[Cite as Lidrbauch v. Wright State Univ. Boonshoft School of Med., 2017-Ohio-820.]




ELENA LIDRBAUCH, etc., et al.                         Case No. 2016-00330

       Plaintiffs                                     Magistrate Holly True Shaver

       v.                                             DECISION OF THE MAGISTRATE

WRIGHT STATE UNIVERSITY
BOONSHOFT SCHOOL OF MEDICINE

       Defendant



        {¶1} On September 1, 2016, the parties filed a stipulation regarding the civil
immunity of Janice M. Duke, M.D. On October 19, 2016, the court ordered the parties
to file additional evidence regarding Dr. Duke’s duties as a state employee, such as her
employment contract and additional stipulated facts regarding the care and treatment
that she provided to plaintiffs Angela Williams and Azavier Preston. On December 16,
2016, counsel for Dr. Duke filed additional evidence for the court to consider.
        {¶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 that 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:
        {¶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
Case No. 2016-00330                         -2-                                DECISION


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} “[l]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. * * *
        {¶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.
        {¶8} “[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. Thus, proof of the content of the practitioner’s duties is
crucial. The Court of Claims must have evidence of those duties before it can be
determined whether the actions allegedly causing a patient’s injury were ‘in furtherance
of the interests of the state’ or, in other words, within the scope of employment.” Id.
¶ 23.
        {¶9} According to plaintiffs’ complaint, on December 2, 2004, plaintiff Angela
Williams began her prenatal care with Miami Valley Hospitals Center for Women’s
Healthcare. On January 31, 2005, Williams was noted to have a bicornuate uterus,
which caused her pregnancy to be considered high risk in nature and warranted close
monitoring of fetal growth throughout her pregnancy. Plaintiffs allege that Dr. Duke
Case No. 2016-00330                         -3-                               DECISION


provided negligent medical care to Williams during her pregnancy and in the delivery of
Preston which resulted in permanent injury to Preston.
      {¶10} In the stipulation, the parties agree as follows:
      {¶11} “1.     From December 4, 2004 to June 30, 2005, Janice M. Duke, M.D.
held a full-time appointment to the faculty of the Wright State University Boonshoft
School of Medicine at the faculty rank of Assistant Professor of Surgery, as an
‘employee’ of the Wright State University (as that term is used in Ohio Rev. Code
§§109.36 and 9.86), and at such time she was also an employee of Wright State
Physicians Women’s Healthcare.
      {¶12} “2.     As set forth in the Complaint, the allegations of negligence against
Dr. Duke in this matter arise out of the treatment of Angela Williams from December 2,
2004 through June 30, 2005.
      {¶13} “3.     At all times during that treatment relevant to the allegations made in
this suit, Dr. Duke was acting within the course and scope of her employment with the
Wright State University, as well as Wright State Physicians Women’s Healthcare.”
      {¶14} In her affidavit, Dr. Duke avers as follows:
      {¶15} “1.     I, Janice Duke MD, am an obstetrician/gynecologist licensed in the
state of Ohio. I have been named in a lawsuit in Montgomery County Common Pleas in
addition to this action in the Ohio Court of Claims, alleging malpractice in connection
with the care and treatment of Angela Williams.
      {¶16} “2.     On October 11, 1999, I entered into a contract with Wright State
University Boonshoft School of Medicine (‘WSUBSOM Contract’) to serve as an
Assistant Professor and Instructor in the WSUBSOM Department of Obstetrics and
Gynecology. This contract is attached to this Affidavit as Exhibit ‘A’ and is a true and
accurate copy thereof.
      {¶17} “3.     Pursuant to the WSUBSOM employment contract, I was to be
stationed in Miami Valley Hospital (‘MVH’) where I was required to engage in teaching
Case No. 2016-00330                          -4-                                 DECISION


and medical practice activities for Boonshoft residents and students. (Exhibit ‘A’).
Specifically, under the WSUBSOM contract, I was responsible for a teaching role in
medical student and resident education relative to the activities of the Boonshoft
Department of Obstetrics and Gynecology under the auspices of the School of
Medicine. (Id.) l was also required to perform other duties as mutually agreed upon by
the Chair, Department of Obstetrics and Gynecology. (ld.) As terms of my employment
with WSUBSOM the University paid me a full time salary with benefits.
       {¶18} “4.     On August 31, 2004, the WSUBSOM offered me the position of
Medical Director, Center for Women’s Health (‘CWH’) at Miami Valley hospital in the
Department of Obstetrics & Gynecology at the Wright State University Boonshoft School
of Medicine. I accepted the position on September 4, 2004. A true and accurate copy
of this contract is attached as Exhibit ‘B.’ This contract was in force during all relevant
times including 12/2/04-7/1/05.
       {¶19} “5.     My duties as the Medical Director at the MVH Center for Women’s
Health are set forth in detail in Exhibit ‘B.’ These duties included but were not limited to:
treating patients of the clinic while supervising and educating residents in the setting of
clinical care; I was tasked with generating, improving, and maintaining all practice
policies for the CWH; I chaired monthly meetings with residents, CWH nursing, faculty,
and the OB/Gyn Chair to discuss and resolve Clinic issues; meet yearly with
WSUBSOM gynecology teaching associates in order to maintain communication about
the clinical instruction program and how it can be improved for the benefit of the
residents of WSU; and to assist in achieving a clinical environment which was efficient,
patient friendly, clinically sound, and positive for the residents, and faculty of WSU.
       {¶20} “6.     Angela Williams first treated at the Miami Valley Hospital Center for
Women’s Healthcare Perinatal Clinic on December 2, 2004.              She was 11 weeks
pregnant. On July 1, 2005, Angela Williams was admitted to Miami Valley Hospital and
delivered her son Azavier Preston, by Cesarean Section.
Case No. 2016-00330                          -5-                                 DECISION


          {¶21} “7.    During the time period December 2, 2004 through July 1, 2005, I
was carrying out my duties as set forth above, namely supervising residents in providing
clinical care to patients at the MVH CWH. Pursuant to my contract as set forth herein, I
was required to maintain a clinical practice and treat obstetrical patients, such as
Angela Williams, at Miami Valley Hospital Center for Women's Health in addition to
providing clinical instruction to WSU residents.
          {¶22} “8.    During the relevant time period of December 2, 2004, through July
1, 2005, and pursuant to my WSUBSOM Contract, I was an attending obstetrician who
was treating patients and teaching residents and students of the Wright State University
Boonshoft School of Medicine at the MVH Center for Women's Healthcare Prenatal
Clinic.
          {¶23} “9.    Specifically, I supervised the following Boonshoft residents in the
prenatal care and treatment of Angela Williams at the MVH Center for Women’s
Healthcare Prenatal Clinic on the following dates: May 27, 2005 (Boonshoft Resident
Ealena Callendar MD), June 2, 2005 (Boonshoft Resident Dr. Williams), June 10, 2005
(Boonshoft Resident Heather Kleinhenz MD), June 17, 2005, and June 24, 2005
(Boonshoft Resident Andre Harris MD). (See Exhibit ‘C’, Progress notes from the MVH
Center for Women’s Healthcare Prenatal Clinic where Dr. Duke was stationed under her
WSUBSOM Contract.) Azavier Preston was delivered by C-Section on July 1, 2005.
          {¶24} “10.   Exhibit ‘C’ is a true and accurate copy of Angela Williams’ Progress
Notes of her prenatal care at the MVH Center for Women’s Healthcare Prenatal Clinic.
          {¶25} “11.   Pursuant to my contract with WSUBSOM, I was required to treat
patients and supervise residents on behalf of WSUBSOM at the CWH from the time
Angela Williams first presented until she delivered at Miami Valley Hospital.”
          {¶26} Upon review of the evidence submitted, the magistrate finds that Dr. Duke
was a state employee and that she was engaged in her duties under her WSUBSOM
contract as a state employee when she rendered medical care to both Williams and
Case No. 2016-00330                          -6-                                 DECISION


Preston from December 4, 2004 through June 30, 2005. Therefore, the magistrate
recommends that Janice Duke, 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 her based upon the allegations in this case.
        {¶27} A party may file written objections to the magistrate’s decision within 14
days of the filing of the decision, whether or not the court has adopted the decision
during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files
objections, any other party may also file objections not later than ten days after the first
objections are filed. A party shall not assign as error on appeal the court’s adoption of
any factual finding or legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely
and specifically objects to that factual finding or legal conclusion within 14 days of the
filing of the decision, as required by Civ.R. 53(D)(3)(b).




                                                   HOLLY TRUE SHAVER
                                                   Magistrate

cc:
David W. Skall                                Brian M. Kneafsey, Jr.
Michael F. Becker                             Jeanna V. Jacobus
Becker Haynes Building                        Assistant Attorneys General
134 Middle Avenue                             150 East Gay Street, 18th Floor
Elyria, Ohio 44035-5620                       Columbus, Ohio 43215-3130

James P. Triona
Paul J. Vollman
2021 Auburn Avenue
Cincinnati, Ohio 45219

Filed January 10, 2017
Sent to S.C. Reporter 3/7/17
