        {¶ 2} R.C. 9.86 provides immunity to state employees unless the
employee acts manifestly outside the scope of employment, with malicious
purpose, in bad faith, or in a wanton or reckless manner. For purposes of this
statute, a state employee acts within the scope of employment if the employee’s
actions advance the interests of the state as defined by the duties of the state
employee.
                             SUPREME COURT OF OHIO




       {¶ 3} Here, Husain’s duties as a state employee included providing
clinical care to patients, whether or not he was actively engaged in teaching at that
time. Thus, in treating McNew, Husain served the interests of the Ohio State
University Medical Center and acted within the scope of employment. He is
therefore entitled to personal immunity pursuant to R.C. 9.86, and we affirm the
judgment of the court of appeals.
                          Facts and Procedural History
       {¶ 4} In September 2008, Dr. Syed G. Husain joined the faculty of the
Ohio State University College of Medicine in the Department of Surgery. As an
assistant professor on the clinical track, he had the primary responsibilities of
providing clinical care to patients and teaching medical students and residents.
His letter offering employment stated that the Department of Surgery expected
him to be an active teaching member of the full-time faculty, to engage in
research, and to provide service to the institution, the community, and the
profession as “measured by evidence of a high level of clinical competence.”
Although his contract with the university guaranteed a base salary, it
contemplated that he would “generate sufficient funds through clinical revenue,
extramural funding, teaching activities, or administrative assignments to fund
[his] salary and benefits.” It also required him to devote 100 percent of his
professional efforts to the Department of Surgery, with patient-care revenue
reverting to OSU Surgery, L.L.C.
       {¶ 5} The offer letter further specified that “[p]articipation in the College
Central Practice Group is a requirement of employment.”            The Ohio State
University Board of Trustees established the College Central Practice Group to
manage income generated by faculty members from providing patient care and
organized it as Ohio State University Physicians, Inc. (“OSUP”), a nonprofit
corporation. OSUP is “a tax-exempt medical practice plan corporation which was
created to advance the purposes of the medical education program and related




                                         2
                                January Term, 2013




research and clinical service activities of the Ohio State University College of
Medicine and Public Health (‘COMPH’).” The board of trustees further required
participation in this practice plan as “a condition of faculty employment.”
       {¶ 6} Husain separately contracted with OSUP to “permit OSUP or its
designee to bill and collect professional fees for all faculty services including, but
not limited to clinical services in the conduct of the COMPH mission.” That
employment agreement also provided that his “practice activities shall be
rendered to patients in connection with the clinical practice activities of the
medical education program of COMPH.”               Pursuant to this contract, the
university’s senior vice president for health services approved all compensation,
and “[s]ervices performed and compensation received by [Husain] under this
Agreement are specifically recognized as being in fulfillment of obligations which
are part of the concurrent faculty appointment and employment by COMPH.”
       {¶ 7} The Department of Surgery assigned Husain to staff the colorectal
surgery clinic at University Hospital East. Medical students and residents rotate
through the clinic as part of their education and training, and members of the
clinical faculty such as Husain generally teach by allowing students and residents
to observe and participate in the treatment of patients; however, instruction also
occurs outside the presence of the patient when faculty members review charts
and discuss cases with students and residents.
       {¶ 8} On September 15, 2009, Michael McNew consulted with Husain at
the clinic, complaining of an acutely painful hemorrhoid in addition to nausea,
diarrhea, sore throat, and fatigue. Husain diagnosed a blood clot in the
hemorrhoid, incised it, removed the clot, and prescribed a narcotic for pain.
Although a medical student or resident was present at the clinic that day, Husain
could not remember whether one had observed this treatment, nor do McNew’s
records indicate the presence of a student or resident.




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       {¶ 9} Following McNew’s discharge, he called Husain more than once
seeking help with pain management and allegedly complained of bleeding,
bruising, and shortness of breath. Husain could not recall whether a medical
student or resident observed the telephone consultations.
       {¶ 10} McNew died on September 19, 2009, from an undiagnosed
cerebral hemorrhage caused by thrombocytopenia, a hematological malignancy
characterized by an abnormally small number of platelets in the circulating blood.
Stedman’s Medical Dictionary 1808 (26th Ed.1995).
       {¶ 11} On September 3, 2010, Matthew Ries, the administrator of
McNew’s estate, and Cyrelle McNew, his surviving spouse, brought this action in
the Court of Claims against the Ohio State University Medical Center, asserting
claims for negligence, medical malpractice, wrongful death, and loss of
consortium. They also filed a civil action against Husain and OSUP in the
Franklin County Common Pleas Court, which the common pleas court stayed
pending a determination by the Court of Claims regarding Husain’s immunity
from suit.
       {¶ 12} The Court of Claims conducted a hearing on that issue, and the
Ohio State University Medical Center presented the testimony of Dr. Robert Alan
Bornstein, the vice dean for academic affairs in the College of Medicine.
Bornstein testified that the focus of faculty members on the clinical track is
patient care and education.     He noted that patient care is essential to the
educational mission of the medical school because “in order for us to exercise our
obligation to teach students, we have to have a range of patients, and we have to
have physicians who are there to take care of those patients.” He also explained
that patient care furthers the university’s interests because its reputation in
providing clinical care is a component in ranking medical centers nationally, and
“the reputation of our faculty, whether it’s for research, for teaching or clinical




                                         4
                                January Term, 2013




service, is central to our interests.” Moreover, the revenue generated by the
faculty is contributed to the university to support its academic programs.
       {¶ 13} Bornstein clarified that the term “service” as used in the letter of
offer means providing care to patients: “[C]linical service is * * * one of the
components of faculty activity. Some clinical activity is done with a student or
resident; some is not. It is still their responsibility as a faculty member to take
care of patients.” He also testified, “Faculty in the College of Medicine controls
100 percent of the faculty member’s efforts: Teaching, service and scholarship.
Everything that they do they are doing as a member of our faculty.” In his view,
the clinical care of patients is therefore within the scope of the duties of a faculty
member, regardless of whether a student or resident is present at the time of the
treatment.
       {¶ 14} The Court of Claims acknowledged that Husain’s duties as a
member of the university faculty included teaching but found that “the evidence
does not demonstrate that he was doing so when the alleged negligence occurred.”
Nonetheless, it determined that Husain’s duties as a faculty member included
providing clinical care to patients for the Ohio State University Medical Center
and that he had been acting within the scope of his state employment while
treating McNew. The Court of Claims therefore concluded that Dr. Husain was
immune and that the common pleas court lacked jurisdiction over the civil action
filed against him.
       {¶ 15} Ries appealed to the Tenth District Court of Appeals, which
affirmed the determination that Husain was immune from suit, holding that his
employment with the state required him to care for patients at facilities operated
by the Ohio State University Medical Center. The appellate court explained:


       [P]hysicians with the employment contracts such as those provided
       to Dr. Husain wear two hats while treating patients. One hat says



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       “[the Ohio State University Medical Center]” and the other says
       “OSUP.” Dr. Husain was wearing both while treating McNew.
       Since one of the hats involved employment duties with a
       governmental entity, he was entitled to governmental immunity
       under R.C. 9.86 and R.C. 2743.02(F).


2012-Ohio-1766, ¶ 13.
                             Arguments on Appeal
       {¶ 16} On appeal to this court, Ries contends that “[a] physician whose
state employment duties are education-related must be shown to be engaging in
education-related activity at the time he allegedly renders negligent care in order
to qualify for civil immunity pursuant to R.C. 9.86 and R.C. 2743.02(F).”
According to Ries, Husain’s duties as a state employee were limited to conducting
research and teaching medical students and residents, and here there is no
evidence that he either engaged in research or taught at the time he treated
McNew. Further, he notes that Husain had two separate contracts: one as a
faculty member of the College of Medicine that paid him a salary for research,
teaching, and allowing medical students and residents to observe his clinical
practice, and another contract governing his personal medical practice (i.e., when
no student or resident is present) with OSUP, a private corporation operating
independently from the Ohio State University Medical Center. Ries asserts that
providing clinical care to patients, by itself, “is not a recognized function of a
state university teaching hospital,” and because Husain treated McNew in the
course of his personal medical practice, he is not immune in the circumstances.
       {¶ 17} The Ohio State University Medical Center urges that Dr. Husain
acted within the scope of his state employment and is therefore immune from
liability for claims arising from his treatment of McNew. Relying on Theobald v.
Univ. of Cincinnati, 111 Ohio St.3d 541, 2006-Ohio-6208, 857 N.E.2d 573, it




                                        6
                                  January Term, 2013




contends that the scope of state employment turns on the physician’s duties as a
state employee. Here, it explains, Dr. Husain’s contract as a member of the
university faculty required him to provide clinical care to patients like McNew,
whether or not a student or resident observed that treatment, the university
controlled his clinical practice and his teaching, and OSUP functioned only as a
billing and collections entity.
       {¶ 18} Accordingly, the issue here is whether a faculty member of a state
medical school who is also employed by the school’s nonprofit medical-practice
corporation acts within the scope of employment when treating a patient outside
the presence of a medical student or resident.
                           Immunity of State Employees
       {¶ 19} The personal immunity of a state employee is governed by R.C.
9.86, which provides:


               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.


       {¶ 20} R.C. 2743.02(F) vests the Court of Claims with exclusive
jurisdiction to determine whether a state employee is immune from personal
liability in a civil action allowed by R.C. 9.86. As we explained in Theobald v.
Univ. of Cincinnati, 111 Ohio St.3d 541, 2006-Ohio-6208, 857 N.E.2d 573, ¶ 14,



                                          7
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“the Court of Claims’ analysis of personal immunity has two parts: Was the
individual a state employee, and if so, was the individual acting within the scope
of employment when the cause of action arose?” We further stated:


              A health-care practitioner who has dual status as a private
       practitioner and as an employee of a state medical institution is
       potentially immune from liability for medical malpractice only
       when he or she is performing duties for the state. Unless he or she
       acted “with malicious purpose, in bad faith, or in a wanton or
       reckless manner” or manifestly outside the scope of employment,
       the state employee is not liable for injury caused in the
       performance of those duties.


(Emphasis added.) Theobald at ¶ 16.
       {¶ 21} We noted that the Revised Code does not define “scope of
employment,” but we observed that “[t]he concept generally denotes an agency
relationship in which the agent or employee is engaged in an activity that is
logically related to the business of the principal or employer.” Theobald at ¶ 15.
We held, “For purposes of personal immunity under R.C. 9.86, a state employee
acts within the scope of employment if the employee’s actions are ‘in furtherance
of the interests of the state.’ Conley v. Shearer (1992), 64 Ohio St.3d 284, 287,
595 N.E.2d 862. Thus, a state employee’s duties should define the scope of
employment.” Id.
       {¶ 22} Notably, in Theobald we rejected the argument that the use of
private practice plans to bill and collect payments for the services that clinical
faculty members provide as part of their practice of medicine shows that a
physician has acted outside the scope of state employment. Rather, we explained:




                                        8
                                January Term, 2013




       The financial factors may be relevant to the practitioner’s status as
       a state employee; however, they do not necessarily establish
       whether he or she was within the scope of that employment at the
       time a cause of action arose. Instead, 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. Thus, proof of the content of the
       practitioner’s duties is crucial. The Court of Claims must have
       evidence of those duties before it can be determined whether the
       actions allegedly causing a patient’s injury were “in furtherance of
       the interests of the state” or, in other words, within the scope of
       employment.


Theobald, 111 Ohio St.3d 541, 2006-Ohio-6208, 857 N.E.2d 573, at ¶ 23.
       {¶ 23} Thus, Theobald did not establish a categorical rule that a physician
who is a member of the faculty of a state medical college is immune for providing
clinical care only while teaching a medical student or resident. Rather, the scope
of employment is a fact-based inquiry that turns on proof of the employee’s
specific job description with the state and focuses on whether the employee’s
conduct is related to and promotes the state’s interests.
       {¶ 24} In addition, the fact that a state employee is also employed by a
private party is not determinative. As the court in Theobald stated, “R.C. 9.86 is
inclusive and makes no exception for persons who may simultaneously have other
employment interests. It provides immunity for all state employees as long as they
are acting within the scope of their employment when the injury occurs.”
Theobald at ¶ 25.
       {¶ 25} And following Theobald, in State ex rel. Sawicki v. Lucas Cty.
Court of Common Pleas, 126 Ohio St.3d 198, 2010-Ohio-3299, 931 N.E.2d 1082,



                                          9
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we recognized that it is possible for a physician to be immune as an agent of the
state when the physician simultaneously acted on behalf of a private practice
group. Id. at ¶ 20. The court explained in Sawicki, “ ‘[A] single act may be done
to effect the purposes of two independent employers. * * * He may be the servant
of two masters, not joint employers as to the same act, if the act is within the
scope of his employment for both.’ ” Id. at ¶ 17, quoting Restatement of the Law
2d, Agency, Section 226, at Comment a (1958).
       {¶ 26} In this case, it is not disputed that Husain is a state employee, and
the evidence demonstrates that he acted on behalf of the state at the time he
treated McNew. The Department of Surgery, not OSUP, directed and controlled
his clinical care of patients and assigned him to staff the university’s colorectal
surgery clinic, where McNew presented. Husain’s contract with the university
required him to treat patients at that facility, to participate in OSUP, and to fund
his own faculty salary and benefits through outside sources, including clinical
revenue from his treatment of patients.
       {¶ 27} In addition, Husain’s employment agreement with OSUP provided
that the corporation would bill and collect professional fees for “all faculty
services” and specified that any compensation received pursuant to that agreement
fulfilled the duties of his faculty appointment and his employment with the
College of Medicine. Although the record does not detail the precise ownership
structure of OSUP, it does establish that the board of trustees authorized its
creation, that “it exists within the University structure,” and that revenue it
generates is contributed back to the university to support academic programs.
       {¶ 28} Even if no medical student or resident observed the clinical
services Husain rendered, and even though the university organized its medical-
practice plan as a private corporation, Husain’s clinical practice advanced the
interests of the state because he staffed a faculty clinic and treated patients at the
Ohio State University Medical Center, he contributed to its national ranking and




                                          10
                               January Term, 2013




reputation, and he generated revenue that supported the academic mission of the
university.
       {¶ 29} Husain therefore provided clinical services at the Ohio State
University Medical Center and its facilities within the scope of his employment as
a faculty member of the university and a state employee. Accordingly, because
he treated McNew in that capacity, he is entitled to personal immunity.
                                   Conclusion
       {¶ 30} Pursuant to R.C. 9.86, a state employee is immune from personal
liability unless the employee’s actions were manifestly outside the scope of his
employment or unless the employee acted with malicious purpose, in bad faith, or
in a wanton or reckless manner. A state employee acts within the scope of
employment if the employee’s actions advance the interests of the state as defined
by the duties of the state employee.
       {¶ 31} Here, Husain’s duties as a state employee included providing
clinical services to patients, and at the time he treated McNew, he acted within the
scope of his state employment. Accordingly, he is entitled to personal immunity
pursuant to R.C. 9.86. We therefore affirm the judgment of the court of appeals.
                                                                Judgment affirmed.
       O’CONNOR, C.J., and KENNEDY and HENDON, JJ., concur.
       LANZINGER, J., concurs in judgment only.
       PFEIFER and O’NEILL, JJ., dissent.
       SYLVIA SIEVE HENDON, J., of the First Appellate District, sitting for
FRENCH, J.
                             ____________________
       O’NEILL, J., dissenting.
       {¶ 32} This case represents a very dangerous precedent, and I must,
therefore, respectfully dissent. The majority has needlessly expanded on this
court’s holding in Theobald v. Univ. of Cincinnati, 111 Ohio St.3d 541, 2006-



                                        11
                             SUPREME COURT OF OHIO




Ohio-6208, 857 N.E.2d 573, and in the sweep of a pen has extended
governmental tort immunity to private corporations that utilize state facilities for
profit. In Theobald, this court held that a doctor working for a university is
immune from personal liability if he is, in fact, educating a student or resident
when the negligence occurs. Id. at ¶ 31. That is an educational relationship that
makes sense, and one that has withstood the test of time. The taxpayers of Ohio
are well served, and the doctors who educate our future physicians are well
served, when there is an acknowledgement that they are doing the state’s business
when they are teaching student doctors in a state-university setting.
       {¶ 33} But the majority abandons that rule and adopts a standard that
allows the university to decide and declare by contract that all of a physician’s
duties, no matter how far they may be removed from educating students, are
entitled to state-sanctioned immunity. That is the wrong approach, and it is
simply illogical and contrary to statute to provide immunity for acts that are
completely unrelated to the education of students. The net result is that the
burden of paying for negligent acts will transfer from private insurance companies
to the taxpayers of Ohio. It will also diminish the role of juries in the Ohio justice
system, as jury trials are not available in the Ohio Court of Claims for claims
against the state. R.C. 2743.11. Can we really say that is what the legislature
intended? There is no good reason to extend immunity to physicians who are not
actively training students in the practice of medicine.
       {¶ 34} Prior to Theobald, Ohio courts were consistent in their holdings
that a student had to be present in order for there to be immunity for the doctor.
For example, in Hopper v. Univ. of Cincinnati, 10th Dist. Franklin No. 99AP-787,
2000 WL 1059672 (Aug. 3, 2000), the court held that since the physician was
supervising residents while treating the patient, the conduct was within the scope
of his employment as a state employee. See also Balson v. Ohio State Univ., 112
Ohio App.3d 33, 677 N.E.2d 1216 (10th Dist.1996) (doctors not entitled to




                                         12
                               January Term, 2013




immunity, because a separate practice plan was the employer and no students
were present for the procedure); Katko v. Balcerzak, 41 Ohio App.3d 375, 536
N.E.2d 10 (10th Dist.1987) (doctor billing through his private medical partnership
with no student present resulted in a finding of no immunity); Johnson v. Univ. of
Cincinnati, 10th Dist. Franklin No. 04AP-926, 2005-Ohio-2203 (even though
physicians were employed by the medical school as faculty and conducted a
clinical practice supervising residents, no students were present for the procedure,
so there was no immunity); Harrison v. Univ. of Cincinnati Hosp., 10th Dist.
Franklin No. 96API01-81, 1996 WL 362055 (June 28, 1996) (doctor was a
member of a practice plan as a faculty member but since no student was present
for the procedure, he was outside the scope of his state employment); Hans v.
Ohio State Univ. Med. Ctr., Ct. of Cl. No. 2001-10140, 2005-Ohio-4457 (Court of
Claims determined that because the physician performed the procedure while
being observed by a student, he was acting within the scope of his employment
and therefore entitled to immunity); Kaiser v. Ohio State Univ., 10th Dist.
Franklin No. 02AP-316, 2002-Ohio-6030 (attending physician acted as a
supervisor and, as such, was entitled to immunity, since he was acting within the
scope of his employment).
       {¶ 35} In Theobald, this court noted many of these cases and
acknowledged that the focus of the analysis needed to be on the scope of
employment with the state and on whether the physician was engaged in those
duties at the time of the injury. Theobald, 111 Ohio St.3d 541, 2006-Ohio-6208,
857 N.E.2d 573, at ¶ 23-27. The bedrock principle that this court should uphold
is that in the absence of a student, a procedure performed by a physician should
not be protected by the doctrine of immunity. State universities exist to educate.
If education is not taking place, immunity does not apply.          Clearly, while
educating is a legitimate function of the state, competing with private hospitals is
not. Providing universities and the doctors who operate in university hospitals



                                        13
                             SUPREME COURT OF OHIO




with an economic edge is contrary to precedent and not a function of the
judiciary.
       {¶ 36} Based upon the opinion by the majority, state university teaching
hospitals can now provide independent medical care separate and apart from their
status as a teaching institution, and while doing so, their physicians will enjoy the
benefits of immunity. All they should need from this point forward is the state
university logo on the door and a contract calling everyone inside a faculty
member.      The student doctors, while still welcome to attend, are no longer
necessary for immunity to attach.
       {¶ 37} If the theory of the majority is truly the law of Ohio, the hospitals
run by state universities and staffed by physicians who work for private for-profit
corporations have a huge competitive advantage over private hospitals. They are
able to limit their damage exposure due to lower caps in the Court of Claims,
while also eliminating jury trials, yet operate in all other ways like the private
hospitals that they compete with. Why is it necessary to give state hospitals this
kind of economic advantage? Unless those physicians are actively involved in
training new physicians or researching new procedures, there is no justification
for providing them with such special treatment.          While furthering a state
hospital’s societal contribution by providing medical care combined with
education is a worthy accomplishment, merely advancing the state hospital’s
competitive economic advantage is not. Moreover, it is outside of the powers of
the judiciary to make that kind of policy change.
       {¶ 38} Additionally, under the majority’s holding, once immunity
attaches, mere negligence is no longer the standard that physicians will be held to
in performing their important procedures. These “state employee” doctors can
now theoretically operate at a lower standard of care without fear of reprisal,
provided that they do not go over the line in a wanton or reckless manner, or with
malicious purpose.    This decision sets a dangerous precedent.        Stated more




                                         14
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precisely, a state-university doctor will no longer be held to the same standard of
care that is applied to his colleagues down the street in a competing facility not
owned by the state. Simple negligence that arguably causes death, as is alleged
herein, does not rise to the level of wanton misconduct. I understand and embrace
immunity for the purpose of training our doctors of the future.         That is a
legitimate state activity. Creating an insurance-friendly environment in which
for-profit corporations can find a safe haven is not.
       {¶ 39} Accordingly, I respectfully dissent.
       PFEIFER, J., concurs in the foregoing opinion.
                             ____________________
       Colley, Shroyer & Abraham Co., L.P.A., and David I. Shroyer, for
appellants.
       Michael DeWine, Attorney General, Peter K. Glenn-Applegate, Deputy
Solicitor, and Karl W. Schedler and Daniel R. Forsythe, Assistant Attorneys
General, for appellee.
       Giorgianni Law, L.L.C., and Paul Giorgianni, urging reversal for amicus
curiae, Ohio Association for Justice.
                           ________________________




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