[Cite as Lamp v. Univ. of Toledo, 2012-Ohio-6360.]




                                                     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



DEBORAH LAMP, et al.

       Plaintiffs

       v.

UNIVERSITY OF TOLEDO, et al.

       Defendants

Case No. 2009-01166

Judge Patrick M. McGrath

DECISION

        {¶ 1} On November 15, 2012, the parties filed a joint stipulation of facts relevant
to the civil immunity of James M. Horner, M.D. and Richard L. Munk, M.D. pursuant to
R.C. 2743.02(F) and 9.86.             Drs. Horner and Munk treated and cared for plaintiff
Christopher Lamp.
        {¶ 2} The parties stipulated to the following facts:
        {¶ 3} “1. At all times relevant to the complaint filed herein, James M. Horner,
M.D., was a paid, full-time employee of the Medical College of Ohio and its successor,
the Medical University of Ohio (hereinafter MCO/MUO) as an Associate Professor of
Pediatrics. MCO/MUO was a state medical school created under former R.C. Chapter
3350.1 As such, Dr. Horner was an ‘employee’ of MCO/MUO as that term is used in
R.C. 109.36 and 9.86, and as set forth in Theobald v. Univ. of Cincinnati, 111 Ohio
St.3d 541, 2006-Ohio-6208, 857 N.E.2d 573.                 Copies of Dr. Horner’s faculty
appointment letters from 1997 through 2005 are attached hereto as Exhibit A.
Case No. 2009-01166                           -2-                       JUDGMENT ENTRY

       {¶ 4} “2. Dr. Horner treated Christopher Lamp at his office at St. Vincent Mercy
Medical Center, which Dr. Horner maintained as part of the MCO/MUO Pediatric
Residency Program at Mercy Children’s Hospital/St. Vincent Mercy Medical Center
(hereinafter ‘SVMMC’). Dr. Horner practiced at SVMMC under the provisions of service
agreements entered into between MCO/MUO. Under the terms of these agreements,
Dr. Horner remained a full-time employee of MCO/MUO, but he provided clinical and
teaching services at SVMMC for the purposes of the residency program. A copy of the
2005 Service Agreement is attached hereto as Exhibit B. Therefore, in accordance with
Theobald, supra, Dr. Horner was acting within the course and scope of his faculty
employment with MCO/MUO when he treated Christopher Lamp.
       {¶ 5} “3. At all times relevant to the complaint filed herein, Richard L. Munk,
M.D., held a volunteer faculty appointment as a clinical associate professor with
MCO/UT in the department of orthopedics. Dr. Munk also held a volunteer faculty
appointment as a clinical instructor with the Ohio University College of Osteopathic
Medicine (OUCOM).
       {¶ 6} “4. As volunteer faculty, Dr. Munk was not an employee of either
MCO/MUO or OUCOM.”
       {¶ 7} R.C. 2743.02(F) states, in part:
       {¶ 8} “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


       1
        “MCO/MUO were consolidated into the University of Toledo by R.C. Chapter 3364. Dr. Horner
continues to be an employee of the University of Toledo.”
Case No. 2009-01166                          -3-                       JUDGMENT ENTRY

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.”
       {¶ 9} R.C. 9.86 states, in part:
       {¶ 10} “[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.”
       {¶ 11} “[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 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.”
Theobald v. Univ. of Cincinnati, 111 Ohio St.3d 541, 2006-Ohio-6208, ¶ 30-31.
       {¶ 12} The parties have stipulated that at all times relevant, Dr. Munk was a
volunteer faculty member of both MCO/UT and OUCOM, and was not an employee of
the state of Ohio. See Engel v. Univ. of Toledo College of Med., 130 Ohio St.3d 263,
2011-Ohio-3375. Accordingly, the court finds that, based on paragraphs three and four
of the parties’ stipulation, Dr. Munk was not an employee of the state of Ohio and that
he is not entitled to civil 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 Dr. Munk based upon the allegations in this case.
       {¶ 13} The parties stipulated that Dr. Horner was an Associate Professor of
Pediatrics and that he was a paid, full-time employee of MCO/MCU, a state medical
school which was later consolidated with the University of Toledo. Accordingly, based
Case No. 2009-01166                          -4-                   JUDGMENT ENTRY

on paragraph one of the parties’ stipulation, the court concludes that Dr. Horner was a
faculty physician employed by the state of Ohio.
       {¶ 14} Inasmuch as Dr. Horner was an employee of the state of Ohio at the time
he treated Christopher Lamp, the court must determine whether Dr. Horner was acting
on behalf of the state when Christopher Lamp was alleged to have been injured. See
Theobald, supra, ¶ 31. “[T]he 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.” Id. at ¶ 23.
       {¶ 15} According to paragraph two of the parties’ stipulation, Dr. Horner treated
Christopher Lamp at SVMMC and Dr. Horner practiced at SVMMC under service
agreements entered into between MCO/MUO. Under such agreements, Dr. Horner was
a full-time employee of MCO/MUO but provided clinical and teaching services at
SVMMC for the purpose of the MCO/MUO Pediatric Residency Program. Accordingly,
Dr. Horner was within the course and scope of his employment when he treated
Christopher Lamp. The court concludes that Dr. Horner is entitled to immunity pursuant
to R.C. 9.96 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.
       {¶ 16} The joint stipulation of facts is hereby APPROVED and the court finds that
James M. Horner, M.D. is entitled to immunity pursuant to R.C. 9.86 and 2743.02(F).
The courts of common pleas do not have jurisdiction over any civil actions that may be
filed against Dr. Horner based upon the allegations in this case. The court further finds
that Richard L. Munk, M.D. is not entitled to civil 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 him based upon the allegations in this case.
Case No. 2009-01166                        -5-                       JUDGMENT ENTRY




                                               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



DEBORAH LAMP, et al.

      Plaintiffs

      v.

UNIVERSITY OF TOLEDO, et al.

      Defendants

Case No. 2009-01166

Judge Patrick M. McGrath

JUDGMENT ENTRY

       {¶ 17} This case was submitted to the court on a joint stipulation of facts
regarding the civil immunity of James M. Horner, M.D. and Richard L. Munk, M.D. Upon
review of the stipulations, and for the reasons set forth in the decision filed concurrently
herewith, the court finds that James M. Horner, 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 them based upon the allegations in this
case. Furthermore, the court finds that Richard L. Munk, M.D. is not entitled to civil
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 him based upon the
allegations in this case.
Case No. 2009-01166                        -6-                       JUDGMENT ENTRY

         {¶ 18} Inasmuch as all claims against defendants were dismissed on June 8,
2009, and this case remained pending for the limited purpose of determining whether
Drs. Horner and Munk are entitled to immunity, plaintiffs’ complaint is DISMISSED in its
entirety. 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.



                                          _____________________________________
                                          PATRICK M. MCGRATH
                                          Judge


cc:


Anne B. Strait                                Michael D. Bell
Brian M. Kneafsey, Jr.                        3516 Granite Circle
Assistant Attorneys General                   Toledo, Ohio 43617-1172
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

John S. Wasung
David T. Henderson
405 Madison Avenue, Suite 1500
Toledo, Ohio 43604

007
Filed December 13, 2012
To S.C. Reporter March 22, 2013
