[Cite as Moore v. Ohio State Univ. Med. Ctr., 2010-Ohio-4974.]

                                                        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




SAMUEL MOORE, et al.

       Plaintiffs

       v.

THE OHIO STATE UNIVERSITY MEDICAL CENTER

       Defendant
       Case No. 2010-07067

Judge Alan C. Travis

JUDGMENT ENTRY




        {¶ 1} On July 8, 2010, the court scheduled an evidentiary hearing for August 26,
2010, to determine whether Drs. Stanislaw Stawicki and Margaret Sawyer are entitled to
civil immunity pursuant to R.C. 2743.02(F) and 9.86. On August 26, 2010, plaintiffs’
counsel, Daniel Abraham, filed both a motion for leave to withdraw as counsel for
plaintiffs and a motion for a continuance of the evidentiary hearing. For good cause
shown, the court finds that the motion for leave to withdraw as counsel is in compliance
with L.C.C.R. 19, and it is GRANTED. Plaintiffs shall inform the court within 30 days of
the date of this entry whether they intend to proceed pro se or retain new counsel.
        {¶ 2} In addition, plaintiffs’ motion for a continuance of the evidentiary hearing
was DENIED and the hearing proceeded as scheduled.1
        {¶ 3} R.C. 2743.02(F) states, in part:
        {¶ 4} “A civil action against an officer or employee, as defined in section 109.36

        1
          Inasmuch as the physicians were present and prepared to testify regarding the issue of their
employment status, the court allowed the evidentiary hearing to go forward as scheduled. The court
specifically ORDERED that the issue of civil immunity may be reconsidered in toto upon plaintiffs’ motion
as the case proceeds. Plaintiffs’ former counsel did not participate in the proceedings.
Case No. 2010-07067                         -2-                       JUDGMENT ENTRY

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} 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. * * *
       {¶ 8} “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.)
       {¶ 9} Dr. Stawicki testified that he is board-certified in both general surgery and
surgical critical care, and that he has been employed by defendant since July 15, 2008,
Case No. 2010-07067                               -3-                           JUDGMENT ENTRY

as an assistant professor of surgery. Dr. Stawicki further stated that his duties as an
assistant professor included teaching medical students and residents.                        Dr. Stawicki
testified that he was on duty as an attending physician on May 13, 2009, when plaintiff2
was scheduled to undergo a cholecystectomy (surgical removal of the gallbladder); that
the procedure was initiated via laparoscope but was converted to an open procedure
when complications arose; and that both he and Dr. Sawyer, a fifth-year resident at the
time, performed the surgery together, in that he performed the critical portions and Dr.
Sawyer performed the non-critical portions of the procedure.
       {¶ 10} Dr. Sawyer testified that she completed her medical residency in general
surgery at defendant’s medical center on June 30, 2009; that she was the chief resident
on May 13, 2009; that she assisted Dr. Stawicki in plaintiff’s surgery as a part of her
residency training; and that she was an employee of defendant during the entirety of her
medical residency.
       {¶ 11} The court finds that both Drs. Stawicki and Sawyer were employed by the
state at defendant’s medical center.            Furthermore, inasmuch as Dr. Sawyer was a
resident at the time of plaintiff’s surgery, the court finds that she was acting on behalf of
the state at the time when the alleged negligence occurred.
       {¶ 12} With regard to Dr. Stawicki, the court finds that he was acting on behalf of
the state at the time when the alleged negligence occurred in that he was educating a
resident, Dr. Sawyer, at the time of the alleged negligence.
       {¶ 13} The court concludes that the duties of Drs. Stawicki and Sawyer, as a
state-employed professor of medicine and a state-employed medical resident,
respectively, included treating patients at defendant’s medical center and that Drs.
Stawicki and Sawyer were engaged in those duties at the time of the alleged
negligence. Therefore, the court concludes that Drs. Stawicki and Sawyer were acting
within the scope of their state employment at all times pertinent hereto.


       2
        The term “plaintiff” shall be used to refer to Samuel Moore throughout this entry.
Case No. 2010-07067                          -4-                     JUDGMENT ENTRY

          {¶ 14} Accordingly, the court finds that Drs. Stawicki and Sawyer are entitled to
immunity pursuant to R.C. 2743.02(F) and 9.86. Therefore, the courts of common pleas
do not have jurisdiction over any civil actions that may be filed against them based upon
the allegations in this case.




                                           _____________________________________
                                           ALAN C. TRAVIS
                                           Judge

cc:


Daniel N. Abraham                              Jeffrey L. Maloon
536 South High Street                          Jennifer A. Adair
Columbus, Ohio 43215                           Assistant Attorneys General
                                               150 East Gay Street, 18th Floor
                                               Columbus, Ohio 43215-3130

Joan Moore
Samuel Moore
1665 Marina Drive
Columbus, Ohio 43219

HTS/cmd
Filed October 5, 2010
To S.C. reporter October 12, 2010
