[Cite as Lips v. Univ. of Cincinnati College of Medicine, 2010-Ohio-3479.]

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

GAIL P. LIPS, Admx., etc. 

 Plaintiff 

 v. 

UNIVERSITY OF CINCINNATI COLLEGE OF MEDICINE 

 Defendant 

Case No. 2009-01115 

Judge Joseph T. Clark 

DECISION

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

R. Bruce Bracken, 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} Plaintiff’s decedent, James A. Lips,1 was diagnosed with prostatic 

carcinoma in September 2007. Lips subsequently conducted extensive research about 

the various treatment options available to him and the physicians who were qualified to 

perform such treatments. On December 31, 2007, Lips underwent a robot-assisted 

radical prostatectomy at University Hospital in Cincinnati, Ohio. The procedure was 

performed by Dr. Bracken, a member of defendant’s faculty. Dr. Bracken testified that 

certain complications arose during surgery which resulted in the procedure lasting 

approximately eight hours. Lips never recovered from the surgery and died on January 

6, 2008. 

{¶ 6} The parties agree that Dr. Bracken is a member of defendant’s faculty and 

that resident physicians were present in the operating room when the surgery was 

performed. Plaintiff concedes in her post-hearing brief that immunity should be granted 

for any negligence that occurred during the surgery and post-operative care. Indeed, 

the testimony at the hearing establishes that Dr. Bracken’s duties included meeting with 

prospective patients, explaining treatment methods, and disclosing his personal 

experience. Thus, the court finds that he was acting within the scope of his state 

employment at all times relevant hereto. Plaintiff contends, however, that Dr. Bracken 

acted in bad faith when he intentionally misled plaintiff and her husband regarding both 

the details of the surgical procedure and the extent of his surgical experience. 

{¶ 7} At the hearing, plaintiff testified that her husband had interviewed many 

physicians in the area and that several had recommended Dr. Bracken due to his 

experience in his field. Plaintiff also testified that her husband discussed with Dr. 

Bracken the advantages and disadvantages of undergoing the procedure at a regional 

facility rather than a local hospital. Plaintiff testified that the convenience of follow-up 

appointments was a consideration that led her husband to choose to undergo the 

 1

References to “Lips” in this decision are to decedent, James A. Lips. 
surgery at a local hospital. 

{¶ 8} Dr. Bracken testified that he met with Lips and plaintiff and engaged them 

in a thorough discussion about the procedure. He has no recollection of giving Lips an 

estimate on the length of time the procedure would take, as it tends to vary based upon 

many factors, including the ease at which he can surgically connect the bladder to the 

urethra. According to Dr. Bracken, ten days prior to surgery he received a letter from 

Lips wherein Lips stated that he wanted his lymph nodes to be removed during surgery 

and to have them tested for cancerous cells. Dr. Bracken stated that he had previously 

informed Lips that removal of the lymph nodes during surgery would increase the 

probability of complications. 

{¶ 9} Plaintiff alleges that Dr. Bracken erroneously informed plaintiff and Lips 

that he had participated in approximately 200 similar procedures when, in fact, he had 

performed only 26 such procedures. Plaintiff also alleges that Dr. Bracken guaranteed 

both her and Lips that the procedure would not exceed two to three hours when, in fact, 

it lasted approximately eight hours. Finally, plaintiff states that Dr. Bracken exaggerated 

the benefits of undergoing the procedure at a local hospital as compared to a regional 

facility. According to plaintiff, Dr. Bracken was motivated to “overstate his experience,” 

in order to secure Lips as a patient because Lips was a friend and neighbor of Dr. Tew, 

head of University Hospital’s neurosurgical department, and that Dr. Bracken believed it 

would impress Dr. Tew if Lips were his patient. 

{¶ 10} The court finds that there is sufficient evidence to conclude that Dr. 

Bracken made the aforementioned representations to plaintiff and her husband. The 

question becomes whether Dr. Bracken made such representations in bad faith. “Bad 

faith” has been defined as “dishonesty of belief or purpose.” Black’s Law Dictionary (9 

Ed. 2004) 159. 

{¶ 11} Dr. Bracken testified that he had, in fact, “participated in the approximately 

200 cases” in which a radical prostatectomy was performed and that he had not 

misrepresented his experience to Mr. and Mrs. Lips. Indeed, the evidence convinces 

the court that Dr. Bracken participated to some degree in approximately 200 cases 

where the procedure was performed. Although other surgeons performed the surgical 
procedure in many of those cases, the court finds that Dr. Bracken did not intentionally 

mislead plaintiff or her husband regarding his surgical experience. 

{¶ 12} Similarly, while Dr. Bracken has no recollection of estimating the duration 

of the procedure for Lips, the court finds that Dr. Bracken’s representation regarding 

time was simply an estimate, not a guarantee. Moreover, Dr. Bracken did caution 

plaintiff and her husband that their decision to have Lips’ lymph nodes removed during 

the procedure would increase the possibility of complications. In short, plaintiff has not 

convinced the court that the statement was made with a dishonest belief or purpose. 

{¶ 13} With regard to plaintiff’s contention that Dr. Bracken acted in bad faith 

when he recommended a local surgical facility rather than a regional facility, the court 

finds Dr. Bracken simply related the relative benefits and disadvantages of the facilities 

for Lips to consider, and that Lips used that information along with the advice of other 

physicians to reach his own conclusion. As such, Dr. Bracken’s representations in this 

regard were not made in bad faith. 

{¶ 14} Based upon the totality of the evidence presented, the court finds that Dr. 

Bracken acted within the scope of his employment with defendant at all times relevant 

hereto. The court further finds that Dr. Bracken did not act with malicious purpose, in 

bad faith, or in a wanton or reckless manner toward plaintiff or plaintiff’s decedent. 

Consequently, Dr. Bracken is entitled to civil immunity pursuant to R.C. 9.86 and R.C. 

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. 

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 

GAIL P. LIPS, Admx., etc. 

 Plaintiff 
 v. 

UNIVERSITY OF CINCINNATI COLLEGE OF MEDICINE 

 Defendant 

Case No. 2009-01115 

Judge Joseph T. Clark 

JUDGMENT ENTRY

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

R.C. 9.86 and 2743.02(F). Upon hearing all the evidence and for the reasons set forth 

in the decision filed concurrently herewith, the court finds that R. Bruce Bracken, 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. 

 _____________________________________ 

 JOSEPH T. CLARK 

 Judge 

cc: 

 

Brian M. Kneafsey Jr. 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Donna L. Crossley 

Joseph W. Shea III 

Shirley A. Coffey 

2350 Chiquita Center 

250 East Fifth Street 

Cincinnati, Ohio 45202 

LP/KAH/cmd

Filed July 9, 2010 

To S.C. reporter July 22, 2010