[Cite as Wagner v. Ohio State Univ. Med. Ctr., 2012-Ohio-3853.]




                                                        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



JOHN T. WAGNER, et al.

       Plaintiffs

       v.

THE OHIO STATE UNIVERSITY MEDICAL CENTER, et al.

       Defendants

Case No. 2005-05124

Judge Peggy L. Bryant
Judge Lisa L. Sadler
Judge Alan C. Travis

DECISION

        {¶ 1} Plaintiffs, John T. Wagner (Wagner), and his wife, Marilyn Wagner, brought
this action against defendants1 alleging negligence and loss of consortium. The case
was bifurcated as to the issues of liability and damages and the case proceeded to trial
before a panel of three judges.2
        {¶ 2} Gregory T. Schulte graduated from The Ohio State University with his M.D.
in 1991 and completed his anesthesiology residency at The Ohio State University
College of Medicine. Prior to the events that led to this action, Dr. Schulte was a
member of the American Society of Anesthesiologists, the American Board of Pain


        1
        Defendant, The Ohio State University Medical Center, shall be referred to as “OSU.”
        2
        On October 18, 2011, the court granted plaintiffs’ motion to hold the record open for a
reasonable time, to be determined at trial, for plaintiffs to secure the trial testimony of witness Cindy
Workman, R.N., by deposition, and to file a transcript of such testimony with the court. No such testimony
has been offered and, accordingly, the case is deemed submitted for a decision on the merits.
Medicine, and the Ohio State Anesthesia Association. When he was hired by OSU, Dr.
Schulte was board-certified in anesthesiology and interventional pain medicine, and he
was licensed to practice medicine in Ohio.
       {¶ 3} On September 21, 2001, Dr. Schulte and the State Medical Board of Ohio
(board) entered into a Step I Consent Agreement, regarding Dr. Schulte’s substance
abuse.     Dr. Schulte was addicted to alcohol and the non-prescription drug Ultram.
Several months thereafter, the board and Dr. Schulte entered into a Step II Consent
Agreement followed by an Addendum to the Step II Consent Agreement dated February
13, 2002.
       {¶ 4} On March 26, 2002, the Ohio State University College of Medicine and
Public Health offered Dr. Schulte a position as a Clinical Assistant Professor of
Medicine in the Department of Anesthesiology. OSU, on behalf of its Health Systems
Department of Anesthesiology (Health Systems) subsequently entered into a Physician
Employment Agreement with Dr. Schulte effective June 1, 2002.                     The agreement
required Dr. Schulte to obtain clinical privileges at The Ohio State University Hospitals
(OSU Hospital). After several months of satisfactory service in surgery, Dr. Schulte was
permitted to practice in the Chronic Pain Center, known commonly as the pain clinic,
which operated under the umbrella of the Department of Anesthesiology.3
       {¶ 5} In the spring of 2004, Dr. Schulte began to exhibit signs that he was under
the influence of drugs while working in the pain clinic. Under the terms of the consent
agreement with the board, Dr. Schulte was required to undergo periodic urinalysis and
in May 2004, one such screening revealed that he had taken the drug methadone. In
June 2004, pain clinic nurse Annabelle Marshal voiced her suspicions that Dr. Schulte
had stolen unused Fentanyl patches that were supposed to be discarded. Pain clinic
nurse manager, Jill Niese, reported in July that she suspected Dr. Schulte had taken a
syringe containing the narcotic Dilaudid from a tray in the clinic. On August 12, 2004,
Dr. Steven Severyn, Clinical Assistant Professor in the Department of Anesthesiology,
was asked to care for one of Dr. Schulte’s patients in the pain clinic because Dr. Schulte
appeared to be impaired. Dr. Severyn assumed Dr. Schulte’s impairment was due


       3
         In February 2003, eight months into Dr. Schulte’s initial contract term, OSU and Dr. Schulte
entered into a new Physician Employment Agreement whereby OSU elevated Dr. Schulte’s status from
either to Dr. Schulte’s misuse of prescribed medication or to an adverse reaction to
such medication. Dr. Severyn knew that Dr. Schulte had a serious knee injury and that
he suffered from chronic back pain. Dr. Severyn sent Dr. Schulte home that day. He
did the same thing on at least one other occasion in September 2004, when Dr. Schulte
exhibited slurred speech while at work.
        {¶ 6} On September 7, 2004, pain clinic nurses observed Dr. Schulte fall face first
into a plate of spaghetti while at work. Dr. Schulte later explained to Dr. Severyn that
his conduct on September 7, 2004, was caused by an adverse reaction to the
prescribed drug Neurontin.
        {¶ 7} In a September 20, 2004 letter, Dr. Severyn informed Dr. Michael Howie,
Chair of the Department of Anesthesiology at OSU, of what had occurred on September
7, 2004, as well as Dr. Schulte’s explanation. Dr. Howie became very angry when he
read the letter because Dr. Schulte had specifically told him that he was no longer
taking Neurontin.
        {¶ 8} Later in September, after Dr. Schulte had been ejected from a surgical
procedure due to his strange behavior, Dr. Howie personally supervised Dr. Schulte’s
drug screening due to suspicions that Dr. Schulte was using urine from other sources.
The testimony shows that by mid to late September 2004, Dr. Howie had reached the
limits of his tolerance with Dr. Schulte, and he decided that Dr. Schulte “was finished at
the pain clinic.”
        {¶ 9} Dr. Howie subsequently placed Dr. Schulte on administrative leave,
effective September 21, 2004, and forbade him from providing patient care of any sort.
The board was subsequently notified of Dr. Schulte’s conduct and OSU’s actions. Dr.
Schulte retained his faculty appointment and a salary of $30,000, but his continued
employment was placed “under review.”                  According to Dr. Hagop Mekhjian, Chief
Medical Officer for Health Systems, Dr. Schulte had no assigned faculty duties effective
September 21, 2004. However, during the pendency of the review proceedings, Dr.
Schulte was permitted to keep his pager, and both his faculty ID badge and computer
password, which gave him access to OSU facilities, equipment, and computers. Dr.
Schulte also retained the OSU scrubs that he had purchased with his own funds.


part-time to full-time (100 percent), thereby increasing his clinical assistant professorship to 50 percent,
       {¶ 10} On November 12, 2004, the board suspended Dr. Schulte’s license for an
indefinite period of not less than one year. As a result of the board’s actions, OSU
terminated Dr. Schulte’s employment with Health Systems effective December 1, 2004,
and revoked his staff privileges.
       {¶ 11} On January 3, 2005, OSU became aware that, in December 2004, Dr.
Schulte had siphoned morphine from the pain pump of his own critically ill father, Tom
Schulte, who was also a pain clinic patient.        On January 4, 2005, Drs. Howie and
Severyn met with OSU legal counsel regarding Dr. Schulte’s conduct. As a result of the
meeting, it was decided that OSU would contact the Ohio Department of Job and Family
Services (ODJFS) in order to report an incident of elder abuse. The idea of providing
notifications or warnings to other pain pump patients such as Wagner was not
discussed during the meeting.           On January 6, 2005, the incident was reported to
ODJFS.
       {¶ 12} On January 12, 2005, Dr. Schulte, while dressed in his OSU scrubs with
his OSU faculty badge, using his customary bag of equipment, and representing that he
was performing research on behalf of OSU, gained access to Wagner’s home and
siphoned morphine from his implanted pump. Six days later, Dr. Schulte went to the
home of OSU patient Jesse Persinger and siphoned morphine from his pain pump.
       {¶ 13} On January 18, 2005, Wagner’s home nurse, C.R.N.I. Barbara Mortimer,
was sent to his home after her office had received a call regarding his condition.
Mortimer was not scheduled to visit Wagner until January 24, 2005, but when she
arrived at Wagner’s home, he was sweating and complaining of excruciating pain.
When she checked his pain pump and withdrew an orange colored fluid, she suspected
something was wrong and called the pain clinic.
       {¶ 14} On January 21, 2005, OSU learned that Dr. Schulte had victimized
Persinger, and on January 27, 2005, Dr. Severyn sent a letter regarding Dr. Schulte to
63 current pain clinic patients who were receiving medication via pain pumps. The letter
was issued on Ohio State Pain Control Center letterhead and it reads in relevant part as
follows:




and his physician appointment to 50 percent.
       {¶ 15} “Dear Patient,
       {¶ 16} “The purpose of this letter is to inform you that Todd G. Schulte, M.D., (sic)
who was previously your pain management physician, is no longer on the staff of The
Ohio State Pain Control Clinic and he is no longer involved with your care.           If Dr.
Schulte contacts you, please let us know immediately by calling us at (614) 293-1070.
       {¶ 17} “It is very important that no one other than your current physician from The
Ohio State Pain Control Clinic or your usual home health care nurse performs any
procedures involving your pain pump. If Dr. Schulte asks to see you or examine your
pump, you should refuse and call us immediately.”
       {¶ 18} Wagner was hospitalized for complications arising from Dr. Schulte’s crime
and he remained hospitalized until February 7, 2005. Dr. Schulte was brought into
custody and there are no other known victims. Dr. Schulte ultimately pled guilty to
criminal charges from his conduct as described above, and he was sentenced to a term
of imprisonment.
       {¶ 19} On April 5, 2005, plaintiffs brought an action against OSU sounding in
negligence. The case was stayed during the pendency of the case plaintiffs filed against
Dr. Schulte in the Franklin County Court of Common Pleas. On July 17, 2008, the stay
was lifted and on September 28, 2009, this court granted OSU’s motion for summary
judgment. Plaintiffs filed a notice of appeal to the Tenth District Court of Appeals and
on June 8, 2010, the Court of Appeals reversed the decision of this court and remanded
the case for further proceedings. See Wagner v. Ohio State Univ. Med. Ctr.,188 Ohio
App.3d 65, 2010-Ohio-2561.
       {¶ 20} The opinion of the court of appeals, which now represents the law of this
case, provides in relevant part:
       {¶ 21} “[I]n a negligence action for the injury to Wagner, Wagner must establish
that genuine issues of material facts exist as to whether OSU owed him a duty, that
OSU breached that duty, and that the breach was a proximate cause of the injury.
Albright v. Univ. of Toledo (Sept. 18, 2001), 10th Dist. No. 01AP-130; Mussivand v.
David (1989), 45 Ohio St.3d 314, 318. The existence of a duty in a negligence action is
a question of law for the court to determine. Id. Whether a defendant owes a plaintiff a
duty in a negligence case is a fundamental aspect of establishing actionable
negligence, and if there is no duty or obligation of care, no legal liability may arise for
the negligent act. Albright, quoting Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142.
       {¶ 22} “* * * Construing these facts in the light most favorable to Wagner, we find
that a genuine issue of material fact exists as to whether Schulte’s actions were a
reasonably foreseeable consequence of OSU’s decision to retain Schulte in a
faculty/researcher position at OSU. OSU, knowing of Schulte’s misconduct towards his
father, should have reasonably foreseen the likelihood that its employee might engage
in such actions with another well-known patient who had developed a father-son type of
relationship with Schulte.    The existence of a special relationship as explained in
Abrams coupled with the foreseeability of the injury, and the decision to avoid informing
Wagner as to Schulte’s whereabouts in a drug program, creates a genuine issue of
material fact as to whether OSU had a duty to protect Wagner from such harm.” Id. at
¶22, 36.
       {¶ 23} Plaintiff John Wagner testified that he was born in 1942. Wagner was a
printer by trade but he retired in 1991 from a career in labor relations.         He was
diagnosed with acute pancreatitis in 1990 and the condition is now chronic. Wagner
met Dr. Schulte at the OSU pain clinic in 1990 and the two men became friends.
Eventually, Wagner grew to think of Dr. Schulte as a son.
       {¶ 24} In January 2000, Dr. Schulte, by then a licensed anesthesiologist,
surgically implanted a morphine pump into Wagner. The pump relieved Wagner’s pain,
and dramatically improved his quality of life. Wagner testified that Dr. Schulte “delivered
him from Hades.” Wagner now receives morphine continuously via the pain pump and
he also takes Percocet for additional pain relief.
       {¶ 25} Wagner also related that he was the first patient ever to receive
subcutaneous infusions of pain medication via pain pump and that Dr. Schulte was the
first physician to ever provide such treatment. Wagner testified that he employed what
he referred to as “mind control techniques” in order to control his pain prior to receiving
treatment from Dr. Schulte. He stated that he had also used short wave radio programs
in aid of his mind control techniques and that he taught such techniques to patients at
Mount Carmel hospital in the 1980s and 1990s. According to Wagner, Dr. Schulte had
referred other chronic pain patients to him for such treatments.
       {¶ 26} In or about July 2004, Dr. Schulte asked Wagner to attend a meeting with
Dr. Schulte and Dr. Howie. According to Wagner, Dr. Schulte told him he was having a
problem with another physician who was jealous of his work and that the dispute was
affecting Dr. Schulte’s ability to acquire malpractice insurance. Wagner testified that he
was at the meeting to personally attest to Dr. Schulte’s competency as a physician.
Wagner remembered that Dr. Schulte appeared very sleepy at that meeting. Wagner
testified that he had no idea, at that time, that Dr. Schulte was a drug impaired physician
practicing under a consent agreement and that Dr. Howie did not mention this fact to
him at the meeting.
       {¶ 27} Wagner testified that the meeting with Dr. Howie was the only time he saw
or spoke with Dr. Schulte in the fall of 2004 and that it was his last contact with Dr.
Schulte prior to the day of the incident at his home. On that day, January 12, 2005,
Wagner received a telephone call from Dr. Schulte, at which time Dr. Schulte told him
he was ready to begin his “substance P” research and he asked Wagner if he would
agree to participate. Dr. Schulte also asked Wagner if he had heard any rumors about
him. Wagner responded that he had not. Dr. Schulte arrived at Wagner’s home about
one hour later carrying his brown briefcase with the “same computer setup used by the
nurses,” and wearing green scrubs with his OSU faculty ID badge. Wagner observed
that Dr. Schulte was “hunched over at the waist,” and when he inquired, Dr. Schulte told
him he was scheduled for back surgery. According to Wagner, Dr. Schulte told him that
he needed to obtain a sample of Wagner’s spinal fluid for his research. Dr. Schulte
inserted a syringe through Wagner’s skin and into the morphine reservoir of his pump to
remove morphine for his own use.
       {¶ 28} Wagner remembered that Dr. Schulte came to his home again on January
14, 2005, at which time Dr. Schulte, once again, asked Wagner if he had heard any
rumors about him. Wagner told Dr. Schulte that he did not pay attention to such things.
He also asked if Wagner would trade his Percocet for some other pain pills Dr. Schulte
had brought with him. Wagner made the trade and then asked Dr. Schulte to leave;
Wagner never took the pills Dr. Schulte had given him.
      {¶ 29} Plaintiffs argue that OSU is liable to them for the harm inflicted by Dr.
Schulte inasmuch as OSU negligently “retained” Dr. Schulte in his faculty position after
having knowledge that Dr. Schulte was once again taking illegal drugs, that his hospital
privileges had been revoked due to his drug use, and that his medical license had been
revoked for drug related violations of his consent agreement. Plaintiffs further allege
that OSU cloaked Dr. Schulte with apparent authority to act on its behalf by “allowing
him computer access, access to equipment, and allowing him to keep his ID card and
pager * * *, [all of] which allowed Schulte to access Wagner’s pain pump under the
guise of doing research * * *.” Wagner, supra, ¶30.
      {¶ 30} OSU admits that Dr. Schulte was retained as a faculty member so that he
could keep his health insurance and a small salary, but that he was given no duties. No
meaningful explanation was given for the decision to allow Dr. Schulte to retain his ID
badge and computer; the scrubs were Dr. Schulte’s personal property.          OSU also
denies that Dr. Schulte was ever given authority to conduct “substance P” research at or
about the time he committed his crimes.
      {¶ 31} In Wagner, the court of appeals stated: “This court clarified the issue of
duty in a negligent retention case in Abrams v. Worthington, 169 Ohio App.3d 94, 2006-
Ohio-5516. The existence of a duty will depend on the foreseeability of the injury to the
plaintiff. Id. at ¶15. The test for foreseeability is whether a reasonably prudent person
would have anticipated that an injury was likely to result from the performance or
nonperformance of an act. Id. ‘The foreseeability of a criminal act depends upon the
knowledge of the defendant, which must be determined by the totality of the
circumstances, and it is only when the totality of the circumstances are “somewhat
overwhelming” that the defendant will be held liable.’ Staten v. Ohio Exterminating Co.,
Inc. (1997), 123 Ohio App.3d 526, 530, quoting Evans v. Ohio State Univ. (1996), 112
Ohio App.3d 724, 742, citing Feichtner v. Cleveland (1994), 95 Ohio App.3d 388, 396.”
Wagner, supra, ¶23.
      {¶ 32} The circumstances that existed on or about November 12, 2004, when
OSU elected to retain Dr. Schulte in his position as a faculty member would not have
caused a reasonable person in Dr. Howie’s or Dr. Severyn’s position to anticipate the
harm Dr. Schulte would subsequently inflict upon Wagner in his home.           Both Dr.
Severyn and Dr. Howie knew that Dr. Schulte had no duties as a faculty member. Dr.
Howie testified that in order for OSU to formally terminate Dr. Schulte’s faculty
appointment he would need to initiate what he referred to as a “bureaucratic process,”
by requesting such action from Assistant Dean of Academic Affairs, Dr. Bornstein. Dr.
Howie did not believe that such action was necessary for the protection of OSU patients
inasmuch as Dr. Schulte had been placed on administrative leave and, consequently,
he had no access to patients at the pain clinic. In other words, Dr. Howie did not
believe that retaining Dr. Schulte in his faculty position had any bearing upon patient
care. Thus, Dr. Howie felt no compulsion to expedite the process.
      {¶ 33} Moreover, given the established process by which pain clinic patients
received their medications, neither Dr. Howie nor Dr. Severyn could have reasonably
foreseen that Dr. Schulte would have any contact with pain clinic patients subsequent to
the actions taken by OSU regarding his clinical privileges.
      {¶ 34} The process by which OSU pain clinic patients receive subcutaneous pain
medication via electronic pumps, the manner in which the pumps are used by the
patients in their homes, and the method by which patients receive pain medication for
use in the pumps, was explained to the court by a number of witnesses. In 2005, Jill
Niese was Nurse Manager of the OSU Chronic Pain Center, which is now known as the
Spine Center. According to Niese, pain clinic patients are seen by the nurses and
physicians employed at the clinic when the patients arrive at the clinic for their periodic
appointments; OSU pain clinic nurses and physicians do not visit patients in their
homes. This is true for the in-home pain pump patients as well. Such patients arrive at
the clinic for periodic visits where they are seen by a pain clinic physician and
prescribed pain medication. According to Niese, in 2005, those prescriptions were filled
by a company known as SBH and they were then taken to the patient’s home and
delivered to the patient’s pain pump by nurses employed at Three Rivers Option Care
(Option Care). Niese testified that in or about January 2005 she was able to identify
and obtain accurate contact information for a total of 63 OSU-affiliated pain clinic
patients who had been fitted either with internal or external pain pumps and who were
using those pumps while they were in their homes. Mortimer worked for Option Care in
2005 and her duties included visiting the homes of OSU Pain Clinic patients to check
and refill their internal SyncroMed pumps. She testified that Wagner was her patient for
approximately two years and that she saw him every 60 days for his refill.
      {¶ 35} It is clear that pain clinic nurses and physicians did not see patients in their
homes.    Even though Dr. Howie admitted knowledge that Dr. Schulte was abusing
drugs in late 2004, and that he had attempted to illegally obtain drugs while working at
the pain clinic, he maintained that Dr. Schulte’s temporary retention as a faculty
member had nothing to do with the events that transpired in Wagner’s home on January
12, 2005. The court agrees.
      {¶ 36} In short, the court does not believe that there was any reason for anyone
associated with OSU to suspect that Dr. Schulte posed a risk of harm to OSU patients
using pain pumps in their homes. Thus, OSU did not breach a duty owed to Wagner
when it retained Dr. Schulte as a faculty member.
      {¶ 37} With respect to the question of whether OSU should be held liable to
plaintiffs under the theory of apparent authority, the court of appeals in Wagner stated:
      {¶ 38} “Ohio recognizes claims based on apparent authority. * * * In Kerans [v.
Porter Paint Co. (1991), 61 Ohio St.3d 486], the Ohio Supreme Court held that an
employee who sexually harasses another employee over whom he has supervisory
duties may be found to have been acting with apparent authority, and, therefore, may
be found to have been acting within the scope of employment. The court further stated
that even if the supervisor’s activities were outside the scope of his employment,
summary judgment would not be proper based on a Restatement section that imposes
liability on employers if they are aware that an employee represents an unreasonable
risk of bodily harm to others. 2 Restatement (Second) of Law, (1965), Torts, 125,
Section 317.” Wagner, supra, ¶40.
      {¶ 39} Written stipulations filed by the parties establish that while Dr. Schulte is
identified as a “co-investigator” on two proposed research projects, Dr. Schulte was
never authorized to conduct research on either of the projects and neither of these
projects ever proceeded to human trials.       Hence, he was outside the scope of his
employment.    Moreover, the evidence establishes that the only person with whom
Wagner ever discussed “substance P” research was Dr. Schulte himself. Dr. Schulte
never told anyone at OSU that he spoke with Wagner about such research and no other
OSU representative spoke of such research with Wagner. Although Dr. Schulte sought
approval from Dr. Howie in December 2004, to become involved in research, the court
is convinced that Dr. Howie never seriously considered the request. The evidence thus
does not support Wagner’s contention that OSU was aware Dr. Schulte may be
attempting to conduct research.
       {¶ 40} Based upon the weight of the evidence, plaintiffs have failed to establish
either that OSU cloaked Dr. Schulte with apparent authority to conduct research in the
homes of pain clinic patients or that OSU knew Dr. Schulte was speaking with patients
about substance P research.4
       {¶ 41} Plaintiffs also contend that OSU had a duty to warn them about Dr. Schulte
when Wagner arrived at the pain clinic for a scheduled appointment on November 15,
2004. On that day, Wagner was seen at the OSU Pain Clinic by physician Dr. Rebecca
Guttman and, according to Wagner, when he asked Dr. Guttman where Dr. Schulte
was, she told him “I don’t know where he is, I’m here to take his place. What do you
need?” Wagner claims that OSU was obligated to inform him that Dr. Schulte had been
placed on administrative leave due to his drug use and that OSU’s failure to so inform
him was the proximate cause of his subsequent injury at Dr. Schulte’s hands.
       {¶ 42} The court of appeals in Wagner discussed the case law underlying such
an argument as follows:
       {¶ 43} “In addition, after OSU had removed Schulte from his clinical duties due to
drug abuse, OSU was evasive when Wagner inquired as to Schulte’s whereabouts even
though Schulte had been removed from his clinical duties and referred to the Cleveland
Clinic for in-patient evaluation.      In Douglass v. Salem Community Hosp., 153 Ohio
App.3d 350, 2003-Ohio-4006, ¶69, the court held that a special relationship arose once
a person inquires about a former employee and the hospital responds.                       Douglass
involved a former employee who resigned because of a past history of child
molestation. The inquiry was whether a mother’s child should accompany his cousin for


       4
          The court of appeals in Wagner acknowledged that a cause of action based upon the rule of law
articulated in Section 219(2)(d) of Restatement (Second) of the Law, 1958, Agency, has not been
recognized in Ohio. Wagner, supra, ¶39. Thus, OSU cannot be subjected to liability to plaintiffs simply
because Dr. Schulte “‘purported to act or to speak on behalf of [OSU] and there was reliance upon
apparent authority, or [Dr. Schulte] was aided in accomplishing the tort by the existence of the agency
relationship.’” Id., quoting Restatement of the Law 2d, Agency (1958), Section 219 (2)(d).
a weekend stay at the former employee’s home. The mother was not told about its
suspicions about the former employee or even that the employee was no longer
employed. The court stated, ‘While the hospital may not have had an affirmative duty to
disclose to all former patients or clients that were involved with [the former employee]
about his past history, when inquiry was made and it was asked for advice concerning
him, it was bound to offer that advice in a non-negligent manner.’” Id. at 368. Wagner,
supra, ¶34.
        {¶ 44} The facts of this case are markedly different from those discussed by the
court in
        {¶ 45} Douglass. First, Wagner’s own testimony shows that he did not leave the
pain clinic on November 15, 2004, with a positive view of Dr. Schulte’s employment
status. By his own admission, he became confused about Dr. Schulte’s employment
and frustrated. More importantly, as noted above, the facts and circumstances that
existed at that time would not have alerted a reasonable employer in OSU’s position
that Dr. Schulte posed a risk of harm to Wagner while he was in his own home.
        {¶ 46} There was no reason for OSU to anticipate that Dr. Schulte would ever
contact Wagner or any of his other patients outside of the pain clinic. And, at that point
in time, OSU had no knowledge, either actual or constructive, that Dr. Schulte had ever
attempted to steal drugs from any patient.
        {¶ 47} In short, OSU was not legally obligated to notify Wagner of Dr. Schulte’s
status. Unlike the Douglass case, there is no statute that requires such notice be given
by OSU under these circumstances.5

        5
          The court notes H.B. No. 417, which was introduced in the 129th General Assembly, calls for the
enactment of R.C. 4731.228, which shall provide, in part:
         “(C)(1) Except as provided in division (C)(2) of this section, a health care entity shall send notice
of the termination of a physician’s employment to each patient who received physician services from the
physician in the two-year period immediately preceding the date of employment termination. Only
patients of the health care entity who received services from the physician are to receive the notice.
         “(2) If the health care entity provides to the physician a list of patients treated and patient contact
information, the health care entity may require the physician to send the notice required by this section.
         “(D) The notice provided under division (C) of this section shall be provided not later than five
days after termination of the physician’s employment with the health care entity and in accordance with
rules adopted by the state medical board under section 4731.05 of the Revised Code. The notice shall
include at least all of the following:
         “(1) A notice to the patient that the physician will no longer be practicing medicine as an
employee of the health care entity;
         “(2) The physician’s name and any information provided by the physician that the patient may
use to contact the physician;
       {¶ 48} Plaintiffs also argue that when OSU became aware that Dr. Schulte had
illegally siphoned drugs from his own father’s intravenous line, it was reasonably
foreseeable that he would do the same to other patients, and that a warning should
have been given. In addressing this issue, the court of appeals stated: “In this case,
the key inquiry is whether OSU owed a duty to protect Wagner and Schulte’s other
patients with pain pumps whether they were at OSU or in their homes. Wagner asserts
that a letter warning Schulte’s former pain pump patients would have protected him from
the tortious and criminal acts of Schulte.” Wagner, supra, ¶27.
       {¶ 49} There is no disagreement in this case that a letter warning Wagner of the
risk of harm posed by Dr. Schulte may have prevented Wagner’s injury. There is also
no dispute that the letter sent to each of the 63 pain pump patients on January 27,
2005, would have been sufficient. Wagner testified that if he had received such a letter
from OSU prior to the time he was contacted by Dr. Schulte in January 2005, he never
would have let Dr. Schulte into his home on January 12, 2005.
       {¶ 50} The parties disagree, however, as to the point in time when the duty to
warn arose given the chronology of events leading to Dr. Schulte’s crime against
Wagner. Plaintiffs argue that a duty arose, at the latest, on January 3, 2005, when OSU
received word that Dr. Schulte may have stolen morphine from his father, pain clinic
patient, Tom Schulte. OSU argues that the duty arose, at the earliest, on January 21,
2005, when OSU learned that Dr. Schulte had victimized Persinger.
       {¶ 51} On January 3, 2005, OSU learned that Dr. Schulte had very likely
siphoned morphine from his father’s pain pump.             As of that date, Dr. Schulte had
already lost his license to practice medicine, he was terminated from his position at the
pain clinic, and had lost his privileges at OSU Hospital. When the court considers the
facts and circumstances that Drs. Howie and Severyn either knew or should have
known as of January 4, 2005, the court does not believe that Dr. Schulte’s subsequent
crime against Wagner was reasonably foreseeable.



        “(3) The date on which the physician ceased or will cease to practice as an employee of the
health care entity;
        “(4) Contact information for an alternative physician employed by the health care entity.”
(Emphasis added.)
      {¶ 52} The evidence establishes that notice of Dr. Schulte’s crime upon Tom
Schulte first came to light on January 3, 2005, when Dr. Severyn contacted Cindy
Workman R.N., a nurse employed by SBH, and spoke with her regarding her December
30, 2004 visit with Tom Schulte at his home.            Dr. Severyn memorialized the
conversation in a “memo for record” dated January 3, 2005, and admitted into evidence
as Plaintiffs’ Stipulated Exhibit 10. What the memo memorializes is a systematic effort
by Dr. Schulte, beginning as early as March 2004, to surreptitiously obtain small
amounts of the narcotic Dilaudid from his father’s pain pump. During her December 30,
2004 visit, however, Workman noticed “three recent puncture marks in the skin
overlying the pump access port,” and when she accessed the pump reservoir, she
found it to be completely empty. When Workman asked Tom Schulte who had done
this, he began to cry and then told her it was his son. In her conversation with Dr.
Severyn, Workman told him that Dr. Schulte possessed a pump programmer that he
had obtained from a former employer.
      {¶ 53} As Chair of OSU’s Department of Anesthesia, Dr. Howie was responsible
for both the Clinical and Academic affairs at OSU. As the direct supervisor of Dr.
Severyn, Dr. Howie was ultimately responsible for Dr. Schulte. The evidence shows
that Dr. Schulte’s mother had passed away in July 2004 and that Dr. Schulte had
moved in with his ailing father to assume the responsibility for his care. Tom Schulte
was suffering from both dementia and terminal cancer.
      {¶ 54} Dr. Howie testified that he never imagined that Dr. Schulte would do such
a thing to his father. Dr. Severyn confirmed Dr. Howie’s shock and amazement when
he was told about the incident with Tom Schulte.        Dr. Howie also stated that he
considered Dr. Schulte’s crimes against Wagner and Persinger to be “worse” than what
Dr. Schulte did to his father because neither Wagner nor Persinger were family
members.
      {¶ 55} Dr. Severyn testified that when he learned that morphine had been taken
from Tom Schulte and informed Dr. Howie of this fact on January 4, 2005, both he and
Dr. Howie surmised that it was Dr. Schulte who was responsible. Dr. Severyn stated
that when he and Dr. Howie met with legal counsel on January 4, 2005, the thought of
notifying pain clinic staff or patients about the incident did not occur to him and that the
issue was not discussed.
       {¶ 56} When Dr. Severyn was asked if some type of notification or warning could
have been published at that time, he stated that it would not have been easy to quickly
identify the pain clinic patients who were receiving medications via pain pumps
inasmuch as the relevant information would need to be obtained from the records of the
pharmaceutical provider, SBH, before a list of recipients could be drawn up. He did not
believe any such notification could have been given on or before January 6, 2005. And,
although Dr. Severyn’s January 27, 2005 letter was ultimately sent to 63 patients, Dr.
Severyn suspected that there could have been as many as 150 pain pump patients
affiliated with the clinic at that time but that the records for all such patients were not
readily available to OSU.
       {¶ 57} Dr. Severyn testified that, in consideration of the facts known to him on or
about January 4, 2005, he did not believe that a warning letter would have been
appropriate given the fact that OSU’s suspicions about Dr. Schulte’s conduct had not
been either independently confirmed or investigated by the proper authorities.           He
believed that notifying ODJFS and making a report of elder abuse was the proper
course of conduct under the circumstances.
       {¶ 58} The court finds that Drs. Howie and Severyn were credible witnesses.
Based upon their testimony, the court finds that the risk that Dr. Schulte would harm any
other pain clinic patients in their homes never occurred to them on January 4, 2005. Dr.
Severyn and Dr. Howie knew that OSU pain clinic physicians did not see pain pump
patients in their homes and they knew that the patients understood this. The court is
convinced that the first time either witness appreciated a risk of harm to other pain
pump patients was when they learned of Dr. Schulte’s crime against Persinger. The
question for the court to answer in determining whether OSU had a legal duty to take
action to protect Wagner from harm at Dr. Schulte’s hands is whether a reasonably
prudent individual standing in the shoes of Dr. Severyn and Dr. Howie would have
foreseen Dr. Schulte’s subsequent criminal conduct given the facts and circumstances
known to them on or about January 4, 2005. In making this determination, the court is
aware that such facts and circumstances must be “somewhat overwhelming” before a
duty may be imposed. See Wagner, supra, ¶23.
       {¶ 59} A review of the testimony shows that other persons who became
associated with the case were just as shocked by Dr. Schulte’s conduct as OSU. When
speaking of the crime against Wagner, Officer Stephanie Russell of the Fairfield County
Sheriff’s Department testified that it was a “striking case” and that she had never
investigated anything like it before. Wagner’s own daughter, Julie Feasel, referred to
the incident as a “Crazy, made for T.V. movie.”
       {¶ 60} “There is no formula for ascertaining whether a duty exists. Duty is the
court's expression of the sum total of those considerations of policy which lead the law
to say that the particular plaintiff is entitled to protection. Any number of considerations
may justify the imposition of duty in particular circumstances, including the guidance of
history, continually refined concepts of morals and justice, the convenience of the rule,
and social judgment as to where the loss should fall.” Mussivand v. David (1989), 45
Ohio St.3d 314, 318. (Internal citations omitted.)
       {¶ 61} In this instance, OSU knew that Dr. Schulte was either living in the home
of his critically ill father or was with him on a regular basis, that Dr. Schulte had
assumed the role of caregiver after his mother’s death, and that Tom Schulte was
evidencing signs of dementia.       Although both Dr. Severyn and Dr. Howie were
personally shocked to hear that Dr. Schulte had victimized his father in this fashion,
reports of drug addicted children stealing prescription drugs from their parents is a
known form of elder abuse.
       {¶ 62} In considering whether Dr. Howie or Dr. Severyn should have anticipated
Dr. Schulte’s crime, the court must consider the absence of any evidence that pain
pump patients had ever been the subject of invasive clinical research in their homes.
Even though Wagner testified that he knew something about “substance P” research
from speaking with Dr. Schulte, there is no evidence that OSU knew that Dr. Schulte
had discussed such research with any of his patients. As noted above, what evidence
there is of this research establishes that OSU never authorized Dr. Schulte to conduct
research on pain pump patients. OSU learned that Dr. Schulte used the substance P
research as a reason to enter patients’ homes only after Dr. Severyn met with Persinger
on January 21, 2005. It was at that time that Dr. Severyn decided to issue a warning
letter to pain pump patients.
       {¶ 63} Plaintiffs, however, assert that Wagner’s presence at a July 2004 meeting
regarding Dr. Schulte’s medical malpractice coverage evidences the existence of a
relationship between OSU and Wagner of such a nature that OSU assumed a duty to
warn Wagner of the risk posed by Dr. Schulte in January 2005. According to Wagner,
in July 2004, Dr. Schulte asked Wagner to accompany him to a meeting with Dr. Howie
for the ostensible purpose of discussing Dr. Schulte’s difficulties in obtaining malpractice
insurance. According to Wagner, Dr. Schulte “seemed very tired,” and he appeared “to
be very sleepy” during the meeting. Wagner testified that he did not suspect Dr. Schulte
of drug abuse at that time. This was the first and only time Dr. Howie met Wagner.
       {¶ 64} There is no question that the physician-patient relationship between the
two was a longstanding one and that OSU knew this to be true. However, accepting
Wagner’s perspective that he and Dr. Schulte had a father and son type of relationship,
there was little to no evidence in this case to support a finding that OSU knew that such
an intimate relationship existed and that the relationship was much closer than the
physician-patient relationship OSU physicians had with their other pain clinic patients.
       {¶ 65} Wagner testified that in the course of his relationship with Dr. Schulte, Dr.
Schulte always contacted him and that he never contacted Dr. Schulte.              He also
acknowledged that the last time he saw or spoke with Dr. Schulte prior to January 12,
2005, was at the July meeting with Dr. Howie. According to Wagner, that meeting was
the only contact he had with Dr. Schulte in 2004, outside of his scheduled appointments
at the pain clinic. Although Wagner specifically asked about Dr. Schulte’s whereabouts
during his scheduled appointment in November 2004, the court does not find such an
inquiry to reveal an intimate father and son relationship. Nurse Niese testified that
Wagner once told her that he trusted Dr. Schulte like a son, but that was on January 27,
2005, after the crime had been committed.
       {¶ 66} In the opinion of the court, Wagner’s presence at the meeting in July
evidenced only that Wagner had a long standing physician-patient relationship with Dr.
Schulte and that he believed Dr. Schulte was a fine physician. Such evidence does not
permit an inference that OSU had a special relationship with Wagner such that OSU
assumed a duty to protect Wagner, above all other patients, from a crime that occurred
more than six months later at Wagner’s personal residence.
       {¶ 67} In short, the facts and circumstances known to OSU prior to the time it
learned of Dr. Schulte’s crime upon Persinger, would not have alerted a reasonable
employer/caregiver in OSU’s position that Dr. Schulte posed a foreseeable and
unreasonable risk of harm to Wagner while Wagner was in his own home. OSU had
taken reasonable steps, at that time, to protect its pain pump patients from the
foreseeable risks posed by Dr. Schulte when it terminated Dr. Schulte from his clinical
position and informed both the medical board and ODJFS of OSU’s suspicion that he
had committed a crime upon his elderly father. Thus, it is the conclusion of the court
that OSU did not breach a duty of care owed to plaintiffs and that plaintiffs have failed to
prove their claim by a preponderance of the evidence. Accordingly, judgment shall be
rendered in favor of defendants.
                                              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



JOHN T. WAGNER, et al.

      Plaintiffs

      v.

THE OHIO STATE UNIVERSITY MEDICAL CENTER, et al.

      Defendants

Case No. 2005-05124

Judge Peggy L. Bryant
Judge Lisa L. Sadler
Judge Alan C. Travis

JUDGMENT ENTRY

      {¶ 68} This case was tried to the court on the issue of liability. The court has
considered the evidence and, for the reasons set forth in the decision filed concurrently
herewith, judgment is rendered in favor of defendants.        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.

                                         _____________________________________
                                         PEGGY L. BRYANT
                                         Judge

                                         _____________________________________
                                         LISA L. SADLER
                                         Judge

                                         _____________________________________
                                         ALAN C. TRAVIS
                                         Judge
cc:


Karl W. Schedler                   Robert G. Palmer
Assistant Attorney General         140 East Town Street, Suite 1200
150 East Gay Street, 18th Floor    Columbus, Ohio 43215
Columbus, Ohio 43215-3130

006
Filed April 2, 2012
To S.C. reporter August 24, 2012
