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Ohio Appeals Court Holds University Hospital Surgeon Not Entitled To Civil Immunity In Lawsuit By Patient

 
 

HLD, v. 30, n. 2 (February 2002)

Ohio Appeals Court Holds University Hospital Surgeon Not Entitled To Civil Immunity In Lawsuit By Patient

Plaintiff Homer Smith underwent a kidney and pancreas transplant at University Hospital in Cincinnati (University Hospital), a not-for-profit organization that is not affiliated with the State of Ohio. After the surgery, Smith lost sensation in both arms due to an injury resulting from improper positioning during the surgery. Smith sued the state, the University Hospital, his surgeon and the surgeon's assistant, surgery resident physicians, and the anesthesiologists. The trial court held that the surgeon was acting within the scope of his employment as a professor of surgery at the University Hospital, and thus was entitled to civil immunity under state law.

The Ohio Court of Appeals, Tenth Appellate District, reversed the decision of the trial court and held that the surgeon was not entitled to civil immunity because he was acting outside the scope of his employment with the University Hospital when he performed surgery on Smith. The appeals court reviewed the case law pertaining to this issue, beginning with Katko v. Balcerzak, 41 Ohio App.3d 375 (1987), in which the court held that "the services rendered by the physician to the plaintiff's decedent and receipt of such payment through the partnership, of which none was paid to the university, tended to indicate that the physician, in treating the patient, was acting outside the scope of his duties for the university and was conducting his own business." The appeals court also noted that in the unreported case of Wayman v. University of Cincinnati, it listed two major factors for determining whether a physician acted outside the scope of his employment for a state university hospital: "(1) whether the patient was the physician's private patient or a patient of the university, and (2) the university's financial gain from the treatment rendered compared to the physician's gain from it." Applying these factors to the instant case, the appeals court determined that the surgeon was acting outside the scope of his employment. First, the appeals court noted that, although the surgeon saw Smith only as a patient through the University Hospital, the University Hospital was a private corporation and not affiliated with the state. Second, the appeals court noted that, although the surgeon was an employee of both the University Hospital as well as the University Surgical Group of Cincinnati (USGC)--a professional practice group--most of the money generated by the surgeons in their clinical practice remained within the practice for distribution. In other words, the surgeons did not give any money back to the University Hospital; rather, the University Hospital gave money to the USGC for the academic aspects of their department. The appeals court determined that USGS provided the surgeon with a separate W-2 form and paid for the surgeon's malpractice insurance, life insurance, pension, and disability insurance. Thus, the appeals court concluded that the trial court erred when it held that the surgeon was acting within the scope of his employment with the University Hospital when he performed surgery on Smith.

Smith v. University of Cincinnati, No. 01AP-404 (Ohio Ct. App. Nov. 29, 2001) (12 pages).

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