Tyack, Judge.
Claude E. Smith was an inmate under the control of the Ohio Department of Rehabilitation and Correction. Apparently, as the result of confusing Smith with another inmate with a similar name, unnecessary surgery was performed on Smith. As a result, Smith filed a lawsuit.
The Ohio Department of Rehabilitation and Correction has a contract with the Ohio State University Hospitals (“University Hospitals”). University Hospitals in turn has a contract with a variety of corporations to provide the medical services to the inmates. The corporation then employs the physicians and other medical providers.
Jeffrey York, M.D., performed the surgery on Claude E. Smith. The Ohio Court of Claims had the responsibility to determine whether York was an employee of the state of Ohio at the time he provided medical care to Smith and whether York was entitled to at least some immunity under the provisions of R.C. 9.86. The Ohio Court of Claims found that York was entitled to immunity.
Both Smith and University Hospitals have appealed from the trial court’s finding. Smith has assigned two errors for our consideration:
“Assignment of Error No. 1
“The Court of Claims erred in finding that Dr. York was entitled to immunity because he was an employee of the state at the time of the alleged malpractice.
“Assignment of Error No. 2
“The Court of Claims erred in concluding that Dr. York did not act with malicious purpose, in bad faith, or in a wanton or reckless manner by completely failing to consider whether Dr. York withheld from appellant after his operation the true facts regarding appellant’s medical condition, or lack thereof, as alleged by appellant in count two of his amended complaint.”
University Hospitals has assigned a single error:
“The Court of Claims erred in finding that Jeffrey York, M.D. was acting as an ‘employee’ of the state, as defined by R.C. 109.36 while performing surgery on Claude E. Smith. Pursuant to App.R. 16(A)(3), Appellant Ohio State University Hospitals contends that this error is set forth in the Decision entered by the Ohio Court of Claims on July 26,1995, and in the Judgment Entry entered by the Ohio Court of Claims on July 26,1995.”
Because Smith’s first assignment of error and University Hospitals’ sole assignment of error present the same issue, the two assignments of error will be addressed together.
R.C. 2743.02(A)(2) provides:
“If a claimant proves in the court of claims that an officer or employee,
as defined in section 109.36 of the Revised Code,
would have personal liability for'his acts or omissions but for the fact that the officer or employee has personal immunity under section 9.86 of the Revised Code, the state shall be held liable in the court of claims in any action that is timely filed pursuant to section 2743.16 of the Revised Code and that is based upon the acts or omissions.” (Emphasis added.)
R.C. 109.36 currently defines an officer or employee as follows:
“(A) ‘Officer or employee’ means any person who, at the time a cause of action against him arises, * * * is employed by the state or
any person that, at the time a cause of action against the person, partnership, or corporation arises,
is rendering medical * * * services pursuant to a personal services contract
or purchased service contract
with a department, agency, or institution of the state * * *.” (Emphasis added.)
Thus, pursuant to R.C. 109.36, 9.86 and 2743.02, a person has personal immunity if he or she is an employee as defined by R.C. 109.36 and if his or her actions are within the scope of employment with the state.
R.C. 109.36 was amended in October 1994, after the surgery on Smith took place. Thus, this court must initially determine whether the version of R.C.
109.36 in effect at the time of the surgery should be utilized or whether the current statute should be applied in deciding whether appellee was an employee of Ohio. We find that the prior version of R.C. 109.36 is the appropriate version to be applied in this case.
R.C. 1.48 provides that a “statute is presumed to be prospective in its operation unless expressly made retrospective.” Since R.C. 109.36, as amended, does not expressly state that it is to be applied retroactively, we must apply the prior version of R.C. 109.36.
We note that the trial court found that York was entitled to immunity under either version of the statute. However, for purposes of this opinion, we will focus on the language of the prior version of R.C. 109.36, which stated that:
“ ‘Officer or employee’ means any person who, at the time a cause of action against him arises, * * * is employed by the state or * * * is rendering medical * * * services pursuant to a personal services contract * * * with a department, agency, or institution of the state. * * * ”
The crucial issue becomes whether York was rendering medical services pursuant to a personal services contract. If York was not rendering services pursuant to a personal services contract, then he was not an employee of University Hospitals.
This issue is not simply resolved. The corporation which employed York is the Department of Surgery Corporation (“DSC”). DSC is a professional corporation comprising all the members of the faculty of the Department of Surgery in the College of Medicine at the Ohio State University. York was both an employee and a shareholder of DSC. He testified that he was required to be both an employee and a shareholder of DSC in order to be accepted for his other employment, that of an assistant professor of urology/surgery at the Ohio State University. Thus, the relationship between University Hospitals and DSC did not keep the entities at arm’s length. However, the contract between University Hospitals and DSC which resulted in the medical care for Smith did not dictate which of the various doctors affiliated with DSC would provide the care. University Hospitals simply paid a lump sum of approximately $900,000 a year and DSC then made the specific arrangements.
The phrase “personal services contract” is not defined by statute. The case law interpreting the phrase is sparse. In
Yellow Cab of Cleveland, Inc. v. Greater Cleveland Regional Transit Auth.
(1991), 72 Ohio App.3d 558, 595 N.E.2d 508, the phrase was analyzed in the context of bidding requirements for purposes of R.C. 306.43. In the
Yellow Cab
case, the Eighth District Court of Appeals found that a personal services contract is a contract “in which the offeree is vested with discretion in accomplishing the assigned tasks because his skills,
knowledge, experience and expertise are unique to the area and could not be duplicated by others not similarly qualified.”
Id.
at 563, 595 N.E.2d at 511. Under this definition, all the traditional professions would apparently be automatically involved in personal services contracts.
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Tyack, Judge.
Claude E. Smith was an inmate under the control of the Ohio Department of Rehabilitation and Correction. Apparently, as the result of confusing Smith with another inmate with a similar name, unnecessary surgery was performed on Smith. As a result, Smith filed a lawsuit.
The Ohio Department of Rehabilitation and Correction has a contract with the Ohio State University Hospitals (“University Hospitals”). University Hospitals in turn has a contract with a variety of corporations to provide the medical services to the inmates. The corporation then employs the physicians and other medical providers.
Jeffrey York, M.D., performed the surgery on Claude E. Smith. The Ohio Court of Claims had the responsibility to determine whether York was an employee of the state of Ohio at the time he provided medical care to Smith and whether York was entitled to at least some immunity under the provisions of R.C. 9.86. The Ohio Court of Claims found that York was entitled to immunity.
Both Smith and University Hospitals have appealed from the trial court’s finding. Smith has assigned two errors for our consideration:
“Assignment of Error No. 1
“The Court of Claims erred in finding that Dr. York was entitled to immunity because he was an employee of the state at the time of the alleged malpractice.
“Assignment of Error No. 2
“The Court of Claims erred in concluding that Dr. York did not act with malicious purpose, in bad faith, or in a wanton or reckless manner by completely failing to consider whether Dr. York withheld from appellant after his operation the true facts regarding appellant’s medical condition, or lack thereof, as alleged by appellant in count two of his amended complaint.”
University Hospitals has assigned a single error:
“The Court of Claims erred in finding that Jeffrey York, M.D. was acting as an ‘employee’ of the state, as defined by R.C. 109.36 while performing surgery on Claude E. Smith. Pursuant to App.R. 16(A)(3), Appellant Ohio State University Hospitals contends that this error is set forth in the Decision entered by the Ohio Court of Claims on July 26,1995, and in the Judgment Entry entered by the Ohio Court of Claims on July 26,1995.”
Because Smith’s first assignment of error and University Hospitals’ sole assignment of error present the same issue, the two assignments of error will be addressed together.
R.C. 2743.02(A)(2) provides:
“If a claimant proves in the court of claims that an officer or employee,
as defined in section 109.36 of the Revised Code,
would have personal liability for'his acts or omissions but for the fact that the officer or employee has personal immunity under section 9.86 of the Revised Code, the state shall be held liable in the court of claims in any action that is timely filed pursuant to section 2743.16 of the Revised Code and that is based upon the acts or omissions.” (Emphasis added.)
R.C. 109.36 currently defines an officer or employee as follows:
“(A) ‘Officer or employee’ means any person who, at the time a cause of action against him arises, * * * is employed by the state or
any person that, at the time a cause of action against the person, partnership, or corporation arises,
is rendering medical * * * services pursuant to a personal services contract
or purchased service contract
with a department, agency, or institution of the state * * *.” (Emphasis added.)
Thus, pursuant to R.C. 109.36, 9.86 and 2743.02, a person has personal immunity if he or she is an employee as defined by R.C. 109.36 and if his or her actions are within the scope of employment with the state.
R.C. 109.36 was amended in October 1994, after the surgery on Smith took place. Thus, this court must initially determine whether the version of R.C.
109.36 in effect at the time of the surgery should be utilized or whether the current statute should be applied in deciding whether appellee was an employee of Ohio. We find that the prior version of R.C. 109.36 is the appropriate version to be applied in this case.
R.C. 1.48 provides that a “statute is presumed to be prospective in its operation unless expressly made retrospective.” Since R.C. 109.36, as amended, does not expressly state that it is to be applied retroactively, we must apply the prior version of R.C. 109.36.
We note that the trial court found that York was entitled to immunity under either version of the statute. However, for purposes of this opinion, we will focus on the language of the prior version of R.C. 109.36, which stated that:
“ ‘Officer or employee’ means any person who, at the time a cause of action against him arises, * * * is employed by the state or * * * is rendering medical * * * services pursuant to a personal services contract * * * with a department, agency, or institution of the state. * * * ”
The crucial issue becomes whether York was rendering medical services pursuant to a personal services contract. If York was not rendering services pursuant to a personal services contract, then he was not an employee of University Hospitals.
This issue is not simply resolved. The corporation which employed York is the Department of Surgery Corporation (“DSC”). DSC is a professional corporation comprising all the members of the faculty of the Department of Surgery in the College of Medicine at the Ohio State University. York was both an employee and a shareholder of DSC. He testified that he was required to be both an employee and a shareholder of DSC in order to be accepted for his other employment, that of an assistant professor of urology/surgery at the Ohio State University. Thus, the relationship between University Hospitals and DSC did not keep the entities at arm’s length. However, the contract between University Hospitals and DSC which resulted in the medical care for Smith did not dictate which of the various doctors affiliated with DSC would provide the care. University Hospitals simply paid a lump sum of approximately $900,000 a year and DSC then made the specific arrangements.
The phrase “personal services contract” is not defined by statute. The case law interpreting the phrase is sparse. In
Yellow Cab of Cleveland, Inc. v. Greater Cleveland Regional Transit Auth.
(1991), 72 Ohio App.3d 558, 595 N.E.2d 508, the phrase was analyzed in the context of bidding requirements for purposes of R.C. 306.43. In the
Yellow Cab
case, the Eighth District Court of Appeals found that a personal services contract is a contract “in which the offeree is vested with discretion in accomplishing the assigned tasks because his skills,
knowledge, experience and expertise are unique to the area and could not be duplicated by others not similarly qualified.”
Id.
at 563, 595 N.E.2d at 511. Under this definition, all the traditional professions would apparently be automatically involved in personal services contracts. However, the era of health maintenance organizations (“HMOs”), preferred provider organizations (“PPOs”) and similar organizations for providing health care function on a very different rationale, namely, that physicians are interchangeable with little or no effect on the quality of service.
Reduced to its essence, a personal services contract suggests a degree of control exercised by the purchaser over the services to be performed by a chosen individual or individuals; a purchased services contract indicates, as the name implies, a purchase of services without regard to the specific individual to provide the service.
Under the facts of this case, York was not functioning under a personal services contract with a department, agency or institution of the state, and was not a state employee as defined by R.C. 109.36. His services to Smith were the result of his employment with DSC, and DSC was not shown in the trial court to be a department, agency or institution of the state. If he had a personal services contract with anyone, the contract was with DSC. York was not therefore entitled to immunity.
We sustain the sole assignment of error of University Hospitals and the first assignment of error of Smith.
In light of our previous finding as to immunity, we need not address Smith’s second assignment of error. That assignment of error is moot.
As a result of the foregoing, we reverse the judgment of the Ohio Court of Claims as to immunity for York. We remand the case to enter a finding that York is not immune and for further appropriate proceedings.
Judgment reversed and cause remanded.
Peggy Bkyant, J., concurs.
John C. Young, J., dissents.