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Covington v. University of Cincinnati College of Medicine

Court of Claims of Ohio

July 9, 2019

JASON COVINGTON, Admr., et al. Plaintiffs
v.
UNIVERSITY OF CINCINNATI COLLEGE OF MEDICINE Defendant

          Sent to S.C. Reporter 8/27/19

          DECISION

          PATRICK M. MCGRATH JUDGE

         {¶1} This matter came before the court for an evidentiary hearing to determine whether Norberto Andaluz, M.D., is entitled to civil immunity pursuant to R.C. 2743.02(F) and R.C. 9.86. For the reasons set forth below, the court finds that Dr. Andaluz is entitled to civil immunity.

         FACTUAL BACKGROUND

         {¶2} This immunity determination is related to a medical malpractice claim that arose due to the death of Joshua Stewart, a minor. On May 19, 2015, Stewart was admitted to The University of Cincinnati Medical Center (UCMC) after he was involved in a bicycle/vehicle collision. Dr. Andaluz was the attending physician assigned to care for Stewart. A resident named Mohamed Saleh, M.D. was present when Dr. Andaluz treated Stewart. Testing conducted at UCMC revealed that Stewart had a head injury. Dr. Andaluz treated Stewart with anticoagulants. On May 23, 2015, Stewart was discharged under parental supervision and was instructed to self-administer anticoagulants daily. On May 27, 2015, Stewart collapsed at his home. Stewart was taken to UCMC where an emergency craniotomy was performed by Dr. Andaluz. Stewart never regained consciousness and later died on May 30, 2015. Plaintiffs allege that defendant breached the standard of care by discharging Stewart before his condition stabilized, and by overprescribing anticoagulants which ultimately lead to his death. Dr. Andaluz asserts that he was acting on behalf of the state during his care and treatment of Stewart, and consequently, he is entitled to civil immunity pursuant to R.C. 2743.02(F) and R.C. 9.86.

         R.C. 2743.02(F) states, in part:

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.
R.C. 9.86 states, in part:
[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.
The Supreme Court of Ohio has stated,
[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.
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.

         {¶3} Dr. Andaluz testified that he began his employment as the Director of Neurotrauma for The Department of Neurosurgery for the University of Cincinnati (UC), a public university, on July 1, 2011, as reflected in his letter of appointment dated May 26, 2011. (Exhibit A-2). The letter of appointment states, in part:

         {¶4} "Effective July 1, 2011 your employment status will change from Strict Full-Time Affiliated (STFA) to Geographic Full Time Affiliated (GFTA) which means you will receive an annual UC salary of [redacted in original]. Your job duties, expectations and benefits will remain the same as outlined in your initial letter of offer dated March 6, 2009." Dr. Andaluz's Academic and Research Goals are attached to the letter of appointment. ...


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