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Vanderpool v. University Hospital9/27/2002
DECISION.
Please note: We have sua sponte removed this case from the accelerated calendar.
Plaintiffs-appellants Jackie Vanderpool and her minor children appeal the trial court's entry of summary judgment in favor of defendants-appellees University Hospital, Inc., and the Foundation of Obstetrics and Gynecology, Inc. The issue presented for our review is whether the defendants should have been held vicariously liable for the alleged negligence of Dr. Duma, a state employee, who was the attending physician during Vanderpool's surgery. Holding that Dr. Duma was University Hospital's agent by estoppel and holding that there remain genuine issues of material fact as to whether Dr. Duma was acting within the scope of his employment with the Foundation when supervising Vanderpool's surgery, we reverse the judgment of the trial court.
Jackie Vanderpool had been a patient at the Obstetrics and Gynecology outpatient clinic ("the clinic") operated by University Hospital, Inc. ("the hospital"), a private corporation, since early 1996. Resident physicians managed the clinic and treated patients under the supervision of faculty from the OB-GYN department at the University of Cincinnati's College of Medicine ("the university"). The university assigned faculty physicians to supervise the clinic on a rotating basis. Despite the university's supervisory role, the residents at the clinic, as well as the administrative staff, were employees of the hospital. There were no signs posted at the clinic to inform patients that residents staffed the clinic. Although the residents' badges stated "University Hospital, Resident, OB/GYN, Dr. * * *," Vanderpool testified that she had never examined a badge and did not realize that the doctors treating her were residents, supervised by faculty doctors who were unaffiliated with the hospital.
While a patient at the clinic, Vanderpool saw several different doctors for her chronic pelvic pain. Eventually it was determined that Vanderpool would need laproscopic surgery to remove an ovarian cyst. Dr. Porter, the resident who preoperatively assessed Vanderpool, submitted the surgical plan for approval to Dr. Duma, the faculty doctor assigned to the clinic that day. Dr. Duma approved the plan.
Dr. Porter informed Vanderpool that either Dr. Duma or Dr. Huppert would be participating in her surgery. The surgical consent form signed by Vanderpool stated that "Dr. Rebar et al." would perform the surgery. Dr. Rebar was the chairperson of the university's OB-GYN department. On the day of surgery, Dr. Johnson, a clinic resident, informed Vanderpool that Dr. Huppert would be leading the surgical team. Dr. Huppert, a faculty doctor, was assigned to supervise surgeries that day.
Dr. Johnson and another resident, Dr. Arovas, participated in Vanderpool's surgery on May 21, 1999. During surgery, Dr. Huppert had to leave, so Dr. Duma was called in to finish the procedure. While Dr. Duma was supervising the procedure, Vanderpool's ureter was cut and damaged. It was only after the surgery that Vanderpool learned of Dr. Duma's participation. Vanderpool had never met Dr. Duma, and Dr. Duma's only contact with Vanderpool was during the surgery. Dr. Duma testified that he had never treated Vanderpool as a private patient.
The Foundation of Obstetrics and Gynecology, Inc., ("FOG") was the practice corporation for the faculty members of the university's OB-GYN department. The purpose of FOG was to provide support services "to the [faculty] physicians so that they c[ould] continue the practice of medicine." Because the university did not bill patients seen by its faculty members, FOG was responsible for the billing of clin
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