# Anderson v. Eichner > Supreme Court of Oklahoma · December 6, 1994 · 65 O.B.A.J. 4037 URL: https://www.frixlaw.com/law-library/cases/9794165 ## Case - **Full name:** Leon ANDERSON, Individually and as Special Administratrix and Personal Representative of the Estate of Henry Lee Richard, Deceased, Josephine Goodbear, Individually and as Mother and Next Friend of Henry Richard, Jr., a Minor, Stacy Richard, a Minor and Brandon Richard, a Minor, Michael Richard and Steven L. Richard, Plaintiffs-Appellants, v. Edward EICHNER, Randy Morgan, A/K/A R.R. Morgan, Lee Serbousek, Edward Kuekes, Ronald Greenfield, John P. Kuebler, Oklahoma Memorial Hospital and the State of Oklahoma Teaching Hospitals, Defendants-Appelleesl; Uttara Karnik BHAT, a Totally Incapacitated Adult, and Chandrashekar A. Bhat, as Husband and Guardian of the Person and Property of Uttara Karnik Bhat, a Totally Incapacitated Adult; And Martand R. Karnik and Mrs. Shashikala Martand Karnik, Parents of Uttara Karnik Bhat, Plaintiffs-Appellants, v. STATE of Oklahoma Ex Rel. DEPARTMENT OF HUMAN SERVICES—OKLAHOMA MEMORIAL HOSPITAL and Ex Rel. Board of Regents of the University of Oklahoma; Ralph Lazzara, M.D.; John Harvey, M.D.; Eliot Schechter, M.D.; John Randolph, M.D.; And Nick Twidale, M.D., Individually; And the College of Medicine Private Practice Plan, a Joint Venture Medical Partnership, A/K/A the University of Medicine Professional Practice Plan, Defendants-Appellees - **Court:** Supreme Court of Oklahoma - **Decided:** December 6, 1994 - **Citations:** 65 O.B.A.J. 4037; 890 P.2d 1329; 1994 OK 136; 1994 Okla. LEXIS 154; 1994 WL 677934 - **Precedential status:** Published - **Opinion:** Dissent by Watt - **Judges:** Opala, Lavender, Simms, Wilson, Kauger, Summers, Hodges, Watt, Hargrave - **Cited by:** 54 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9794165 ## Opinion text WATT, Justice, with whom HODGES, C.J., joins, dissenting: I respectfully disagree with the majority’s conclusion that the defendant faculty physicians, resident physicians and interns were acting outside of the scope of their employment as state employees when their alleged acts of malpractice occurred. As with the majority, my opinion is grounded on the interpretation of a state “employee” under 51 O.S.Supp.1986 § 152(5). However, it is my opinion that because the actions of the defendant doctors’ in the present cases would not have been performed but for their status as faculty physicians and students participating in an educational program at OUHSC, their acts must be considered those of state employees under Title 51. Under § 152(5), the Legislature preserved governmental immunity for itself for tortious acts committed by physicians, residents or interns “while practicing medicine or providing medical treatment to patients.” Section 152(5) also provides that faculty physicians “engaged in their teaching duties” and residents and interns “participating in a graduate medical education program” are employees of the state. As the majority notes, the activities of the defendant doctors include both elements of practicing medicine and teaching or participating in an educational program. To determine which element controls the outcome of these cases, we must examine the principle purpose underlying the doctors’ motivation for acting in the first place. The state employs faculty physicians to instruct and train young doctors and those *1342 seeking to become specialists. By necessity, an essential portion of that educational process must take place in a clinical setting where patients are treated. Teaching, training and treatment go hand-in-hand and all are integral components of the medical educational process. The State of Oklahoma is well aware of this fact and it expects, even requires, its employee faculty physicians to perform all of these duties. When a faculty physician is engaged in instructing students, the making of rounds, performance of surgery or otherwise treating of the state’s patients does not alter the doctor’s status as that of a teacher. These tasks are certainly what the state pays the faculty member to do and something the doctor would not do but for his state salary. Consequently, those actions should not be deemed “practicing medicine or providing medical treatment to patients” under § 152(5). A different conclusion is reached when a faculty physician treats private patients. If a physician, who happens to be a faculty member at a teaching hospital, provides care or treatment to a private patient, he or she generally does so in return for payment from the patient. The doctor does not perform such duties in return for renumeration by the state. In such a case, the faculty member has the same relationship with the patient as any other doctor has with a private patient. Despite his affiliation with the state, a faculty physician’s work with private patients is clearly “practicing medicine or providing treatment to patients” within the meaning of § 152(5). And while a faculty physician may provide clinical training while treating a private patient, his reason for having undertaken the treatment in the first place was that the patient retained him, not that he is a teacher for the state. The rationale applicable to faculty physicians engaged in teaching duties applies to resident physicians and interns participating in a graduate medical education program. Again, the state understands that the treatment of patients is an indispensable component of the medical education process. The state similarly requires that residents and interns treat state patients as part of their scholastic responsibilities. Residents and interns would not conduct such acts were they not employed by the state to do so. Accordingly, their actions in treating the state’s patients should be deemed a part of their educational process and not the practice of medicine under § 152(5). In conclusion, I believe that the lower courts properly granted summary judgment to the defendant doctors in these two cases. Although the doctors were engaged in both practicing medicine and teaching/participating in an educational program, they would not have so acted were they not paid to do so as part of their duties as state employees. Pursuant to 51 O.S.Supp.1986 § 152(5), the doctors should be shielded from suit. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9794165. Public record. Not legal advice.