Immunity from Medical Malpractice
Immunity from Medical Malpractice
By Justice Paul E. Pfeifer
When Larry Engel Jr. went into the hospital for a vasectomy, he never envisioned that he would find himself involved in a lawsuit that would eventually end up coming before us – the Ohio Supreme Court.
The history of this case begins with Dr. Mark Skoskiewicz, who practices general surgery at Henry County Hospital in Napoleon, Ohio. Since 1995, Dr. Skoskiewicz has also been a volunteer clinical faculty member of the University of Toledo College of Medicine. The Henry County Hospital is a private organization and isn’t affiliated with the College of Medicine.
In January 2005, while a third-year medical student from the College of Medicine was observing, Dr. Skoskiewicz performed two vasectomy surgeries on Mr. Engle, on separate days. Both of these procedures occurred at the Henry County Hospital. Allegedly due to negligence during the first and second surgeries, a third surgery, to remove Mr. Engel’s necrotic right testicle, was performed.
In May 2006, Mr. Engel filed a medical-malpractice suit against Dr. Skoskiewicz. In response, Dr. Skoskiewicz asserted that he was entitled to personal immunity under Ohio law because, at the time of the surgeries, he was acting in the capacity as a volunteer clinical instructor for the college and was therefore an officer or employee of the state.
In making this claim, Dr. Skoskiewicz was leaning on an Ohio law which says that – except for civil suits that arise out of the operation of a motor vehicle – no officer or employee of the state shall be liable in any civil action that arises for damage or injury caused in the performance of his duties.
Accordingly, Mr. Engel filed an action against the College of Medicine. In his complaint, Mr. Engel sought a determination whether Dr. Skoskiewicz was entitled to personal immunity as a state employee.
The Court of Claims concluded that Dr. Skoskiewicz had “performed the operations as a state employee” and that, therefore, he was entitled to personal immunity. The court of appeals affirmed that decision. After that, Mr. Engel’s case came before us for a final review.
In a similar case from 2006, our court stated that determining whether a person is entitled to immunity requires a two-part analysis, the first part of which is to determine whether the person claiming immunity is a state officer or employee. If that answer is no, the second part – which determines whether that person was acting within the scope of employment when the injury or accident arose – is unnecessary.
So, was Dr. Skoskiewicz an officer or employee of the state under the definition of the law? The College of Medicine argued that he was not an employee because he did not have a contractual relationship with the college.
The only possible evidence that such a contractual relationship did exist are two letters from the College of Medicine, one from 1995 and one from 2005, confirming Dr. Skoskiewicz’s status as a volunteer clinical instructor. But the letters do not show that Dr. Skoskiewicz was hired, appointed, or credentialed by the College of Medicine.
Indeed, both the college and Dr. Skoskiewicz stipulated that he practiced general surgery at Henry County Hospital. At all times relevant to this case, Dr. Skoskiewicz was treating a private patient at a private hospital.
The College of Medicine also argued that Dr. Skoskiewicz was not a state employee because the college did not exercise control over his medical practice. That argument was based on “the logical principle that where the state lacks the ability to control a physician’s actions it makes no sense to extend immunity to him.”
When the court of appeals held that Dr. Skoskiewicz was serving in an appointed position with the state, it relied on the letter from the college confirming Dr. Skoskiewicz’s “appointment” to the volunteer faculty. But that letter did not demonstrate that the college exercised – or intended to exercise – the type of control over Dr. Skoskiewicz’s practice of medicine that would justify a holding that the doctor was at any time a state employee. We therefore determined that the College of Medicine did not control Dr. Skoskiewicz.
Finally, the College of Medicine argued that Dr. Skoskiewicz was not a state employee because he was not paid by the state for his services. Based on the record that was before us, we concluded that there was no contract of employment between the college and Dr. Skoskiewicz.
We also had to determine if Dr. Skoskiewicz was serving in an “appointed office or position with the state.” The two previously mentioned letters he received from the College of Medicine state that the college had approved his “appointment” to the volunteer faculty at the rank of clinical assistant professor. But the word “appointment” does not indicate that he held an “office or position with the state.”
His duties were not of a level consistent with those of a public office. The appointment did not entitle Dr. Skoskiewicz to office space, staff, or authority at the College of Medicine. It did not enable him to lecture or teach a class at the college. It did not allow him to conduct university-sponsored research. It did not allow him to practice at the university clinic, and it did not entitle him to payment from the college
In truth, based on the record that was before us, the appointment did not enable Dr. Skoskiewicz to do anything except allow students to “rotate through his practice as a part of one-month clerkships.”
It’s important to note that Dr. Skoskiewicz and the many other volunteer clinical faculty in Ohio provide an important service. But that service, however commendable, does not transform the volunteers behind it into an arm of the state.
By a seven-to-zero vote we concluded that Dr. Skoskiewicz was not a state employee and did not hold an appointed office or position with the state. Accordingly, he is not entitled to personal immunity. We therefore reversed the court of appeals and sent the case back to the trial court for further proceedings consistent with our opinion.
EDITOR’S NOTE: The case referred to is: Engel v. Univ. of Toledo College of Medicine, 130 Ohio St.3d 263, 2011-Ohio-3375. Case No. 2009–1735. Decided July 13, 2011. Majority opinion written by Justice Paul E. Pfeifer.