[Cite as Barlow v. Ohio State Univ. Med. Ctr., 2010-Ohio-4305.]

                                                        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




MELISSA BARLOW, Exec.

       Plaintiff

       v.

THE OHIO STATE UNIVERSITY MEDICAL CENTER

       Defendant
       Case No. 2009-08594

Judge Alan C. Travis

DECISION




        {¶ 1} On July 15, 2010, the court conducted an evidentiary hearing to determine
whether David Sharp, M.D. is entitled to civil immunity pursuant to R.C.2743.02(F) and
9.86.1 Upon review of the testimony and evidence presented at the hearing, the court
makes the following determination.
        {¶ 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


        1
         On July 13, 2010, the parties filed a stipulation regarding the civil immunity of Theodore Farker,
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} 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. If the court determines that the
practitioner is not a state employee, the analysis is completed and R.C. 9.86 does not
apply.
         {¶ 7} “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.
         {¶ 8} At all times relevant, Dr. Sharp was an assistant professor in the
Department of Urology at The Ohio State University Medical Center (OSUMC).
(Defendant’s Exhibit A.) Dr. Sharp also provided clinical care to patients through a non-
profit private practice group, Ohio State University Physicians, Inc.
         {¶ 9} Plaintiff’s decedent, Mary Searls, was referred to Dr. Sharp for treatment
of a urological condition which required surgery and hospitalization following the
procedure. Dr. Sharp performed the surgery and he supervised a team of resident
physicians who assisted him during Searls’ treatment at OSUMC. According to the
medical records, Searls was admitted on November 18, 2008, and discharged on


M.D., and Marshall Winner, M.D. The stipulation is hereby APPROVED.
December 6, 2008.
      {¶ 10} Plaintiff asserts that Dr. Sharp failed to properly supervise Searls’
discharge in that Searls did not receive a written prescription for Heparin, a medication
that was listed in Searls’ discharge plan to treat her cardiac condition. Plaintiff Melissa
Barlow, Searls’ daughter, testified that she assisted in caring for her mother and that
defendant’s employees instructed her on how to properly administer Heparin to Searls.
Barlow stated that she called Dr. Sharp’s office after a residential nursing assistant
discovered that Searls had not been provided with either Heparin or a written
prescription for the medication.      Joyce Perry, a nurse who works with Dr. Sharp,
testified that Dr. Shore, a resident who worked with Dr. Sharp, wrote a prescription for
Heparin and that she faxed the prescription to Searls’ residential nursing assistant on
December 8, 2008.         Barlow testified that Searls subsequently experienced either a
stroke or heart attack and that on December 19, 2008, Searls died as a result of “heart
complications.”
      {¶ 11} Inasmuch as Dr. Sharp’s position as an assistant professor at OSUMC
qualifies as state employment, the issue before the court is whether Dr. Sharp was
engaged in the education of residents at the time of the alleged negligence. Theobald
at ¶31.
      {¶ 12} Plaintiff asserts that Barlow’s testimony established that the discharge
instructions were provided by a nurse who was neither a student nor a resident and, for
that reason, Dr. Sharp could not have been engaging in the education of residents at
the time of the negligence. The court disagrees.
      {¶ 13} Dr. Sharp testified regarding both his duties and those of the residents
who served under his instruction on the treatment team that cared for Searls. According
to Dr. Sharp, both he and the residents examined Searls during their daily rounds, after
which the physicians devised a treatment plan. Dr. Sharp testified that the residents
developed the discharge plan which was then finalized under his supervision. Dr. Sharp
acknowledged that while a nurse may have handed the discharge instructions to
Barlow, the physicians who issued the instructions remained responsible for ensuring
that Searls was provided with the medications and prescriptions that were listed in the
discharge instructions.
      {¶ 14} Based upon the totality of the evidence presented, the court concludes
that Dr. Sharp’s duties as a state-employed assistant professor of medicine included
treating patients and educating residents at OSUMC, and that he was engaged in those
duties at the time of the alleged negligence. The Theobald decision does not restrict
physician immunity to situations where a resident was physically present or assisting
the attending physician. Id. To the extent that plaintiff’s claims against defendant arise
from its failure to properly issue or implement the discharge instructions, the court finds
that Dr. Sharp’s involvement with the instructions was a collaboration with the residents
who were members of the treatment team. Indeed, the discharge instructions state that
they were finalized by Subbarao Mandalapu, M.D., a resident. (Joint Exhibit 1.) The
fact that Barlow received the instructions from a nurse who was neither a student nor a
resident does not alter the court’s conclusion that Dr. Sharp was engaged in educating
residents at the time of the alleged negligence. Therefore, the court concludes that Dr.
Sharp was acting within the scope of his state employment with OSUMC at all times
pertinent hereto.




                                              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




MELISSA BARLOW, Exec.

      Plaintiff

      v.

THE OHIO STATE UNIVERSITY MEDICAL CENTER

      Defendant
      Case No. 2009-08594
Judge Alan C. Travis

JUDGMENT ENTRY




          The court held an evidentiary hearing to determine civil immunity pursuant to

R.C. 9.86 and 2743.02(F). Upon reviewing all the evidence and for the reasons set

forth in the decision filed concurrently herewith, the court finds that David Sharp, M.D.,

Theodore Farker, M.D., and Marshall Winner, M.D., are 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 filed against them based upon the allegations in this case.


                                          _____________________________________
                                          ALAN C. TRAVIS
                                          Judge

cc:


Daniel R. Forsythe                           Ross A. Gillespie
Karl W. Schedler                             5650 Blazer Parkway, Suite 100
Assistant Attorneys General                  Dublin, Ohio 43017
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

AMR/cmd
Filed August 13, 2010
To S.C. reporter September 9, 2010
