[Cite as Breidenbach v. Wright State Univ. Boonshoft School of Medicine, 2012-Ohio-6330.]



                                                       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



LINDA BREIDENBACH, et al.

       Plaintiffs

       v.

WRIGHT STATE UNIVERSITY BOONSHOFT SCHOOL OF MEDICINE

       Defendant

Case No. 2011-09985

Judge Clark B. Weaver Sr.

JUDGMENT ENTRY



        {¶ 1} On August 22, 2012, the court conducted an evidentiary hearing to
determine whether Michael Herbenick, M.D., is entitled to civil immunity pursuant to
R.C. 2743.02(F) and 9.86. 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
Code and whether the courts of common pleas have jurisdiction over the civil action.”
        {¶ 4} R.C. 9.86 states, in part:
Case No. 2011-09985                         -2-                                     ENTRY

       {¶ 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 there is no express contract
of employment, the court may require other evidence to substantiate an employment
relationship, such as financial and corporate documents, W-2 forms, invoices, and other
billing practices. 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. Univ. of Cincinnati, 111
Ohio St.3d 541, 2006-Ohio-6208, ¶ 30-31. (Emphasis added.)
       {¶ 8} At all times relevant, Dr. Herbenick was an assistant professor of medicine
and director of the orthopaedic surgery residency program at the Wright State University
Boonshoft School of Medicine (WSU).          (Defendant’s Exhibit C.)     He also provided
clinical care to patients at Miami Valley Hospital who were billed through his practice
group, the Wright State Physicians, Inc. (WSP).         Dr. Herbenick stated that he had
received income from both WSU and WSP. According to the offer of appointment as an
Case No. 2011-09985                         -3-                                  ENTRY

assistant professor at WSU, Dr. Herbenick’s employment was subject to the policies
and procedures of the school of medicine, including the bylaws and actions of the board
of trustees. (Defendant’s Exhibit B.) On August 26, 2009, Dr. Herbenick performed a
left total shoulder arthroplasty procedure on plaintiff, Linda Breidenbach.
       {¶ 9} Initially, the court finds that Dr. Herbenick’s position as an assistant
professor at WSU clearly qualifies as state employment. Thus, the issue before the
court is whether Dr. Herbenick was acting on behalf of the state at the time when the
alleged negligence occurred and, inasmuch as there is evidence that Dr. Herbenick’s
duties included the education of residents, whether he was in fact educating a resident
at the time of the alleged negligence.
       {¶ 10} At the hearing, defendant submitted an operation report that listed the
medical personnel who were present in the operating room during Linda Breidenbach’s
August 26, 2009 surgery. (Defendant’s Exhibit F.) The report lists Dr. Herbenick as the
surgeon and identifies Matthew Noyes, M.D. as the resident surgeon. Dr. Herbenick
identified the report and testified that Dr. Noyes was present. Dr. Herbenick admitted
that he had no specific recollection of this operation but that, based upon the record, he
was assisted by Dr. Noyes who was then a third-year orthopaedic surgical resident. Dr.
Herbenick explained that his customary practice was to allow experienced residents
such as Dr. Noyes to assist in performing the surgery, including placement of prosthetic
devices, retraction, and closure of the surgical site.
       {¶ 11} As stated in Theobold, supra, “‘[i]n many instances, the line between [the
physician’s] roles (practicing and teaching) is blurred because the practitioner may be
teaching by simply providing the student or resident an opportunity to observe while the
practitioner treats a patient.’” Id. at ¶ 16, quoting Theobald v. Univ. of Cincinnati, 160
Ohio App.3d 342, 2005-Ohio-1510, ¶ 34. In affirming the holding of the Tenth District
Court of Appeals, the Supreme Court 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.” Id. at ¶ 23. The Court
Case No. 2011-09985                        -4-                                   ENTRY

of Appeals had explained that “anytime 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, supra, 160 Ohio App.3d 342, 2005-Ohio-1510,
¶ 47.
        {¶ 12} The Theobald decision supports a finding of immunity in situations where a
state-employed attending physician is furthering the state’s interest by educating a
resident who assists in a surgical procedure under the direct supervision of the surgeon.
Id. Dr. Herbenick confirmed that he would have been teaching surgical techniques to
Dr. Noyes during the procedure.       Based upon Dr. Herbenick’s testimony and the
operative records, the court finds that a resident was present for the purpose of
education and that Dr. Herbenick was furthering the interests of the state in his care and
treatment of Linda Breidenbach when the alleged negligence occurred.
        {¶ 13} Based upon the totality of the evidence presented, the court concludes that
Dr. Herbenick’s duties as a state-employed professor in the department of orthopaedic
surgery included treating patients at both WSU and at Miami Valley Hospital, and that
he was engaged in those duties at the time of the alleged negligence. Consequently,
the court concludes that Dr. Herbenick is entitled to civil immunity pursuant to R.C. 9.86
and 2743.02(F), and accordingly, 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
Case No. 2011-09985                 -5-                              ENTRY


cc:


Brian M. Kneafsey, Jr.               David M. Deutsch
Assistant Attorney General           130 West Second Street, Suite 310
150 East Gay Street, 18th Floor      Dayton, Ohio 45402-1534
Columbus, Ohio 43215-3130

004
Filed September 10, 2012
To S.C. Reporter January 28, 2013
