[Cite as Boyd v. Univ. of Toledo Med. Ctr., 2016-Ohio-5225.]



DANIEL BOYD                                            Case No. 2014-00186

       Plaintiff                                       Judge Patrick M. McGrath

       v.                                              ENTRY GRANTING DEFENDANT’S
                                                       MOTION FOR SUMMARY JUDGMENT
UNIVERSITY OF TOLEDO MEDICAL
CENTER

       Defendant



        {¶1} On March 7, 2016, plaintiff filed a motion for immunity determination in
which he requests that the court make a determination regarding whether Haitham
Elsamaloty, M.D., is entitled to personal immunity, pursuant to R.C. 9.86. Defendant did
not file a response to this motion. However, on March 25, 2016, it filed a motion for
summary judgment in which it argues that Dr. Elsamaloty is entitled to personal
immunity, pursuant to R.C. 9.86 as he was an employee of defendant and was working
within the course and scope of his employment at the time that he rendered medical
care to plaintiff. Plaintiff did not file a response to defendant’s motion for summary
judgment.

Statement of Facts
        {¶2} In his complaint, plaintiff claims that he had a brain shunt surgically
implanted in his head shortly after his birth. Throughout his life he has experienced
issues related to the malfunctioning of the shunt. They required frequent and ongoing
medical treatment. One such issue occurred in the summer of 2012 when plaintiff
began experiencing severe headaches. On July 17, 2012, plaintiff was taken to the
University of Toledo Medical Center emergency department. A CT was performed, and
read by defendant Haitham Elsamaloty, M.D.                      Plaintiff claims Dr. Elsamaloty
inaccurately read the CT.            He alleges that on August 24, 2012, the misdiagnosis
Case No. 2014-00186                            -2-                                 ENTRY


resulted in plaintiff suffering hemorrhaging, seizures, cardiac and respiratory arrests, all
causing permanent injuries.
       {¶3} On February 12, 2015, the court granted summary judgment and rendered
judgment in favor of defendant, finding that plaintiff’s complaint was filed outside the
statute of limitations.   On March 30, 2015, plaintiff filed a motion for relief from
judgment, pursuant to Civ. R. 60(B)(1) and (5). On April 24, 2015, the court denied
plaintiff’s motion for relief from judgment. Plaintiff appealed that decision, and it was
affirmed by the Tenth District Court of Appeals on December 24, 2015.
       {¶4} Plaintiff obtained new counsel and filed a motion for an immunity
determination as the connected action remains stayed in the Lucas County Court of
Common Pleas and will remain so until the court issues an immunity determination.

Summary Judgment Standard
       {¶5} Civ.R. 56(C) states, in part, as follows:
       {¶6} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).

Personal Immunity Pursuant to R.C. 2743.02(F) and R.C. 9.86
       {¶7} R.C. 2743.02(F) states, in part:
Case No. 2014-00186                          -3-                                     ENTRY


       {¶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 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.”
       {¶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 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.
       {¶12} “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
Case No. 2014-00186                        -4-                                    ENTRY


resident when the alleged negligence occurred.” Theobald v. Univ. of Cincinnati, 111
Ohio St.3d 541, 2006-Ohio-6208, ¶ 30-31.
      {¶13} “[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.” Theobald, supra, at ¶ 23.
      {¶14} The Supreme Court of Ohio has stated:
      {¶15} “Theobald did not establish a categorical rule that a physician who is a
member of the faculty of a state medical college is immune for providing clinical care
only while teaching a medical student or resident. Rather, the scope of employment is a
fact-based inquiry that turns on proof of the employee’s specific job description with the
state and focuses on whether the employee’s conduct is related to and promotes the
state’s interests.” Ries v. Ohio State Univ. Med. Ctr., 137 Ohio St.3d 151, 2013-Ohio-
4545, ¶ 23.

Analysis
      {¶16} Defendant argues that Dr. Elsamaloty was a full-time employee of the
University of Toledo College of Medicine & Life Sciences, which is an instrumentality of
the state in accordance with R.C. 3365. This assertion is confirmed by the affidavit of
Christopher Cooper, M.D., Vice President for Clinical Affairs and Dean of the College of
Medicine & Life Sciences for The University of Toledo and the two documents attached
to defendant’s motion: The University of Toledo Health Science Campus Appointment,
effective July 1, 2011 – June 30, 2012; and The University of Toledo Health Science
Campus Appointment, effective July 1, 2012 – June 30, 2013.
Case No. 2014-00186                         -5-                                    ENTRY


        {¶17} Likewise, defendant contends that Dr. Elsamaloty was working within the
course and scope of his employment at the time that he rendered healthcare to plaintiff.
The provision of patient care by full-time College of Medicine & Life Sciences faculty is
an essential and integral part of faculty responsibilities and is of direct benefit to the
University of Toledo. (Cooper Aff., ¶ 4).
        {¶18} Dr. Elsamaloty’s responsibilities included more than just clinical teaching
responsibilities. He was also tasked with the provision of patient care on behalf of the
University of Toledo. As such, the court need not determine whether he was engaged
in teaching a medical student or resident at the time that he rendered medical care to
plaintiff.   Rather, pursuant to the holding in Ries, the court need only determine
“whether the employee’s conduct is related to and promotes the state’s interests.” The
court finds, based in part the affidavit of Dr. Cooper, that Dr. Elsamaloty was engaged in
conduct that furthered the interests of the University of Toledo at the time that he
rendered patient care to plaintiff. There is no evidence that Dr. Elsamaloty was acting
‘manifestly outside the scope of employment.’

Conclusion
        {¶19} Upon careful consideration, defendant’s motion for summary judgment is
GRANTED.         Accordingly, plaintiff’s motion for immunity determination is hereby
DENIED as moot.
        {¶20} The court finds that Dr. Elsamaloty is entitled to personal immunity
pursuant to R.C. 9.86 and 2743.02(F), and 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. Court costs are assessed against plaintiff. The clerk shall serve
upon all parties notice of this judgment and its date of entry upon the journal.




                                                  PATRICK M. MCGRATH
                                                  Judge
Case No. 2014-00186            -6-                                ENTRY



cc:
Gregory S. Scott                Anne Berry Strait
610 Skylight Office Tower       Assistant Attorney General
1660 West Second Street         150 East Gay Street, 18th Floor
Cleveland, Ohio 44113           Columbus, Ohio 43215-3130

Filed June 20, 2016
Sent to S.C. Reporter 8/3/16
