Opinion
2022-00739JD
12-08-2023
ARTHUR STANTON, et al. Plaintiffs v. UNIVERSITY OF TOLEDO COLLEGE OF MEDICINE AND LIFE SCIENCES, et al. Defendants
Sent to S.C. Reporter 1/30/24.
DECISION
LISA L. SADLER Judge.
{¶1} On motion for summary judgment, Defendant University of Toledo (UT) seeks a determination that Jonathan Demeter, M.D., is entitled to personal immunity under R.C. 9.86 on grounds that Dr. Demeter was a resident physician employed by the University of Toledo and was acting within the course and scope of that employment at the time that he rendered medical care to Plaintiff Arthur Stanton.
Plaintiffs filed a Complaint against the University of Toledo (UT) and the University of Toledo, College of Medicine and Life Sciences. Defendant University of Toledo, College of Medicine and Life Sciences has not joined in UT's motion for summary judgment.
{¶2} Plaintiffs oppose UT's summary-judgment motion. The matter has been fully briefed and it is ripe for adjudication. For reasons that follow, the Court grants UT's motion for summary judgment.
I. Background
{¶3} Plaintiff Arthur Stanton and Plaintiff Doreen McShane Stanton have brought a complaint sounding in medical negligence and loss of consortium. Plaintiffs allege that, on or about May 4, 2021, Arthur Stanton was a patient at The Toledo Hospital. (Complaint, ¶ 8). Plaintiffs further allege that Dr. Pizza was the admitting physician for Arthur Stanton, that Arthur Stanton was a patient of Dr. Pizza and ProMedica Genito-Urinary Physicians, and that Dr. Pizza admitted Arthur Stanton to The Toledo Hospital for a robotic-assisted laparoscopic simple prostatectomy. (Complaint, ¶ 9.) Plaintiffs assert that Arthur Stanton consented only to Dr. Pizza performing the procedure, that neither Dr. Pizza nor any other person advised Arthur Stanton that a resident physician would be performing the procedure, and that Arthur Stanton never consented to any other physician performing the procedure. (Complaint, ¶ 10.) Plaintiffs maintain that Jonathan Demeter, M.D., a medical resident, performed the robotic-assisted laparoscopic simple prostatectomy on Arthur Stanton without Arthur Stanton's knowledge or consent (Complaint, ¶ 11), and that Dr. Demeter breached the standard of care in his care and treatment of Arthur Stanton. (Complaint, ¶ 14.)
{¶4} In UTs answer, UT has admitted that Jonathan Demeter, M.D. provided care or treatment to Arthur Stanton on or about May 4, 2021, and that Dr. Demeter was an employee "and/or" agent of the University of Toledo College of Medicine and Life Sciences "and/or" the University of Toledo at all times relevant to the Complaint.(Answer, ¶ 2.). UT further admits that, on or about May 4, 2021, Plaintiff Arthur Stanton was a patient at The Toledo Hospital (Answer, ¶ 8), and that Dr. Jonathan Demeter was a fourth-year medical resident at the time of the procedure of May 4, 2022, and that Dr. Demeter acted as the first assistant during the surgery. (Answer, ¶ 11.)
Defendant University of Toledo, College of Medicine and Life Sciences did not join in the Answer filed by Defendant University of Toledo on November 17, 2022.
{¶5} On October 31, 2023, pursuant to Civ.R. 56, R.C. 2743.02(F), and L.C.C.R. 4.1, UT moved for a summary judgment, asking the Court to determine that Jonathan Demeter, M.D., is entitled to personal immunity under R.C. 9.86. UT has supported its summary-judgment motion with exhibits, including an affidavit of Christopher J. Cooper, M.D., Vice Provost for Educational Health Affairs and Dean of the College of Medicine & Life Sciences for The University of Toledo.
{¶6} Plaintiffs oppose UTs summary-judgment motion. Plaintiffs contend that threshold requirements of R.C. 2743.02(F) have not been met, that there is no justiciable controversy before the Court, and that, at best, UT is seeking a declaratory judgment or an advisory opinion, or both, from the Court on the issue of immunity for a non-party.
{¶7} In reply, UT generally maintains that Plaintiffs have not raised any issues of material fact that would make summary judgment inappropriate under Civ.R. 56.
II. Law and Analysis
1. Legal standard for summary judgment.
{¶8} "Trial courts should award summary judgment with caution, being careful to resolve doubts and construe evidence in favor of the nonmoving party." Welco Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346, 617 N.E.2d 1129 (1993), citing Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 604 N.E.2d 138 (1992). A summary judgment, however, "is appropriate where a plaintiff fails to produce evidence supporting the essentials of its claim." Welco Industries, Inc. at 346, citing Wing v. Anchor Media, Ltd. of Texas, 59 Ohio St.3d 108, 570 N.E.2d 1095 (1991), paragraph three of the syllabus.
{¶9} Civ.R. 56(C) "provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made." State ex rel. Grady v. State Emp. Rels. Bd., 78 Ohio St.3d 181, 183, 677 N.E.2d 343 (1997).
{¶10} Under Civ.R. 56 a party who moves for summary judgment "bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). A party who moves for summary judgment "must be able to point to evidentiary materials of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary judgment." Dresher at 292-293. See Civ.R. 56(C).If a moving party "fails to satisfy its initial burden, the motion for summary judgment must be denied." Vahila v. Hall, 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997). See Omega Riggers & Erectors, Inc. v. Koverman, 2016-Ohio-2961, 65 N.E.3d 210, ¶ 69 (2d Dist.) ("unless the movant satisfies its initial burden on a motion for summary judgment, the non-movant has no burden of proof"). But if a party who moves for summary judgment has satisfied its initial burden, then a nonmoving party "has a reciprocal burden outlined in the last sentence of Civ.R. 56(E)." Dresher at 293. See Civ.R. 56(E) ("[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party").
Pursuant to Civ.R. 56(C), summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule." Any evidence that is not specifically listed in Civ.R. 56(C) "is only proper if it is incorporated into an appropriate affidavit under Civ.R. 56(E)." Pollard v. Elber, 2018-Ohio-4538, 123 N.E.3d 359, ¶ 22 (6th Dist.) However, courts "may consider other evidence if there is no objection on this basis." State ex rel. Gilmour Realty, Inc. v. City of Mayfield Hts., 122 Ohio St.3d 260, 2009-Ohio-2871, 910 N.E.2d 455, ¶ 17; Pollard at ¶ 22.
2. Jonathan Demeter, M.D. is statutorily prohibited from being a defendant in an original action before the Court.
{¶11} Under R.C. 2743.02(E) the only defendant in original actions in this Court is the state. R.C. 2743.02(E); see R.C. 2743.01(A) (defining the term "state" as used in R.C. Chapter 2743). Jonathan Demeter, M.D. therefore is statutorily prohibited from being a defendant before the Court in this original action.
Pursuant to R.C. 2743.01(A), the term "state" "means the state of Ohio, including, but not limited to, the general assembly, the supreme court, the offices of all elected state officers, and all departments, boards, offices, commissions, agencies, institutions, and other instrumentalities of the state."
{¶12} Plaintiffs previously informed the Court that Dr. Demeter. is a named defendant in a connected case before the Lucas County Common Pleas Court. (Designation Form filed December 2, 2022.) Defendant, however, represents that Plaintiffs' claims against Dr. Demeter have been dismissed for want of subject matter jurisdiction. (Exhibit A, Reply Memorandum.)
Under Ohio law a dismissal for lack of subject-matter jurisdiction operates as a failure otherwise than on the merits and does not prevent a party from refiling. B.H. v. State Dept. of Adm. Servs., 2017-Ohio-9030, 103 N.E.3d 169, ¶ 6 (10th Dist.). In B.H. the Tenth District Court of Appeals explained,
Civ.R. 41(B)(4)(a) provides that a dismissal for lack of subject-matter jurisdiction "shall operate as a failure otherwise than on the merits." "Ordinarily, a dismissal 'otherwise than on the merits' does not prevent a party from refiling and, therefore, ordinarily, such a dismissal is not a final, appealable order." Natl. City Commercial Capital Corp. v. AAAA at Your Serv., Inc., 114 Ohio St.3d 82, 2007-Ohio-2942, ¶ 8, 868 N.E.2d 663. * * * Dismissal without prejudice generally constitutes an adjudication otherwise than on the merits because it places the parties in the same position they were before they filed the action. Johnson v. H & M Auto Serv., 10th Dist. No. 07AP-123, 2007-Ohio-5794, ¶ 7.B.H. at ¶ 6.
3. This Court has exclusive, original jurisdiction to determine whether a state officer or employee is entitled to personal immunity
{¶13} R.C. 2743.02(F) authorizes this Court to render immunity determinations concerning an officer or state employee's conduct. R.C. 2743.02(F) provides:
A civil action against an officer or employee, as defined in [R.C. 109.36], that alleges that the officer's or employee's conduct was manifestly outside the scope of the officer's or employee's employment or official responsibilities, or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner shall first be filed against the state in the court of claims that has exclusive, original jurisdiction to determine, initially, whether the officer or employee is entitled to personal
immunity under [R.C. 9.86] and whether the courts of common pleas have jurisdiction over the civil action. The officer or employee may participate in the immunity determination proceeding before the court of claims to determine whether the officer or employee is entitled to personal immunity under [R.C. 9.86].
The filing of a claim against an officer or employee under this division tolls the running of the applicable statute of limitations until the court of claims determines whether the officer or employee is entitled to personal immunity under [R.C. 9.86]. See R.C. 9.86 (civil immunity of officers and employees); L.C.C.R. 4.1 (immunity determinations).
R.C. 9.86 provides:
Except 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.This section does not eliminate, limit, or reduce any immunity from civil liability that is conferred upon an officer or employee by any other provision of the Revised Code or by case law. This section does not affect the liability of the state in an action filed against the state in the court of claims pursuant to Chapter 2743. of the Revised Code.
{¶14} Whether, in this instance, Jonathan Demeter, M.D. should be entitled to personal immunity under R.C. 9.86 and whether Ohio courts of common pleas should have jurisdiction over a civil action brought against Dr. Demeter therefore falls within this Court's exclusive, original jurisdiction. See R.C. 2743.02(F); Engel v. Univ. of Toledo College of Medicine, 130 Ohio St.3d 263, 2011-Ohio-3375, 957 N.E.2d 764, ¶ 4.
{¶15} Plaintiffs' contention that at best, UT is seeking a declaratory judgment, or an advisory opinion, is unpersuasive.
4. Legal standard for determining personal immunity.
{¶16} Whether an individual "is entitled to immunity is a question of law." Garvin v. State, 10th Dist. Franklin No. 97API09-1279, 1998 Ohio App. LEXIS 2208, at *7 (May 21, 1998), citing Conley v. Shearer, 64 Ohio St.3d 284, 595 N.E.2d 862 (1992). Determining whether a person is entitled to R.C. 9.86 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 the person claiming immunity is a state officer or employee, the second part of the analysis is to determine whether that person was acting within the scope of employment when the cause of action arose." Engel at ¶ 6, citing Theobald v. Univ. of Cincinnati, 111 Ohio St.3d 541, 2006-Ohio-6208, 857 N.E.2d 573, ¶ 14. Whether an individual "is acting within the course and scope of his employment or is a state employee is a question of fact." Garvin, supra, at *7 (May 21, 1998), citing Tschantz v. Ferguson, 49 Ohio App.3d 9, 550 N.E.2d 544 (10th Dist.1989).
{¶17} With respect to the first prong of the two-part analysis discussed in Engel, supra, the Ohio Supreme Court has "stressed] that in most circumstances a person's status as a state employee is factually indisputable." Engel at ¶ 10. The Ohio Supreme Court has not adopted a formal test to determine whether a person is a state employee, but the Ohio Supreme Court has identified factors that may be helpful: (1) contractual relationship between state and alleged employee, (2) state control over actions of a purported employee, and (3) payment by the state for services of an alleged employee. Engel at ¶ 11-16. The Ohio Supreme Court also directed that this Court should consider whether a person holds a state office or position. See Engel at ¶ 17-20.
{¶18} With respect to the second prong of the two-part analysis discussed in Engel (i.e., whether a person was acting within the scope of employment when the cause of action arose), the Ohio Supreme Court has noted:
The Revised Code does not define "scope of employment." The concept generally denotes an agency relationship in which the agent or employee is engaged in an activity that is logically related to the business of the principal or employer. See Ruckman v. Cubby Drilling, Inc. (1998), 81 Ohio St.3d 117, 120, 1998 Ohio 455, 689 N.E.2d 917; Posin v. A.B.C. Motor Court Hotel, Inc. (1976), 45 Ohio St.2d 271, 278, 74 O.O.2d 427, 344 N.E.2d 334. For purposes of personal immunity under R.C. 9.86, a state employee acts within the scope of employment if the employee's actions are "in furtherance of the interests of the state." Conley v. Shearer (1992),
64 Ohio St.3d 284, 287, 1992 Ohio 133, 595 N.E.2d 862. Thus, a state employee's duties should define the scope of employment.Theobald v. Univ. of Cincinnati, 111 Ohio St.3d 541, 2006-Ohio-6208, 857 N.E.2d 573, ¶ 15. The Ohio Supreme Court has instructed that
the question of scope of employment must turn on what the practitioner's duties are as a state employee and whether the practitioner was engaged in those duties at the time of an injury. Thus, proof of the content of the practitioner's duties is crucial. The Court of Claims must have evidence of those duties before it can be determined whether the actions allegedly causing a patient's injury were "in furtherance of the interests of the state" or, in other words, within the scope of employment.Theobald at ¶ 23.
5. Defendant University of Toledo has sustained its burden to show that, in this instance, Jonathan Demeter, M.D. is entitled to personal immunity.
{¶19} R.C. 2743.02(F) (which authorizes this Court to render immunity determinations) refers to R.C. 109.36's definition of an officer or state employee. Under R.C. 109.36(A)(1)(b), an officer or employee means "[a] person that, at the time a cause of action against the person * * * is rendering medical * * * services pursuant to a personal services contract or purchased service contract with a department, agency, or institution of the state."
{¶20} In UT's answer, UT has admitted that Dr. Demeter provided care or treatment to Arthur Stanton on or about May 4, 2021, and that Dr. Demeter was an employee "and/or" agent of the University of Toledo College of Medicine and Life Sciences "and/or" the University of Toledo at all times relevant to the Complaint. (Answer, ¶ 2.). UT also has admitted that Dr. Jonathan Demeter was a fourth-year medical resident at the time of the procedure of May 4, 2022, and that Dr. Demeter acted as the first assistant during Arthur Stanton's procedure. (Answer, ¶ 11.)
{¶21} The submitted evidence supports UT's admission that, at the time of Arthur Stanton's procedure, Dr. Demeter was UT's employee. Specifically, the submitted evidence shows that UT and Dr. Demeter entered into a Graduate Medical Education Agreement, effective July 1, 2020, through June 30, 2021. (Exhibit A, Affidavit of Christopher J. Cooper, M.D.) Under the Graduate Medical Education Agreement, Dr. Demeter was required to "[p]rovide safe, effective and compassionate patient care and present at all times a courteous and respectful attitude toward all patients, colleagues, employees, and visitors of the Participating Sites" to which he was assigned and "[p]rovide clinical services commensurate with [his] level of training under appropriate supervision as approved by the Program in circumstances and at locations included in the Program covered by the University's professional liability insurance policies maintained on behalf of [him]." (Id.) In an affidavit Dr. Cooper has averred that "GME [Graduate Medical Education] training programs of UToledo occur at various community hospital sites, including but not limited to The Toledo Hospital, which is part of the ProMedica Heath System, Inc., located in Toledo, Ohio." (Dr. Cooper's Affidavit, at paragraph 4; Exhibit B to Dr. Cooper's Affidavit.)
{¶22} Under UT's agreement with Dr. Demeter, UT agreed to provide, among other things, a monetary stipend and University benefits to Dr. Demeter as set forth in Section V of the parties' Agreement and use its best efforts with available resources, to provide an educational training program that met requirements of the Accreditation Council for Graduate Medical Education. And under the agreement, UT had authority to take whatever corrective action against Dr. Demeter it believed was reasonable and appropriate under the circumstances to remediate disciplinary problems, academic or non-academic deficiencies, including but not limited to a written reprimand, extension of or additional training, probation, reassignment, temporary or permanent suspension, termination or non-reappointment. (Id.)
{¶23} After the evidence is construed in favor of Plaintiffs, as required by Civ.R. 56(C), reasonable minds would conclude that UT and Dr. Demeter had a contractual relationship, that UT had control over Dr. Demeter's actions, and that UT agreed to pay Dr. Demeter for his services. Reasonable minds therefore can come to one conclusion- namely, that Dr. Demeter was a state employee for the purpose of determining his personal immunity under R.C. 2743.02(F).
{¶24} After the evidence is construed in Plaintiffs' favor, reasonable minds also can come to one conclusion, namely, that Dr. Demeter's actions were in furtherance of the interests of UT, which operated a Graduate Medical Education Program with the cooperation of the University of Toledo Medical Center, certain associated hospitals, and other health care institutions to further its objectives in the education and training of health care professionals. (Exhibit A, Affidavit of Christopher J. Cooper, M.D.)
{¶25} It follows therefore that Dr. Demeter is, as a matter of law, entitled to personal immunity under R.C. 9.86 arising out of Dr. Demeter's care and treatment of Arthur Stanton that is the basis for the action that is now before this Court. It further follows that Ohio courts of common pleas do not have jurisdiction over civil actions against Dr. Demeter arising out of Dr. Demeter's care and treatment of Arthur Stanton that is the basis for the action that is now before this Court.
III. Conclusion
{¶26} For reasons set forth above, the Court grants UT's motion for summary judgment. The Court holds that Jonathan Demeter M.D is entitled to personal immunity under R.C. 9.86 arising out of Dr. Demeter's care and treatment of Arthur Stanton that is the basis for the action that is now before this Court. The Court further holds that Ohio courts of common pleas do not have jurisdiction over civil actions against Dr. Demeter arising out of Dr. Demeter's care and treatment of Arthur Stanton that is the basis for the action that is now before this Court.
JUDGMENT ENTRY
{¶27} For reasons set forth in the Decision filed concurrently herewith, the Court GRANTS the summary-judgment motion filed by Defendant University of Toledo on October 31, 2023. Jonathan Demeter M.D is entitled to personal immunity under R.C. 9.86 arising out of Dr. Demeter's care and treatment of Plaintiff Arthur Stanton that is the basis for the action that is now before this Court. The Court further holds that Ohio courts of common pleas do not have jurisdiction over civil actions against Dr. Demeter arising out of Dr. Demeter's care and treatment of Arthur Stanton that is the basis for the action that is now before this Court.