[Cite as Abraham v. State, 2011-Ohio-7005.]

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

JOANN C. ABRAHAM, et al. 

 Plaintiffs 

 v. 

STATE OF OHIO 

 Defendant 

Case No. 2010-07741 

Judge Clark B. Weaver Sr. 

DECISION

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

Mark Harding, M.D., and Sasidhar Kilaru, M.D., are entitled to civil immunity pursuant to 

R.C. 2743.02(F) and 9.86. This case arises out of the medical treatment rendered to 

plaintiff, JoAnn Abraham, on October 12-14, 2007, at Good Samaritan Hospital in 

Cincinnati, Ohio. 

{¶2} R.C. 2743.02(F) states, in part: 

{¶3} “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.” 
{¶4} R.C. 9.86 states, in part: 

{¶5} “[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.” 

{¶6} “[I]n 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(A)(2), the Court of Claims must initially determine whether the practitioner is a 

state employee. If there is no express contract of employment, the court may require 

other evidence to substantiate an employment relationship, such as financial and 

corporate documents, W-2 forms, invoices, and other billing practices. If the court 

determines that the practitioner is not a state employee, the analysis is completed and 

R.C. 9.86 does not apply.” Theobald v. Univ. of Cincinnati, 111 Ohio St.3d 541, 2006-

Ohio-6208, ¶30. 

{¶7} Drs. Harding and Kilaru assert that they are entitled to civil immunity 

inasmuch as they were teaching one or more resident physicians affiliated with the 

University of Cincinnati (UC) at all times relevant to plaintiffs’ complaint. There is no 

dispute that resident physicians affiliated with UC performed clinical rotations at Good 

Samaritan and other hospitals in the Cincinnati area pursuant to a “Master Affiliation 

Agreement for Graduate Medical Education” between TriHealth (the parent company of 

Good Samaritan Hospital), UC, and University Hospital, Inc. (Defendant’s Exhibit A.) 

{¶8} At the hearing, however, Drs. Harding and Kilaru each testified that they do 

not hold faculty appointments or any other offices or positions with UC, that they do not 

practice under the direction of UC, and that their only relationship to UC is teaching UC 

residents who rotate through Good Samaritan Hospital. 

{¶9} The court notes that in the post-hearing brief submitted by Drs. Harding and 

Kilaru, they rely on the decision of the Tenth District Court of Appeals in Engel v. Univ. 

of Toledo College of Medicine, 184 Ohio App.3d 669, 2009-Ohio-3957, to argue that 

their lack of any faculty appointment with UC does not deprive them of personal 
Case No. 2010-07741 - 2 - ENTRY

immunity under R.C. 9.86. However, the Supreme Court of Ohio recently reversed the 

appellate decision, holding that a physician with no contractual relationship with the 

state, whose actions were not controlled by the state, who was not paid by the state, 

and who held no appointed office or position with the state, was not entitled to personal 

immunity pursuant to R.C. 9.86. See Engel v. Univ. of Toledo College of Medicine, Slip 

Opinion No. 2011-Ohio-3375. 

{¶10} Based upon the totality of the evidence, the court concludes that Mark 

Harding, M.D., and Sasidhar Kilaru, M.D., were not employees of the state of Ohio and 

that they are not entitled to immunity pursuant to R.C. 9.86 and 2743.02(F). 

Accordingly, the courts of common pleas have jurisdiction over any civil actions that 

may be filed against them 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 

JOANN C. ABRAHAM, et al. 

 Plaintiffs 

 v. 

STATE OF OHIO 

 Defendant

Case No. 2010-07741 

Judge Clark B. Weaver Sr. 

JUDGMENT ENTRY

{¶11} 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 Mark Harding, M.D., 

and Sasidhar Kilaru, M.D., are not entitled to immunity pursuant to R.C. 9.86 and 

2743.02(F) and that the courts of common pleas have jurisdiction over any civil actions 

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

{¶12} Inasmuch as all claims against the state were dismissed on October 12, 

2010, and this case remained pending for the limited purpose of determining whether 

Drs. Harding and Kilaru are entitled to immunity, plaintiffs’ complaint is DISMISSED. All 

pending motions are DENIED as moot. Court costs are assessed against plaintiffs. 

The clerk shall serve upon all parties notice of this judgment and its date of entry upon 

the journal. 

 
Case No. 2010-07741 - 2 - ENTRY

 _____________________________________ 

 CLARK B. WEAVER SR. 

 Judge 

cc: 

 

Brian M. Kneafsey, Jr. 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Frederick H. Green 

4015 Executive Park Drive, Suite 230 

Cincinnati, Ohio 45241 

Teri A. Wallace 

1014 Vine Street, Suite 1919 

Cincinnati, Ohio 45202 

James P. Triona 

Paul J. Vollman 

2021 Auburn Avenue 

Cincinnati, Ohio 45219 

Filed December 5, 2011 

To S.C. reporter March 5, 2012