The Ohio Supreme Court hears oral arguments in eight cases on April 9 and 10.

The Ohio Supreme Court hears oral arguments in eight cases on April 9 and 10.

Among the cases scheduled for argument before the  Supreme Court of Ohio on April 9-10, the justices will review a medical malpractice lawsuit in which a physician who is employed both as an assistant professor at the Ohio State University Medical Center and as an employee of a separate medical practice asserts that he is entitled to immunity from civil liability as a “state employee” for injuries suffered by a private patient during a surgical procedure the doctor performed at the medical center that was not observed by a medical student or otherwise part of an educational activity.

The court’s Office of Public Information today released detailed previews summarizing each of the eight cases that will be argued during the upcoming session.

In  Ries v. OSU Medical Center, one of four cases to be argued on Wednesday, April 10,  Dr. Syed Husain was sued for malpractice by the estate of a patient who died from an undiagnosed bleeding disorder shortly after undergoing hemorrhoid surgery by Dr. Husain at the OSU Medical Center.  Dr. Husain is employed by the university as an assistant professor of surgery, and is also an employee of a separately incorporated medical practice, OSU Physicians Inc., through which his clinical services to the deceased patient were provided and billed.

In response to the plaintiff’s complaint, Dr. Husain sought a ruling by the Ohio Court of Claims that he was immune from personal civil liability for the decedent’s injuries because the surgery he had performed was provided in the scope of his employment by a state university, and therefore the only avenue available to the plaintiff to recover damages for alleged negligent treatment would be through a suit against the State of Ohio that must be brought in the Court of Claims. The Court of Claims agreed with Husain’s argument, holding that despite the fact that the hemorrhoid surgery and his discussions with the deceased patient had not been observed by a medical student and were not part of any other educational activity,  providing clinical service was included as one of the job duties in his contract as a facultymember, and therefore the decedent’s estate could not pursue a private malpractice action against Husain or OSU Physicians Inc. in a civil court.

On review, the Tenth District Court of Appeals affirmed the Court of Claims ruling.  The Supreme Court has agreed to review the Tenth District’s decision.

Attorneys for the patient’s estate argue that the lower court’s decisions are in conflict with a line of prior Ohio appellate and Supreme Court decisions which have held that a physician employed by a university is entitled to “public employee” immunity for negligent medical treatment only when the treatment that caused injury was being observed by medical students or otherwise took place in the context of an “educational activity.” In this case, they assert, the injury suffered by Dr. Husain’s patient had no connection to his public employment as a university professor, but merely occurred in a university-owned hospital while he was operating on a private patient as an employee of a corporate medical practice.

Attorneys for the OSU Medical Center urge the court to affirm the holdings of the Court of Claims and Tenth District that, because the university’s employment contracts with Dr. Husain and other medical school faculty members require them to provide clinical services to hospital patients through the university-created business entity  of OSU Physicians Inc., and because faculty members’ “service” duties specifically include maintaining top-level clinical skills, the treatment at issue in this case was provided in the context of Dr. Husain’s public employment, and he and his medical practice are therefore immune from civil liability for any injury or loss arising from that treatment.

Other cases to be argued on April 10 include:

• In Re Complaint of Cameron Creek Apartments v. Columbia Gas of Ohio, in which a utility company disputes a ruling by the Public Utilities Commission of Ohio requiring it to continue supplying natural gas service to a Columbus apartment complex despite the utility’s attempts to cut off service because the location and ventilation of gas appliances installed in 1997 do not meet current safety standards for new construction.
• In Stark County Bar Association v. Williams, a local bar association that sought the disbarment of  a Canton attorney for  misappropriating more than $175,000 from her clients disputes a recommendation by the Board of Commissioners on Grievances & Discipline that the attorney’s license be indefinitely suspended rather than permanently revoked.
• In State v. Boykin, an Akron woman who was granted a full pardon by former governor Ted Strickland for offenses she committed in the 1990s seeks reversal of lower court decisions holding that the granting of a pardon does not require courts to seal  the records of the pardoned convictions.

The four cases to be argued before the court on Tuesday, April 9, include:

• Bernard v. Unemployment Compensation Review Commission, in which a woman who was denied state unemployment benefits challenges the state’s exclusion of pay that she could have collected in cash but instead diverted to a pre-tax medical spending account when it calculated her “average weekly wage” during her last period of employment.
• Moretz v. Muakkassa asks the court to decide whether a defendant in a medical malpractice case must present expert testimony to establish that the value of the plaintiff’s medical damages was less than the amounts originally billed for his treatment because health care providers accepted lower amounts as full payment of their bills based on “write-offs” negotiated by the plaintiff’s medical insurance company.
• In Re Application of Pariag involves a criminal case in which the state challenges a ruling by the Tenth District Court of Appeals that ordered a Franklin County trial court to seal the record of two drug-related charges that were filed against a defendant but subsequently dismissed, despite the fact that the same arrest resulted in the defendant’s conviction for driving on an expired license, a conviction that by law may not be sealed.
• In Disciplinary Counsel v. Bunstine,  a Chillicothe attorney asks the court to reduce the penalty recommended by the state disciplinary board for his professional misconduct in soliciting sexual activity from a client.