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Kaiser v. Ohio State University11/5/2002
. On July 2, 2000, Kathleen J. Kaiser filed a complaint in the Court of Claims of Ohio against The Ohio State University ("OSU"). In her complaint, Ms. Kaiser averred that on January 27, 1999, she was transported to the emergency department of the OSU Medical Center. She had a history of four days of lower abdominal pain, vomiting and diarrhea. Ms. Kaiser was seen by Michelle Dayton, M.D., a resident, and Michael Waite, M.D., the attending physician. The complaint further averred that a urinalysis was conducted, no specific diagnosis was given, and Ms. Kaiser was discharged with instructions to take fluids and take "Tylenol" for pain.
. The complaint set forth a claim for medical malpractice, alleging that Drs. Waite and Dayton failed to diagnose Ms. Kaiser's condition as a ruptured appendix and that as a result of such failure, Ms. Kaiser did not undergo surgery for such condition until February 4, 1999 and suffered various complications. Ms. Kaiser asserted that Drs. Dayton and Waite were acting within the scope of their employment with OSU during their care and treatment of her.
. OSU answered, admitting that Dr. Dayton was a resident physician employed by OSU and acting within the scope of her employment with OSU during her treatment of Ms. Kaiser. OSU admitted that Dr. Waite was a professor of medicine at OSU College of Medicine but denied that Dr. Waite was within the scope of his employment with OSU when he treated Ms. Kaiser.
. An evidentiary hearing was held to determine whether Dr. Waite was entitled to immunity pursuant to R.C. 9.86 and 2743.02(F). The parties filed briefs. On February 13, 2002, the Court of Claims rendered a decision and judgment entry. The Court of Claims determined that Dr. Waite was not acting within the scope of his employment with OSU and, therefore, was not entitled to civil immunity. The decision included Civ.R. 54(B) language that there was no just cause for delay.
. Ms. Kaiser (hereinafter "appellant") has appealed to this court, assigning the following error for our consideration:
. "I. THE LOWER COURT ERRED IN FINDING THAT AN EMERGENCY ROOM PHYSICIAN (DR. WAITE) WAS NOT ENTITLED TO IMMUNITY, DESPITE SEEING THE PATIENT ONLY IN THE CAPACITY AS A SUPERVISOR FOR A RESIDENT WHO WAS THE PRIMARY CARE PROVIDER."
. This court has granted Dr. Waite leave to file an amicus brief.
. The sole issue before this court is whether the Court of Claims erred in determining that Dr. Waite was not entitled to immunity pursuant to R.C. 9.86 and 2743.02(F). R.C. 9.86 states, in pertinent part:
. "* * * o 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 * * *."
. Under R.C. 109.36(A), an "officer" or "employee" includes a person who, at the time the cause of action arises, is rendering medical services pursuant to a personal services contract or purchased service contract with the state. R.C. 2743.02(F) provides that the Court of Claims has the exclusive, original jurisdiction to determine whether an officer or employee is entitled to personal immunity under R.C. 9.86.
. An immunity determination involves a question of law. Nease v. Medical College Hosp. (1992), 64 Ohio St.3d 396, 400, citing Conely v. Shearer (1992), 64 Ohio St.3d 284. However, consideration of the specific facts is necessary, and judgments supported by some competent, credible evidence will not be reversed as being against the manifest weight of t
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