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.

Posted by Paul Pfeifer on Apr 11 2012. You can follow any responses to this entry through the RSS Feed. Both comments and pings are currently closed.