[Cite as Abraham v. State, 2011-Ohio-7005.]




                                                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

JOANN C. ABRAHAM, et al.

       Plaintiffs

       v.

STATE OF OHIO

       Defendant

Case No. 2010-07741

Judge Clark B. Weaver Sr.

DECISION


        {¶1} An evidentiary hearing was conducted in this matter to determine whether
Mark Harding, M.D., and Sasidhar Kilaru, M.D., are entitled to civil immunity pursuant to
R.C. 2743.02(F) and 9.86. This case arises out of the medical treatment rendered to
plaintiff, JoAnn Abraham, on October 12-14, 2007, at Good Samaritan Hospital in
Cincinnati, Ohio.
        {¶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
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.
      {¶7} Drs. Harding and Kilaru assert that they are entitled to civil immunity
inasmuch as they were teaching one or more resident physicians affiliated with the
University of Cincinnati (UC) at all times relevant to plaintiffs’ complaint. There is no
dispute that resident physicians affiliated with UC performed clinical rotations at Good
Samaritan and other hospitals in the Cincinnati area pursuant to a “Master Affiliation
Agreement for Graduate Medical Education” between TriHealth (the parent company of
Good Samaritan Hospital), UC, and University Hospital, Inc. (Defendant’s Exhibit A.)
      {¶8} At the hearing, however, Drs. Harding and Kilaru each testified that they do
not hold faculty appointments or any other offices or positions with UC, that they do not
practice under the direction of UC, and that their only relationship to UC is teaching UC
residents who rotate through Good Samaritan Hospital.
      {¶9} The court notes that in the post-hearing brief submitted by Drs. Harding and
Kilaru, they rely on the decision of the Tenth District Court of Appeals in Engel v. Univ.
of Toledo College of Medicine, 184 Ohio App.3d 669, 2009-Ohio-3957, to argue that
their lack of any faculty appointment with UC does not deprive them of personal
Case No. 2010-07741                       -2-                                   ENTRY

immunity under R.C. 9.86. However, the Supreme Court of Ohio recently reversed the
appellate decision, holding that a physician with no contractual relationship with the
state, whose actions were not controlled by the state, who was not paid by the state,
and who held no appointed office or position with the state, was not entitled to personal
immunity pursuant to R.C. 9.86. See Engel v. Univ. of Toledo College of Medicine, Slip
Opinion No. 2011-Ohio-3375.
      {¶10} Based upon the totality of the evidence, the court concludes that Mark
Harding, M.D., and Sasidhar Kilaru, M.D., were not employees of the state of Ohio and
that they are not entitled to immunity pursuant to R.C. 9.86 and 2743.02(F).
Accordingly, the courts of common pleas have jurisdiction over any civil actions that
may be filed against them based upon the allegations in this case.
                                              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



JOANN C. ABRAHAM, et al.

      Plaintiffs

      v.

STATE OF OHIO

      Defendant
      Case No. 2010-07741

Judge Clark B. Weaver Sr.

JUDGMENT ENTRY


       {¶11} 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 Mark Harding, M.D.,
and Sasidhar Kilaru, M.D., are 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 them based upon the allegations in this case.
       {¶12} Inasmuch as all claims against the state were dismissed on October 12,
2010, and this case remained pending for the limited purpose of determining whether
Drs. Harding and Kilaru are entitled to immunity, plaintiffs’ complaint is DISMISSED. All
pending motions are DENIED as moot. Court costs are assessed against plaintiffs.
The clerk shall serve upon all parties notice of this judgment and its date of entry upon
the journal.
Case No. 2010-07741                -2-                               ENTRY


                                  _____________________________________
                                  CLARK B. WEAVER SR.
                                  Judge

cc:


Brian M. Kneafsey, Jr.              Frederick H. Green
Assistant Attorney General          4015 Executive Park Drive, Suite 230
150 East Gay Street, 18th Floor     Cincinnati, Ohio 45241
Columbus, Ohio 43215-3130

Teri A. Wallace                     James P. Triona
1014 Vine Street, Suite 1919        Paul J. Vollman
Cincinnati, Ohio 45202              2021 Auburn Avenue
                                    Cincinnati, Ohio 45219


Filed December 5, 2011
To S.C. reporter March 5, 2012
