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Theobald v. University of Cincinnati3/31/2005
e unimportance of the financial factors and focused instead upon the education factor. Recognizing that the financial aspects of each case remained virtually the same, we concluded that "it was the facts surrounding the actual treatment of the patient which served as the critical basis" for determining whether the practitioner was outside of the scope of employment. Id. at . Thus, whether a practitioner was acting outside the scope of his employment was dependent upon the degree to which the practitioner took care of the patient independently of his duties as a practitioner supervising the work of a resident. Id. at .
{ } As the above discussion demonstrates, since Ferguson, this court has implicitly and explicitly retreated from applying the financial factors as determinative factors and, instead, the outcome of each case essentially has turned upon the education factor. Therefore, we conclude that although the financial factors may be relevant to determine whether a practitioner is an employee of the state, the financial factors generally have little bearing upon whether a practitioner is acting within the scope of his employment. Instead, to determine whether a practitioner is acting within the scope of employment, the Court of Claims must primarily inquire whether the practitioner was educating a student or resident while rendering the allegedly negligent care to the patient.
If the practitioner was educating a student or resident, then the practitioner was acting within the scope of his employment and, thus, is immune from liability.
{ } Making the education of students and residents the primary factor is consistent with the general definition of "scope of employment." As reflected by testimony, employment contracts, letters of appointment, and other evidence, the "master's business" in these cases is the education of students and residents in a real-world setting. Therefore, any time a clinical faculty member furthers a student or resident's education, he promotes the state's interest. Because the state's interest is promoted no matter how the education of the student or resident occurs, a practitioner is acting within the scope of his employment if he educates a student or resident by direct instruction, demonstration, supervision, or simple involvement of the student or resident in the patient's care.
{ } Accordingly, in order to determine whether a practitioner is acting within the scope of his employment, the Court of Claims must first identify the aspect of the course of treatment that the plaintiff alleges gave rise to damage or injury . Then, if education is the university's interest, the Court of Claims must determine whether a student or resident was somehow involved with the patient's care during that aspect of the course of treatment. Thus, for example, if during a patient's visit to the emergency room a physician is negligent, that physician was acting within the scope of his employment, and is immune, if a resident or student was involved in the patient's treatment during that visit. Kaiser v. Flege, supra, 1998 WL 655392; Barkan, supra, 2003-Ohio-985.
{ } Notably, the degree of the student or resident's involvement is not significant in this analysis as long as the practitioner was teaching at the time of the alleged wrongful act. Further, it is irrelevant how the patient views his relationship with the practitioner.
{ } In the case at bar, UC introduced evidence that a student and at least three residents were involved with Theobald's treatment. However, in determining that the practitioners were not acting within the scope of their employment, the Court of Claims did not concentrate on this evidence but, instead, relied
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