Youngstown Daily Legal News

Court rules OSU not liable for injuries caused when former doc took patients’ pain medications

JESSICA SHAMBAUGH
Special to the Legal News
Published: June 26, 2013

The 10th District Court of Appeals recently affirmed that the Ohio State University Medical Center was not liable for personal injuries after one of its former doctors allegedly took pain medications from patients to feed his own addiction.

The three-judge appellate panel found that OSU was not liable for injuries caused by Gregory Todd Schulte because they were not foreseeable and because Schulte was acting outside the scope of his employment when the injuries occurred.

Case summary states that John Wagner met Schulte during his treatment at OSU’s Pain Center.

Wagner had pancreatitis that caused him extreme pain and Schulte implanted a morphine pump into Wager that would control the pain in 2000.

Wagner said he developed a close relationship with Schulte during his treatment.

During that relationship, Schulte told Wager that he hoped to conduct research about a “marker” called “Schedule P” that occurred in the spinal fluid of chronic pain patients.

Other members of the pain clinic later denied any knowledge of Schulte’s involvement with the research.

Schulte acknowledge he had a substance abuse problem in 2001 and his medical license was suspended for three months.

He was ordered to enter a substance abuse program and consent to random drug testing.

The following year OSU allowed him to work as an assistant professor and in its pain clinic.

In 2004, Schulte was observed coming to work impaired and his drug tests tested positive for morphine and methadone, according to case summary.

As a result, OSU placed him on administrative leave and banned him from providing patient care.

He was formally terminated and his medical license was suspended for one year at the end of 2004.

Wagner said he asked about Schulte’s absence at a November 2004 appointment, but his treating physician only stated that he was not there at the time.

On Jan. 5, 2005, OSU became aware that Schulte had siphoned pain medication from a pain pump installed in his own father.

Schulte was living with his father at the time and serving as his primary caregiver since the man was seriously ill.

OSU reported the incident to the Ohio Department of Job and Family Services as elderly abuse after a home nurse noticed needle puncture marks and the missing medication.

Wagner later argued that this behavior should have notified OSU that Schulte could pose a danger to his former patients.

The trial court, however, ruled that the injuries were not foreseeable and the appellate panel concurred.

“It is well recognized in the medical community that a primary characteristic of addiction is relapse and that an addict will often demonstrate compulsive or impulsive and almost incomprehensible behavior to satisfy his or her dependence,” Second District Judge Jeffrey Froelich, who sat by appointment, wrote for the court.

“We also recognize, however, that one’s actions toward a family member in the privacy of one’s home are not necessarily reliable indicators of how one will act toward others.”

The following week, Schulte contacted Wagner and said he was starting the Schedule P research.

Wagner told Schulte that he could come to Wagner’s home to collect a sample of spinal fluid.

Schulte went to the house and siphoned morphine from Wagner’s pain pump while telling Wagner that it was spinal fluid, case summary explained.

Wagner’s pain eventually escalated such that he had to go to the hospital and his pain pump was removed for several months due to complications and infections related to Schulte’s actions.

Meanwhile, OSU learned that Schulte had also siphoned morphine from another patient a few days later under the guise of conducting research.

After learning of Schulte’s behavior, OSU sent letters to its pain patients warning them of his conduct.

Wagner was contacted by Gahanna police and filed a civil suit against Schulte in which he was awarded $6 million in damages.

Schulte was indicted for several accounts including felonious assault and aggravated robbery and pleaded guilty to 10 counts.

He was sentenced to four years in prison.

Wagner then filed a complaint against OSU claiming it was negligent by failing to monitor Schulte and retaining him as an employee.

The Franklin County Court of Common Pleas found that Schulte’s risk to Wagner was not foreseeable and that OSU had taken reasonable steps to protect its patients.

Wagner appealed to the 10th District, claiming the trial court’s findings were against the manifest weight of the evidence.

The appellate judges found, however, that by the time Schulte encountered Wagner, OSU had terminated his employment and his medical license had been banned.

OSU doctors testified that they did not suspect Schulte would contact patients at their homes and that they believed patients knew OSU doctors would not make home visits.

The appellate judges ruled that the trial court had discretion to believe that testimony.

“Schulte’s actions clearly fell outside the normal procedures used by OSU and its pain pump patients, and, at the time of his crime, he acted without a medical license and under the threat of additional penalties from the Medical Board,” Froelich wrote.

The judges found that OSU took action through sending letters after it became aware that Schulte was a threat.

That knowledge, however, came about after Wagner’s incident.

Under these circumstances, the judges ruled that the trial court could have reasonably found OSU did not have a basis to anticipate Schulte’s crimes.

They held that the common pleas court ruling was not against the manifest weight of the evidence and affirmed.

Second District judges Mary Donovan and Michael Hall also sat by assignment on the case and joined Froelich to form the majority.

The case is cited Wagner v. Ohio State Univ. Med. Ctr., case No. 2013-Ohio-2451.

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