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Doctor Treating Patient at University Hospital Is Acting as State Employee When Engaged in Teaching
2005-0896. Theobald v. Univ. of Cincinnati, 2006-Ohio-6208.
Franklin App. No. 02AP-560, 160 Ohio App.3d 342, 2005-Ohio-1510. Judgment affirmed.
Moyer, C.J., Resnick, Lundberg Stratton, O'Connor, O'Donnell and Lanzinger, JJ., concur.
Pfeifer, J., dissents.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-6208.pdf
(Dec. 13, 2006) The Supreme Court of Ohio held today that a physician performing a medical procedure on a private patient while also employed as an instructor at a state university medical school is acting within the scope of his public employment, and thus immune from personal liability for negligence, when the physician is engaged in teaching one or more medical students or hospital residents.
In this case, traffic accident victim Keith Theobald and members of his family filed a medical malpractice suit in Hamilton County Common Pleas Court against several doctors and nurses who participated in a surgery Theobald underwent in October 1998 at University Hospital in Cincinnati. When Theobald awoke following a 10-hour surgical procedure, he could not see, had lost the use of his right arm and had little mobility in his left arm.
In response to Theobald's malpractice action, three of the doctors and the anesthesiology nurse named in the suit asserted claims that they were immune from personal liability for Theobald's injuries because they were university employees and were acting in the scope of their public employment when they participated in his surgery. The trial court granted a stay of its proceedings to allow the Ohio Court of Claims to determine whether the defendants claiming immunity were public employees, and if so whether they were acting within the scope of their public employment during Theobald's surgery.
The Court of Claims found that none of the defendants was entitled to individual immunity. Specifically, the court ruled that Dr. Jamal Taha and nurse Maureen Parrot were not public employees because they were paid only by private medical “practice groups” rather than the university; and held that Drs. Frederick Luchette and Harsha Sharma were employed by the university as instructors, but were acting outside their official capacity when they performed surgery on Theobald as a private patient.
The university appealed the Court of Claims decision. The 10th District Court of Appeals reversed and remanded the case for further proceedings. In its decision, the 10th District said the Court of Claims had placed too much emphasis on financial issues when it should “primarily inquire whether the practitioner was educating a student or resident while rendering the allegedly negligent care to the patient.” Theobald appealed the 10th District's ruling, and the Supreme Court agreed to hear the appeal.
In today's 6-1 decision, written by Justice Evelyn Lundberg Stratton, the Court affirmed the 10th District's holding and remanded the case to the Court of Claims.
“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. Thus, proof of the content of the practitioner's duties in crucial,” wrote Justice Stratton. … “In this case, the court of appeals concluded that the practitioner's duties included the education of students and residents. The court thus instructed the Court of Claims to ‘first identify the aspect of the course of treatment that the plaintiff alleges gave rise to damage or injury,' then to ‘inquire whether the practitioner was educating a student or resident while rendering the allegedly negligent care to the patient.'”
“We believe that this approach follows the language and intent of R.C. 9.86 and correctly focuses on the purpose of the employment relationship, not on the business or financial arrangements between the practitioner and the state,” Justice Stratton wrote. “R.C. 9.86 is inclusive and makes no exception for persons who may simultaneously have other employment interests. It provides immunity for all state employees as long as they are acting within the scope of their employment when the injury occurs.”
Justice Stratton also rejected the Theobalds' claim that, in order for a health care professional to later assert public employee immunity from malpractice liability for the performance of a non-emergency procedure, the practitioner must have given the patient advance notice of that intention and obtained the patient's informed consent. “The statute does not require informed consent, and we will not read such a requirement into the statute,” wrote Justice Stratton. “Instead, the Theobalds should direct this argument to the General Assembly.”
The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Alice Robie Resnick, Maureen O'Connor, Terrence O'Donnell and Judith Ann Lanzinger.
Justice Paul E. Pfeifer entered a dissent asserting that “(t)he new test set forth by the majority opinion apparently immunizes a doctor from negligence whenever negligence occurs in the presence of a student. This test is imbued with the fiction that teaching doctors are always teaching … Teaching by osmosis is not the same as talking a resident through an operation. The mere presence of a student does not establish that instruction is taking place.”
Justice Pfeifer suggested that the majority decision leaves many victims of medical negligence with the expense and delay of pursuing parallel suits in the Court of Claims and common pleas court because of the difficulty of determining whether their damages are recoverable from individual practitioners or only from the state. He also asserted that the majority holding is likely to result in a significant shifting of the costs of medical negligence from individual practitioners and their malpractice insurers to Ohio taxpayers.
Contacts
James P. Sullivan, 513.522.5575, for
Keith Theobald and Theobald family members.
Stephen P. Carney, 614.466.8980, for the University of Cincinnati and Ohio Attorney General's Office.
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