Engel v. University of Toledo College of Medicine

922 N.E.2d 244, 184 Ohio App. 3d 669
CourtOhio Court of Appeals
DecidedAugust 11, 2009
DocketNo. 09AP-53
StatusPublished
Cited by5 cases

This text of 922 N.E.2d 244 (Engel v. University of Toledo College of Medicine) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Engel v. University of Toledo College of Medicine, 922 N.E.2d 244, 184 Ohio App. 3d 669 (Ohio Ct. App. 2009).

Opinion

Klatt, Judge.

{¶ 1} Defendant-appellant, the University of Toledo College of Medicine (“UT”), appeals from a judgment of the Court of Claims of Ohio finding Marek Skoskiewicz, M.D., personally immune from the medical-malpractice claims of plaintiff-appellee, Larry Engel Jr. For the following reasons, we affirm.

{¶ 2} Engel originally filed his medical-malpractice action against Skoskiewicz in the Henry County Court of Common Pleas. According to Engel’s complaint, Skoskiewicz negligently performed two separate surgical procedures on Engel in January 2005, proximately causing Engel pain, additional medical bills, lost wages, and emotional distress. As trial neared, Skoskiewicz filed a motion to dismiss or, in the alternative, for a stay in the proceedings. In his motion, Skoskiewicz claimed personal immunity under R.C. 9.86, which exempts state officers and employees from liability in any civil action arising under state law for damage or injury caused in the performance of the officer’s or employee’s duties, unless the officer or employee acted manifestly outside the scope of his employ[671]*671ment or official responsibilities, or with malicious purpose, in bad faith, or in a wanton or reckless manner. Because only the Court of Claims can determine whether a state officer or employee is immune under R.C. 9.86, Skoskiewicz argued that the common pleas court lacked subject-matter jurisdiction to proceed. The court agreed and granted Skoskiewicz a stay pending the outcome of the Court of Claim’s immunity determination.

{¶ 3} Following the common pleas court’s ruling, Engel filed a medical-malpractice action against UT in the Court of Claims and reiterated the claims he initially asserted in the common pleas court. As part of his complaint, Engel requested that the Court of Claims determine whether Skoskiewicz was entitled to immunity. Ultimately, the Court of Claims agreed to decide the issue of Skoskiewicz’s immunity based upon a joint stipulation of facts and the parties’ briefs.

{¶ 4} The parties stipulated that the UT1 Board of Trustees appointed Skoskiewicz as a clinical assistant professor of surgery on December 13, 2004. The appointment made Skoskiewicz a volunteer faculty member, not a regular faculty member. As a volunteer faculty member, Skoskiewicz did not receive a salary from UT. Nevertheless, Skoskiewicz was subject to the UT Faculty Rules and Regulations, as well as UT policies and procedures.

{¶ 5} The UT Board of Trustees made the volunteer faculty appointment so Skoskiewicz could act as a preceptor for third-year UT students. Bryan/MCO Area Health Education Center, Inc. (“BAHEC”), a nonprofit corporation affiliated with UT, arranged for UT students to observe and assist local practitioners, and Skoskiewicz agreed to become an instructor in this apprenticeship program. BAHEC assigned UT student David Essig to Skoskiewicz so Essig could complete his required clinical rotation in surgery. Essig was present in the operating room while Skoskiewicz performed the two surgical procedures on Engel.

{¶ 6} Based upon these facts, the Court of Claims found that Skoskiewicz’s appointment as a clinical assistant professor of surgery made him a state “officer or employee” as defined in R.C. 109.36(A)(1)(a). Additionally, the court found that Skoskiewicz was acting in the scope of his position when he performed the two surgical procedures at issue. Accordingly, in a December 18, 2008 judgment entry, the Court of Claims determined that Skoskiewicz was personally immune from Engel’s claims pursuant to R.C. 9.86.

{¶ 7} UT now appeals from the December 18, 2008 judgment and assigns the following error:

[672]*672The Court of Claims erred in holding that a physician who is a volunteer clinical faculty member of a state medical school is an “officer or employee” of the state as that term is defined in R.C. 109.36, and so is entitled to immunity from civil liability for medical negligence under R.C. 9.86.

{¶ 8} By its sole assignment of error, UT argues that Skoskiewicz is not entitled to personal immunity, because he is not a state officer or employee. We disagree.

{¶ 9} Pursuant to R.C. 9.86,

[ejxcept for civil actions that arise out of the operation of a motor vehicle and civil actions in which the state is the plaintiff, no officer or employee 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.

Generally, under this statute, a state officer or employee who acts in the performance of his or her duties is immune from liability. Wassenaar v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 07AP-712, 2008-Ohio-1220, 2008 WL 713932, ¶ 25. Whether a person is entitled to personal immunity is a question of law. Theobald v. Univ. of Cincinnati, 111 Ohio St.3d 541, 2006-Ohio-6208, 857 N.E.2d 573, ¶ 14.

{¶ 10} For the purposes of R.C. 9.86, “officer or employee” is defined by R.C. 109.36(A). R.C. 2743.02(A)(2) and (F). R.C. 109.36(A)(1)(a) defines “officer or employee” to mean “[a] person who, at the time a cause of action against the person arises, is serving in an elected or appointed office or position with the state or is employed by the state.” Engel argues that Skoskiewicz satisfies this definition because, at the time of the alleged malpractice, he was serving in an “appointed * * * position with the state.” Supporting Engel’s argument, the March 18, 2005 letter from UT to Skoskiewicz informed him that the UT Board of Trustees had “approved [his] appointment to the volunteer faculty at its meeting December 13, 2004 as * * * Clinical Assistant Professor * * * Surgery.” (Emphasis added.) Thus, Skoskiewicz was appointed to his position as a clinical assistant professor of surgery. Additionally, UT is a state institution, created and authorized by the General Assembly. R.C. 3350.01, repealed by Sub.H.B. No. 478, effective July 1, 2006 (“There is hereby created the medical university of Ohio at Toledo”); R.C. 3364.01(A) (combining the former Medical University of Ohio with the University of Toledo, both “authorized” under former provisions of the Revised Code). Thus, Skoskiewicz’s position was “with the state.” As Skoskiewicz was serving in an appointed position with the state at the time he [673]*673allegedly committed malpractice, we conclude that he meets the statutory definition of “officer or employee.”

{¶ 11} In arguing that Skoskiewicz is not a state “officer or employee,” UT primarily focuses on the portion of R.C. 109.36(A)(1)(a) that defines an “officer or employee” as a person who “is employed by the state.” However, the use of the disjunctive “or” between the two portions of the subsection indicates that each portion sets forth a separate and distinct definition of “officer or employee.” Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 20, quoting Pizza v. Sunset Fireworks Co., Inc. (1986), 25 Ohio St.3d 1, 4-5, 25 OBR 1,

Related

Poe v. Univ. of Cincinnati
2013 Ohio 5451 (Ohio Court of Appeals, 2013)
Abraham v. State
2011 Ohio 7005 (Ohio Court of Claims, 2011)
Engel v. University of Toledo College of Medicine
2011 Ohio 3375 (Ohio Supreme Court, 2011)
Engel v. Univ. of Toledo College of Medicine
932 N.E.2d 334 (Ohio Supreme Court, 2010)

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Bluebook (online)
922 N.E.2d 244, 184 Ohio App. 3d 669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/engel-v-university-of-toledo-college-of-medicine-ohioctapp-2009.