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Court grants immunity to Dr. wearing `two hats'. .

ISSUE: It is often difficult for a patient who has been injured as a result of medical malpractice (particularly when it occurs in an emergency room) to ascertain which of one or more physicians and other entities, including the hospital, are liable. That was the situation in this Ohio case, in which a patient brought suit against a physician who was employed by a state university hospital and was also an employee of group of practice which provided emergency care under a contract with the hospital. Was the physician entitled to immunity as an employee of the state hospital? That was just one of the issues with which the courts were confronted in this Ohio case.

CASE FACTS: On July 2, 2000, Kathleen Kaiser filed a complaint against Ohio State University (OSU) in the Court of Claims of Ohio. In her complaint, MS. Kaiser averred that on January 27, 1999, she was transported to the emergency department at OSU Medical Center. She had a history of four days of lower abdominal pain, vomiting and diarrhea. She was seen by Dr. Michelle Dayton, a resident and Dr. Michael Waite, the attending physician. Her complaint further alleged that a urinalysis was performed. No specific diagnosis was made, and she was discharged with instructions to take fluids and "Tylenol" for pain. In fact, Kaiser had a ruptured appendix for which she underwent surgery and suffered from complications. The patient sued Drs. Dayton and Waite as well as OSU. She alleged that Drs. Dayton and Waite were acting within the scope of their employment with OSU when they treated her. OSU answered admitting that Dr. Dayton was a resident physician employed by OSU and acting within the scope of her employment in treating the patient. OSU admitted that Dr. Waite was a professor of medicine at OSU college of medicine but denied that Dr. Waite was acting within the scope of his employment with OSU when he treated the patient. A hearing was held to determine whether Dr. Waite was entitled to immunity under Ohio law. The Court of Claims rendered a decision on the defendant's motion for summary judgment that Dr. Waite was not acting within the scope of his employment with OSU and, therefore, was not entitled to civil immunity. The defendant appealed.

COURT'S OPINION: The Court of Appeals of Ohio reversed the judgment of the lower court. The court held, inter alia, that Dr. Waite was entitled to immunity. The court found that Dr. Waite's involvement with the patient was minimal and was in a supervisory role. However, the court found Dr. Waite's involvement was essentially in his capacity as an attending physician supervising another physician. The court concluded that Dr. Waite was acting within the scope of his employment with the state hospital and, therefore, entitled to immunity.

LEGAL COMMENTARY: The sole issue before the court was whether the lower court erred in determining that Dr. Waite was not entitled to immunity. The court recognized that the Court of Claims has exclusive, original jurisdiction to determine whether an officer or employee is entitled to personal immunity under Ohio law. An immunity determination involves a question of law. However, consideration of the specific facts is necessary. Judgments supported by competent, credible evidence will not be reversed for being against the manifest weight of the evidence. The Court of Claims found that Dr. Waite was acting outside the scope of his employment with OSU when he treated the patient because, as the attending physician, Dr. Waite made a final decision on whether the patient would be admitted or discharged. In addition, the Court of Claims found the fact that Dr. Waite's practice group, Emergency Care Associates, Incorporated (ECA), billed the patient for Dr. Waite's services, and Dr. Waite's yearly salary from ECA was much greater than his yearly salary from OSU. Both OSU and Dr. Waite asserted that the Court of Claims failed to follow Ohio precedents. Those cases held that when the treatment of a patient is on a fee-for-service basis and where the physician bills the patient through a practice group, the physician is not acting within the scope of state employment. The court found that there is no bright line test in this type of case. The court recognized the key issue in an immunity determination is whether the physician saw the patient only in his or her capacity "as an attending physician supervising residents," or whether the physician saw the patient "as his or her private patient." The court concluded that the physician whom Dr. Waite was supervising was a member of the same practice group as Dr. Waite. The court found this determined the basis of the decision. Dr. Waite did not have sufficient involvement with the patient. The court noted that Dr. Waite saw the patient for a mere four minutes. Essentially, the resident whom Dr. Waite was supervising provided the care and treatment of the patient. The court concluded that since Dr. Waite's involvement with the care of the patient was minimal and tended to be in more of a supervisory role, he was entitled to immunity as an employee of OSU.
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Author:Tammello, A. David
Publication:Medical Law's Regan Report
Geographic Code:1U3OH
Date:Nov 1, 2002
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