[Cite as Chappelear v. Ohio State Univ., 2009-Ohio-7059.]

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us

SUSAN CHAPPELEAR, etc., et al. 

 Plaintiffs 

 v. 

THE OHIO STATE UNIVERSITY MEDICAL CENTER 

 Defendant 

Case No. 2008-02703 

Judge Clark B. Weaver Sr. 

DECISION

{¶ 1} An evidentiary hearing was conducted in this matter to determine whether 

Sheldon Simon, M.D., is entitled to civil immunity pursuant to R.C. 2743.02(F) and 9.86. 

Upon review of evidence presented at the hearing, the court makes the following 

determination. 

{¶ 2} R.C. 2743.02(F) states, in part: “A civil action against an officer or 

employee, as defined in section 109.36 of the Revised Code, 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, which has exclusive, original jurisdiction to 

determine, initially, whether the officer or employee is entitled to personal immunity 

under section 9.86 of the Revised Code and whether the courts of common pleas have 

jurisdiction over the civil action.” 

{¶ 3} R.C. 9.86 states, in part: 
{¶ 4} “[N]o officer or employee [of the state] 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.” 

{¶ 5} On October 14, 2009, the parties filed a “joint partial stipulation of facts 

relevant to immunity” wherein they state in pertinent part as follows: 

{¶ 6} “1. At all times relevant herein Susan Chappelear was a patient at 

Columbus Children’s Hospital (CCH) in Columbus, Ohio. 

{¶ 7} “2. CCH is a private hospital that is not owned or operated by The Ohio 

State University. It is not part of any state university, and is not an instrumentality of the 

State of Ohio. 

{¶ 8} “3. In September 1997, Dr. Sheldon Simon was employed by the 

defendant, Ohio State University, as the chief of the Division of Orthopedic Surgery, in 

the Department of Surgery of the OSU College of Medicine. Dr. Simon’s duties and 

responsibilities included the education and training of OSU orthopedic surgery 

residents. Part of the training of residents in orthopedic surgery requires them to rotate 

through a program that provides orthopedic surgery services to pediatric patients. 

During the several months of the year that Dr. Simon was assigned to be on duty as an 

orthopedic surgeon at CCH, he would perform surgery with the assistance of OSU 

residents who acted under his direct supervision. 

{¶ 9} “4. On or about September 1, 1997, plaintiff Susan Chappelear was 

admitted to CCH, and underwent a surgery performed by Dr. Simon to repair a fracture 

of her humerus. During that surgery, Dr. Simon was assisted by, and was supervising, 

Dr. Jeffrey Ralston who was an OSU orthopedic surgery resident. The surgery was 

completed in the early morning hours of September 2, 1997. Susan Chappelear was 

discharged from CCH on September 2, 1997, but by that time Dr. Simon had left the 

hospital. 

{¶ 10} “5. On September 3, 1997, Susan Chappelear, who was then five years 

old, returned to the Orthopedic Fracture Clinic at CCH. This was not a scheduled clinic 

visit, and she complained of pain in her fingers, and that her cast was tight. She was 
seen by Dr. Doug Flory, who was a resident employed by Mt. Carmel Hospital, and was 

training in their orthopedic residency program. Dr. Flory was not employed by OSU, 

and was not enrolled in the OSU residency training program. Dr. Flory saw Susan, and 

claims that he consulted with one of the attending surgeons at CCH. Although he is not 

sure which attending surgeon he consulted, he is certain that it was not Dr. Simon. 

After the cast was trimmed and rewrapped, Susan was discharged to home. 

{¶ 11} “6. Susan returned to the clinic on September 9 for her scheduled one 

week follow-up visit and was seen by Dr. Ralston. He was supervised by Dr. Simon. 

Susan was discharged and instructed to return in two weeks. 

{¶ 12} “7. Susan returned again on September 23, and again was seen by Dr. 

Ralston who was supervised by Dr. Simon. She was discharged from the clinic and 

instructed to return in three weeks. 

{¶ 13} “8. Susan returned on October 14, and was seen by Dr. Timothy 

Kavanaugh, an OSU resident who was supervised by Dr. Simon. At that visit she was 

noted to have a possible contracture of her arm, and was subsequently diagnosed with 

a neurologic injury and contracture of her arm. 

{¶ 14} “9. Plaintiffs’ claim against Dr. Simon is that he deviated from accepted 

standards of care in that on September 2, 1997, after he completed his surgery, he was 

obligated to either (1) instruct the CCH staff that Susan should not be discharged that 

day and should not be discharged until he returned to see her, or (2) place an order on 

her chart that if she were to be discharged on September 2 that if she returned to clinic 

prior to her scheduled one week follow up visit that he was to be notified, and that he 

was to see her. 

{¶ 15} “* * * 

{¶ 16} “11. The parties agree and stipulate that if any claim is brought against Dr. 

Simon in Franklin County Court of Common Pleas Case No. 07-CVA-06-07563 based 

upon an alleged failure to comply with the appropriate standard of care during the direct 

supervision of Dr. Flory, then such a claim does not arise out of any employment with 

The Ohio State University, and that Dr. Simon is not entitled to immunity with regard to 

any such claims under the express terms of R.C. 9.86. It is agreed that the claim 
outlined in paragraph 9 is not a claim that is based upon an alleged failure to comply 

with the appropriate standard of care during the direct supervision of Dr. Flory.” 

{¶ 17} The Supreme Court of Ohio has held that “in an action to determine 

whether a physician or other health-care practitioner is entitled to personal immunity 

from liability pursuant to R.C. 9.86 and 2743.02[F], the Court of Claims must initially 

determine whether the practitioner is a state employee.” Theobald v. University of 

Cincinnati, 111 Ohio St.3d, 2006-Ohio-6208, ¶30. The court finds that, based upon 

paragraph 3 of the parties’ stipulation, Dr. Simon was a state employee. 

{¶ 18} Thus, the issue before the court is whether Dr. Simon was acting on 

behalf of the state at the time when the alleged negligence occurred and, inasmuch as 

Dr. Simon’s duties included the education of residents, whether he was in fact educating 

a resident at the time of the alleged negligence. 

{¶ 19} At the hearing, counsel presented oral argument and joint exhibits. The 

parties agree that Dr. Flory is not entitled to immunity because he was not a student in 

defendant’s residency program. The parties also agree that Dr. Ralston is entitled to 

immunity, because he was student in defendant’s residency program. Plaintiffs have no 

criticism of the surgery that Dr. Simon performed with Dr. Ralston’s assistance. 

However, plaintiffs argue that Dr. Simon is not entitled to immunity because his alleged 

negligent conduct, the failure to convey information regarding patient care, cannot be 

construed as education or training of a resident. 

{¶ 20} Defendant contends that Dr. Simon is entitled to immunity for the following 

reasons: 1) he was educating and training an OSU resident during the surgery; 2) Dr. 

Ralston participated in the surgery and wrote the discharge summary while under Dr. 

Simon’s supervision; and 3) any allegations of negligence with regard to Dr. Simon are 

related to the care and treatment of Susan that either he or Dr. Ralston provided. 

{¶ 21} The court is persuaded by the fact that Dr. Ralston was present during the 

surgery for the purpose of education that Dr. Simon was furthering the interests of the 

state in his care and treatment of Susan during the surgery. 

{¶ 22} In affirming the holding of the Tenth District Court of Appeals, the 

Supreme Court of Ohio agreed 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.” Theobald, supra, at ¶23. The Court of 

Appeals had explained that “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.” Theobald v. Univ. of Cincinnati, 160 Ohio App.3d 342, 

2005-Ohio-1510, ¶47. 

{¶ 23} Based upon the stipulated facts and the totality of the evidence presented, 

the court concludes that Dr. Simon’s duties as a state-employed professor of surgery 

included treating patients at CCH, and that he was engaged in those duties at the time 

of the alleged negligence. This court has previously determined that the holding in 

Theobald does not restrict physician immunity to situations where a resident or student 

was physically present or assisting in the care of a patient. See Clevenger v. Univ. of 

Cincinnati Coll. of Med., Ct. of Cl. No. 2008-10323, 2009-Ohio-2829. It is clear that the 

surgery that Dr. Simon performed with Dr. Ralston’s assistance and the post-operative 

note that Dr. Ralston authored involved the education of Dr. Ralston. Therefore, the 

court concludes that Dr. Simon was acting within the scope of his state employment 

with defendant at the time that the alleged negligence occurred. The court notes that 

although plaintiffs’ claims concern an alleged omission, that fact alone does not render 

Dr. Simon’s conduct outside the scope of his state employment. See Bruni v. Tatsumi 

(1976), 46 Ohio St.2d 127, 131.1

{¶ 24} In sum, the court concludes that Dr. Simon is entitled to civil immunity 

pursuant to R.C. 9.86 and 2743.02(F). Therefore, the courts of common pleas do not 

have jurisdiction over any civil actions that may be filed against him based upon the 

allegations in this case. 

 1

“In order to establish medical malpractice, it must be shown by a preponderance of the evidence 

that the injury complained of was caused by the doing of some particular thing or things that a physician 

or surgeon of ordinary skill, care and diligence would not have done under like or similar conditions or 

circumstances, or by the failure or omission to do some particular thing or things that such a physician or 

surgeon would have done under like or similar conditions and circumstances, and that the injury 

complained of was the direct result of such doing or failing to do some one or more of such particular 

things.” Id. at paragraph 1 of the syllabus. (Emphasis added.) 
 

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us 

SUSAN CHAPPELEAR, etc., et al. 

 Plaintiffs 

 v. 

THE OHIO STATE UNIVERSITY MEDICAL CENTER 

 Defendant 

Case No. 2008-02703 

Judge Clark B. Weaver Sr. 

JUDGMENT ENTRY

 The court held an evidentiary hearing to determine civil immunity pursuant to 

R.C. 9.86 and 2743.02(F). At the hearing, the parties presented oral arguments and 

submitted a joint stipulation of facts and exhibits. The court has considered the 

evidence and, for the reasons set forth in the decision filed concurrently herewith, the 

court finds that Sheldon Simon, M.D. is entitled to immunity pursuant to R.C. 9.86 and 

2743.02(F) and that the courts of common pleas do not have jurisdiction over any civil 

actions that may be filed against him based upon the allegations in this case. 

 _____________________________________ 

 CLARK B. WEAVER SR. 
 Judge 

cc: 

 

Anne B. Strait

Daniel R. Forsythe 

Karl W. Schedler 

Assistant Attorneys General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Gerald S. Leeseberg 

Susie L. Hahn 

175 South Third Street 

Penthouse One 

Columbus, Ohio 43215-5134 

 

Jennifer L. Hill 

Mark L. Schumacher 

Capitol Square Office Building 

65 East State Street, Suite 800 

Columbus, Ohio 43215-4247 

Anne B. Strait

Daniel R. Forsythe 

Karl W. Schedler 

Assistant Attorneys General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Gerald S. Leeseberg 

Susie L. Hahn 

175 South Third Street 

Penthouse One 

Columbus, Ohio 43215-5134 

 

Jennifer L. Hill 

Mark L. Schumacher 

Capitol Square Office Building 

65 East State Street, Suite 800 

Columbus, Ohio 43215-4247 

HTS/cmd

Filed December 14, 2009 

To S.C. reporter December 29, 2009