[Cite as Engel v. Univ. of Toledo College of Medicine, 130 Ohio St.3d 263, 2011-Ohio-3375.]




             ENGEL, APPELLEE, v. UNIVERSITY OF TOLEDO COLLEGE
                              OF MEDICINE, APPELLANT.

               [Cite as Engel v. Univ. of Toledo College of Medicine,
                        130 Ohio St.3d 263, 2011-Ohio-3375.]
Sovereign immunity—R.C. 9.86—Immunity of state employees—Physicians—
        Physician who was volunteer clinical faculty member for state medical
        college was not entitled to immunity as state employee—Physician had no
        contractual relationship with state, practiced medicine in private practice
        only, college exercised no control over physician’s medical practice, and
        physician was not paid—R.C. 109.36—Physician was not serving in
        elected or appointed office or position with state.
     (No. 2009-1735—Submitted February 1, 2011—Decided July 13, 2011.)
      APPEAL from the Court of Appeals for Franklin County, No. 09AP-53,
                       184 Ohio App.3d 669, 2009-Ohio-3957.
                                 __________________
        PFEIFER, J.
        {¶ 1} Appellant, University of Toledo College of Medicine (“College of
Medicine”), appeals the lower court’s decision that Dr. Marek Skoskiewicz is
entitled to personal immunity in the medical-malpractice suit filed against him
because he is an officer or employee of the state. For the reasons that follow, we
conclude that Dr. Skoskiewicz is not an officer or employee of the state.
                      I. Factual and Procedural Background
        {¶ 2} Dr. Marek Skoskiewicz practices general surgery at Henry County
Hospital in Napoleon, Ohio. Henry County Hospital is a private organization and
is not affiliated with the College of Medicine or any other state-sponsored
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institution. Dr. Skoskiewicz has been a volunteer clinical faculty member of the
College of Medicine since 1995. The University of Toledo is a state university.
R.C. 3345.011.
       {¶ 3} In January 2005, while a third-year medical student from the
College of Medicine was observing, Dr. Skoskiewicz performed two vasectomy
surgeries on appellee, Larry Engel Jr., on separate days. Both of these procedures
occurred at Henry County Hospital. Allegedly due to negligence during the first
and second surgeries, a third surgery, to remove Engel’s necrotic right testicle,
was performed.
       {¶ 4} In May 2006, Engel filed a medical-malpractice suit against Dr.
Skoskiewicz in the Henry County Court of Common Pleas. Dr. Skoskiewicz
asserted that he was entitled to personal immunity pursuant to R.C. 9.86 because,
at the time of the surgeries, he was acting in his capacity as a volunteer clinical
instructor of the College of Medicine and was therefore an officer or employee of
the state. Accordingly, Engel filed an action against the College of Medicine in
the Court of Claims, which possesses exclusive jurisdiction over personal-
immunity claims.     R.C. 2743.02(F).    In his complaint, Engel reasserted his
malpractice allegations and sought a determination whether Dr. Skoskiewicz was
entitled to personal immunity as a state employee. The court of common pleas
stayed Engel’s malpractice suit pending resolution of the personal-immunity issue.
       {¶ 5} The Court of Claims concluded that Dr. Skoskiewicz had
“performed the operations as a state employee” and that, therefore, he was entitled
to personal immunity. Engel v. Univ. of Toledo College of Medicine, Ct. of Cl.
No. 2008-03572, 2008-Ohio-7058, ¶ 23. The Tenth District Court of Appeals
affirmed, based on its conclusion that Dr. Skoskiewicz “satisfies the definition of
‘officer or employee’ in R.C. 109.36(A)(1)(a).” Engel v. Univ. of Toledo College




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of Medicine, 184 Ohio App.3d 669, 2009-Ohio-3957, 922 N.E.2d 244, ¶ 16. This
court accepted Engel’s discretionary appeal. 124 Ohio St.3d 1479, 2010-Ohio-
354, 921 N.E.2d 249.
                                    II. Analysis
       {¶ 6} R.C. 9.86 states, “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.” In
Theobald v. Univ. of Cincinnati, 111 Ohio St.3d 541, 2006-Ohio-6208, 857
N.E.2d 573, ¶ 14, this court stated that determining whether a person is entitled to
R.C. 9.86 immunity requires a two-part analysis, the first part of which is to
determine whether the person claiming immunity is a state officer or employee. If
the person claiming immunity is a state officer or employee, the second part of the
analysis is to determine whether that person was acting within the scope of
employment when the cause of action arose. Id. Because we conclude that Dr.
Skoskiewicz was not a state officer or employee when the cause of action arose,
we need not address the second part.
                     A. Is Dr. Skoskiewicz a state employee?
       {¶ 7} R.C. 109.36(A)(1)(a) through (d) defines who is a state officer or
employee for purposes of R.C. 9.86. R.C. 9.85(A); Theobald at ¶ 14. Only
subsection (a) is relevant here; it provides that a state officer or employee is “[a]
person who, at the time a cause of action against the person arises, is serving in an
elected or appointed office or position with the state or is employed by the state.”




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       {¶ 8} This court has rarely had the opportunity to examine subsection (a)
of R.C. 109.36. In State ex rel. Sanquily v. Lucas Cty. Court of Common Pleas
(1991), 60 Ohio St.3d 78, 573 N.E.2d 606, we did little more than acknowledge
the obvious: that a doctor employed as a resident physician working for the
Medical College of Ohio, a state institution, was a state employee. We did not use
a specific test or look at a list of criteria to determine whether the doctor in that
case was a state officer or employee, as it was obvious that he was a state
employee.
       {¶ 9} Although Theobald involved a similar medical-malpractice suit
filed against several doctors, the case is of little help here. The issue whether the
doctors were state employees was not before the court because it had not been
appealed. Id. at ¶ 14. The ultimate issue in Theobald was whether the doctors
were acting within the scope of employment when the alleged negligence
occurred, which is not relevant here. Id.
       {¶ 10} The College of Medicine suggests that certain factors be
considered when determining whether a person is a state employee. Although we
do not adopt a formal test, we find the proposed factors to be helpful. We
emphasize that other factors may be considered and stress that in most
circumstances a person’s status as a state employee is factually indisputable.
         1. Contractual relationship between state and alleged employee
       {¶ 11} The College of Medicine argues that Dr. Skoskiewicz was not a
state employee because he did not have a contractual relationship with the College
of Medicine. The only possible evidence that such a contractual relationship did
exist are two letters from the College of Medicine, one from 1995 and one from
2005, confirming Dr. Skoskiewicz’s status as a volunteer clinical instructor. But
the letters do not show that Dr. Skoskiewicz was hired, appointed, or credentialed




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by the College of Medicine. Indeed, the parties stipulated that Dr. Skoskiewicz
practiced general surgery at Henry County Hospital, which is not affiliated with or
a part of any state university and is not an instrumentality of the state of Ohio. We
conclude that there was no contract of employment, written or oral, between the
College of Medicine and Dr. Skoskiewicz.
                2. State control over actions of purported employee
       {¶ 12} The College of Medicine argues that Dr. Skoskiewicz was not a
state employee because the College of Medicine did not exercise control over Dr.
Skoskiewicz’s medical practice. This argument is based on “the logical principle
that where the state lacks the ability to control a physician’s actions it makes no
sense to extend immunity to him.” See Walton v. State Dept. of Health, 162 Ohio
App.3d 65, 2005-Ohio-3375, 832 N.E.2d 790, ¶ 19 (citing state’s lack of control
over plaintiff as basis for holding that plaintiff was not state employee). At all
times relevant to this case, Dr. Skoskiewicz was treating a private patient at a
private hospital.
       {¶ 13} For its holding that Dr. Skoskiewicz was serving in an appointed
position with the state, the court of appeals relied on the 2005 letter from the
College of Medicine to Dr. Skoskiewicz confirming his “appointment” to the
volunteer faculty. That letter states, “As a condition of appointment, you will be
subject to the [Medical College of Ohio] Faculty Rules and Regulations, and
Medical College of Ohio policies and procedures, including those governing
research. Use of your Medical College of Ohio title or academic affiliation on
professional publications, such as professional journal articles, requires the prior
approval and is at the discretion of the department chair.” But this language,
without more, does not demonstrate that the College of Medicine exercised, or
intended to exercise, such control over Dr. Skoskiewicz’s practice of medicine as




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to justify a holding that the doctor was at any time a state employee. Whether the
rules, regulations, policies, and procedures cited in the first sentence above would
control the way Dr. Skoskiewicz practiced medicine is a matter of pure
speculation. The import of the second sentence seems to be to ensure that the
College of Medicine’s name is not used to lend gravitas to published materials
without its prior approval, which hardly shows the kind of control that would
support a holding of employment. We conclude that the College of Medicine did
not control Dr. Skoskiewicz.
                3. Payment by state for services of alleged employee
       {¶ 14} Finally, the College of Medicine argues that Dr. Skoskiewicz was
not a state employee because he was not paid by the state for his services. The
parties stipulated that “[a]t no time relevant to this case was Dr. Skoskiewicz a
member of the regular faculty of the [College of Medicine]. At all times relevant
to this case, regular faculty members of the [College of Medicine] were paid
academic salaries directly from [the college]. Dr. Skoskiewicz did not receive any
such salary.”
       {¶ 15} That the College of Medicine did not directly pay Dr. Skoskiewicz
does not necessarily mean that he is not a state employee. For example, in
Potavin v. Univ. Med. Ctr. (Apr. 19, 2001), 10th Dist. No. 00AP-715, 2001 WL
392492, the court of appeals concluded that a state entity, the University of
Cincinnati Medical Center, and a private entity, the Foundation for Obstetrics and
Gynecology, “functioned as one entity” because the foundation “could not exist if
not for its relationship” with the medical center. Id. at *5. Based on that finding,
the court concluded that a doctor who volunteered for the state entity but who was
paid by the foundation was a state employee. Id. But here no such symbiotic




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relationship exists. The College of Medicine did not pay Dr. Skoskiewicz, and the
Henry County Hospital, which is not connected with the college, did.
          {¶ 16} Based on the record before us, we conclude that there was no
contract of employment between the College of Medicine and Dr. Skoskiewicz,
that the College of Medicine did not exercise control over Dr. Skoskiewicz’s
medical practice, and that the College of Medicine did not pay Dr. Skoskiewicz.
Based on these conclusions, we conclude that Dr. Skoskiewicz was not an
employee of the College of Medicine.
               B. Does Dr. Skoskiewicz hold a state office or position?
          {¶ 17} We must also determine whether Dr. Skoskiewicz was “serving in
an elected or appointed office or position with the state” within the meaning of
R.C. 109.36(A)(1)(a). Based on the record and briefs, there is no suggestion that
Dr. Skoskiewicz was holding an elected office or position, so we need not address
that issue, which leaves us to consider only whether Dr. Skoskiewicz holds an
“appointed office or position with the state.”
          {¶ 18} To be sure, the letters that Dr. Skoskiewicz received from the
College of Medicine stated that the College of Medicine had approved his
“appointment” to the volunteer faculty at the rank of clinical assistant professor.
As support for the proposition that Dr. Skoskiewicz had been appointed to an R.C.
109.36 “office or position,” however, these letters are a slender reed. We refuse
to read so much into the letters’ use of the word “appointment” because, to us, the
more significant words in R.C. 109.36(A)(1)(a) are “office or position with the
state.”
          {¶ 19} Dr. Skoskiewicz does not occupy a position or office with the state.
In State ex rel. Newman v. Skinner (1934), 128 Ohio St. 325, 191 N.E. 127, this
court was required to determine whether a person employed by the state as a




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librarian was also a state officer.     We stated that “[a] public officer, as
distinguished from an employee, must possess some sovereign functions of
government to be exercised by him for the benefit of the public either of an
executive, legislative, or judicial character. * * * ‘[T]he chief and most decisive
characteristic of a public office is determined by the quality of the duties with
which the appointee is invested, and by the fact that such duties are conferred
upon the appointee by law.’ ” Id. at 327, quoting State ex rel. Landis v. Butler
Cty. Bd. of Commrs. (1917), 95 Ohio St. 157, 159, 115 N.E. 919. Clearly, Dr.
Skoskiewicz possessed no “sovereign” function of an executive, legislative, or
judicial character. And his duties were not of a level consonant with those of a
public office. The appointment did not entitle Dr. Skoskiewicz to office space,
staff, or authority at the College of Medicine; did not enable him to lecture or
teach a class at the College of Medicine; did not allow him to conduct university-
sponsored research, although he was allowed to collaborate with College of
Medicine researchers; did not allow him to practice at the university clinic; and
did not entitle him to payment from the College of Medicine. In truth, based on
the record before us, the appointment did not enable Dr. Skoskiewicz to do
anything except, as stipulated, allow students to “rotate through Dr. Skoskiewicz’s
practice as a part of one-month clerkships.” Furthermore, the appointment did not
impose any duties upon Dr. Skoskiewicz. To the extent that complying with the
College of Medicine’s policy guidelines is a duty, the duty was not conferred by
law.
       {¶ 20} Dr. Skoskiewicz and the many other volunteer clinical faculty in
Ohio provide an important service. But that service, however commendable, does
not transform the volunteers behind it into an arm of the state. Based on the




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record before us, we conclude that Dr. Skoskiewicz did not hold an appointed
office or position with the state.
                                     III. Conclusion
        {¶ 21} We conclude that Dr. Skoskiewicz is not a state employee and that
he does not hold an appointed office or position with the state. Accordingly, he is
not entitled to personal immunity pursuant to R.C. 9.86. We reverse the judgment
of the court of appeals and remand for further proceedings consistent with this
opinion.
                                                                  Judgment reversed
                                                              and cause remanded.
        O’CONNOR, C.J., and LUNDBERG STRATTON, O’DONNELL, LANZINGER,
CUPP, and MCGEE BROWN, JJ., concur.
                                __________________
        Law Office of John B. Fisher, L.L.C., and John B. Fisher, for appellee.
        Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor
General, Brandon J. Lester, Deputy Solicitor, and Anne Berry Strait, Assistant
Attorney General, for appellant.
        Kitch, Drutchas, Wagner, Valitutti & Sherbrook, Susan Healy Zitterman,
and John S. Wasung, urging affirmance for amicus curiae Dr. Marek Skoskiewicz.
        Giorgianni Law, L.L.C., and Paul Giorgianni; Amer Cunningham Co.,
L.P.A., and Thomas R. Houlihan; and Elk & Elk Co., Ltd., and Peter D. Traska,
urging reversal for amicus curiae Ohio Association for Justice.
                             ______________________




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