[Cite as Chappelear v. Ohio State Univ., 2009-Ohio-7059.]

                                                        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




SUSAN CHAPPELEAR, etc., et al.

       Plaintiffs

       v.

THE OHIO STATE UNIVERSITY MEDICAL CENTER

       Defendant
       Case No. 2008-02703

Judge Clark B. Weaver Sr.

DECISION




        {¶ 1} An evidentiary hearing was conducted in this matter to determine whether
Sheldon Simon, M.D., is entitled to civil immunity pursuant to R.C. 2743.02(F) and 9.86.
Upon review of evidence presented at the hearing, the court makes the following
determination.
        {¶ 2} R.C. 2743.02(F) states, in part:              “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.”
        {¶ 3} R.C. 9.86 states, in part:
       {¶ 4} “[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.”
       {¶ 5} On October 14, 2009, the parties filed a “joint partial stipulation of facts
relevant to immunity” wherein they state in pertinent part as follows:
       {¶ 6} “1.    At all times relevant herein Susan Chappelear was a patient at
Columbus Children’s Hospital (CCH) in Columbus, Ohio.
       {¶ 7} “2.    CCH is a private hospital that is not owned or operated by The Ohio
State University. It is not part of any state university, and is not an instrumentality of the
State of Ohio.
       {¶ 8} “3.    In September 1997, Dr. Sheldon Simon was employed by the
defendant, Ohio State University, as the chief of the Division of Orthopedic Surgery, in
the Department of Surgery of the OSU College of Medicine. Dr. Simon’s duties and
responsibilities included the education and training of OSU orthopedic surgery
residents. Part of the training of residents in orthopedic surgery requires them to rotate
through a program that provides orthopedic surgery services to pediatric patients.
During the several months of the year that Dr. Simon was assigned to be on duty as an
orthopedic surgeon at CCH, he would perform surgery with the assistance of OSU
residents who acted under his direct supervision.
       {¶ 9} “4.    On or about September 1, 1997, plaintiff Susan Chappelear was
admitted to CCH, and underwent a surgery performed by Dr. Simon to repair a fracture
of her humerus. During that surgery, Dr. Simon was assisted by, and was supervising,
Dr. Jeffrey Ralston who was an OSU orthopedic surgery resident. The surgery was
completed in the early morning hours of September 2, 1997. Susan Chappelear was
discharged from CCH on September 2, 1997, but by that time Dr. Simon had left the
hospital.
       {¶ 10} “5.   On September 3, 1997, Susan Chappelear, who was then five years
old, returned to the Orthopedic Fracture Clinic at CCH. This was not a scheduled clinic
visit, and she complained of pain in her fingers, and that her cast was tight. She was
seen by Dr. Doug Flory, who was a resident employed by Mt. Carmel Hospital, and was
training in their orthopedic residency program. Dr. Flory was not employed by OSU,
and was not enrolled in the OSU residency training program. Dr. Flory saw Susan, and
claims that he consulted with one of the attending surgeons at CCH. Although he is not
sure which attending surgeon he consulted, he is certain that it was not Dr. Simon.
After the cast was trimmed and rewrapped, Susan was discharged to home.
       {¶ 11} “6.      Susan returned to the clinic on September 9 for her scheduled one
week follow-up visit and was seen by Dr. Ralston. He was supervised by Dr. Simon.
Susan was discharged and instructed to return in two weeks.
       {¶ 12} “7.      Susan returned again on September 23, and again was seen by Dr.
Ralston who was supervised by Dr. Simon. She was discharged from the clinic and
instructed to return in three weeks.
       {¶ 13} “8.      Susan returned on October 14, and was seen by Dr. Timothy
Kavanaugh, an OSU resident who was supervised by Dr. Simon. At that visit she was
noted to have a possible contracture of her arm, and was subsequently diagnosed with
a neurologic injury and contracture of her arm.
       {¶ 14} “9.      Plaintiffs’ claim against Dr. Simon is that he deviated from accepted
standards of care in that on September 2, 1997, after he completed his surgery, he was
obligated to either (1) instruct the CCH staff that Susan should not be discharged that
day and should not be discharged until he returned to see her, or (2) place an order on
her chart that if she were to be discharged on September 2 that if she returned to clinic
prior to her scheduled one week follow up visit that he was to be notified, and that he
was to see her.
       {¶ 15} “* * *
       {¶ 16} “11. The parties agree and stipulate that if any claim is brought against Dr.
Simon in Franklin County Court of Common Pleas Case No. 07-CVA-06-07563 based
upon an alleged failure to comply with the appropriate standard of care during the direct
supervision of Dr. Flory, then such a claim does not arise out of any employment with
The Ohio State University, and that Dr. Simon is not entitled to immunity with regard to
any such claims under the express terms of R.C. 9.86. It is agreed that the claim
outlined in paragraph 9 is not a claim that is based upon an alleged failure to comply
with the appropriate standard of care during the direct supervision of Dr. Flory.”
       {¶ 17} 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.”        Theobald v. University of
Cincinnati, 111 Ohio St.3d, 2006-Ohio-6208, ¶30. The court finds that, based upon
paragraph 3 of the parties’ stipulation, Dr. Simon was a state employee.
       {¶ 18} Thus, the issue before the court is whether Dr. Simon was acting on
behalf of the state at the time when the alleged negligence occurred and, inasmuch as
Dr. Simon’s duties included the education of residents, whether he was in fact educating
a resident at the time of the alleged negligence.
       {¶ 19} At the hearing, counsel presented oral argument and joint exhibits. The
parties agree that Dr. Flory is not entitled to immunity because he was not a student in
defendant’s residency program. The parties also agree that Dr. Ralston is entitled to
immunity, because he was student in defendant’s residency program. Plaintiffs have no
criticism of the surgery that Dr. Simon performed with Dr. Ralston’s assistance.
However, plaintiffs argue that Dr. Simon is not entitled to immunity because his alleged
negligent conduct, the failure to convey information regarding patient care, cannot be
construed as education or training of a resident.
       {¶ 20} Defendant contends that Dr. Simon is entitled to immunity for the following
reasons: 1) he was educating and training an OSU resident during the surgery; 2) Dr.
Ralston participated in the surgery and wrote the discharge summary while under Dr.
Simon’s supervision; and 3) any allegations of negligence with regard to Dr. Simon are
related to the care and treatment of Susan that either he or Dr. Ralston provided.
       {¶ 21} The court is persuaded by the fact that Dr. Ralston was present during the
surgery for the purpose of education that Dr. Simon was furthering the interests of the
state in his care and treatment of Susan during the surgery.
       {¶ 22} In affirming the holding of the Tenth District Court of Appeals, the
Supreme Court of Ohio agreed that “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.” Theobald, supra, at ¶23. The Court of
Appeals had explained that “any time a clinical faculty member furthers a student or
resident’s education, he promotes the state’s interest. Because the state’s interest is
promoted no matter how the education of the student or resident occurs, a practitioner
is acting within the scope of his employment if he educates a student or resident by
direct instruction, demonstration, supervision, or simple involvement of the student or
resident in the patient’s care.” Theobald v. Univ. of Cincinnati, 160 Ohio App.3d 342,
2005-Ohio-1510, ¶47.
        {¶ 23} Based upon the stipulated facts and the totality of the evidence presented,
the court concludes that Dr. Simon’s duties as a state-employed professor of surgery
included treating patients at CCH, and that he was engaged in those duties at the time
of the alleged negligence. This court has previously determined that the holding in
Theobald does not restrict physician immunity to situations where a resident or student
was physically present or assisting in the care of a patient. See Clevenger v. Univ. of
Cincinnati Coll. of Med., Ct. of Cl. No. 2008-10323, 2009-Ohio-2829. It is clear that the
surgery that Dr. Simon performed with Dr. Ralston’s assistance and the post-operative
note that Dr. Ralston authored involved the education of Dr. Ralston. Therefore, the
court concludes that Dr. Simon was acting within the scope of his state employment
with defendant at the time that the alleged negligence occurred. The court notes that
although plaintiffs’ claims concern an alleged omission, that fact alone does not render
Dr. Simon’s conduct outside the scope of his state employment. See Bruni v. Tatsumi
(1976), 46 Ohio St.2d 127, 131.1
        {¶ 24} In sum, the court concludes that Dr. Simon 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.


        1
          “In order to establish medical malpractice, it must be shown by a preponderance of the evidence
that the injury complained of was caused by the doing of some particular thing or things that a physician
or surgeon of ordinary skill, care and diligence would not have done under like or similar conditions or
circumstances, or by the failure or omission to do some particular thing or things that such a physician or
surgeon would have done under like or similar conditions and circumstances, and that the injury
complained of was the direct result of such doing or failing to do some one or more of such particular
things.” Id. at paragraph 1 of the syllabus. (Emphasis added.)
                                             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




SUSAN CHAPPELEAR, etc., et al.

      Plaintiffs

      v.

THE OHIO STATE UNIVERSITY MEDICAL CENTER

      Defendant
      Case No. 2008-02703

Judge Clark B. Weaver Sr.

JUDGMENT ENTRY




      The court held an evidentiary hearing to determine civil immunity pursuant to
R.C. 9.86 and 2743.02(F). At the hearing, the parties presented oral arguments and
submitted a joint stipulation of facts and exhibits.    The court has considered the
evidence and, for the reasons set forth in the decision filed concurrently herewith, the
court finds that Sheldon Simon, M.D. is entitled to immunity pursuant to R.C. 9.86 and
2743.02(F) and that 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.




                                         _____________________________________
                                         CLARK B. WEAVER SR.
                                     Judge

cc:


Anne B. Strait                         Gerald S. Leeseberg
Daniel R. Forsythe                     Susie L. Hahn
Karl W. Schedler                       175 South Third Street
Assistant Attorneys General            Penthouse One
150 East Gay Street, 18th Floor        Columbus, Ohio 43215-5134
Columbus, Ohio 43215-3130



Jennifer L. Hill
Mark L. Schumacher
Capitol Square Office Building
65 East State Street, Suite 800
Columbus, Ohio 43215-4247

Anne B. Strait                         Gerald S. Leeseberg
Daniel R. Forsythe                     Susie L. Hahn
Karl W. Schedler                       175 South Third Street
Assistant Attorneys General            Penthouse One
150 East Gay Street, 18th Floor        Columbus, Ohio 43215-5134
Columbus, Ohio 43215-3130



Jennifer L. Hill
Mark L. Schumacher
Capitol Square Office Building
65 East State Street, Suite 800
Columbus, Ohio 43215-4247

HTS/cmd
Filed December 14, 2009
To S.C. reporter December 29, 2009
