Theobald v. University of Cincinnati - reforming medical malpractice in Ohio: a survey of state laws and policy impacts.

• Author: Dunne, Brian

1. INTRODUCTION II. THEOBALD V. UNIVERSITY OF CINCINNATI A. Theobald's Facts B. Theobald's Posture C. Theobald's Opinion and Holding III. HISTORY OF MEDICAL PRACTITIONER-STATE EMPLOYEE IMMUNITY CASE LAW IV. COMPARING THEOBALD TO OTHER JURISDICTIONS A. Comparing Ohio and Other "General Statute" States. B. Comparing Ohio and Common Law States C. Conclusion of State Comparisons V. POLICY ISSUES OF THEOBALD A. Effect on Forum B. Effect on Damages Recoverable C. Economic Effects on Medical Services Market VI. CONCLUSION VII. EPILOGUE VIII. APPENDIX: PHYSICIAN IMMUNITY CHARTS A. Governing Law of Immunity B. Applicable Rule of Immunity When Teaching Through Treatment and Dual Agency with Private Organization I. INTRODUCTION

   In its recent decision of Theobald v. University of Cincinnati, Ohio's Tenth District Court of Appeals declared that medical practitioners shall have state employee immunity, based on section 9.86 of the Ohio Revised Code, anytime they treat a patient as long as they act in a dual role to "teach" an "involved" student or resident. (1) This immunity takes away the patient's right to sue the practitioner personally for his medical malpractice. As required by this holding, the doctor must have an employment relationship with a state medical college. (2) However, the employment relationship could encompass anything from a faculty position to something as minimal as a work relationship with a private practice plan closely tied to the state medical college. (3)

   Also, within this holding, the court held that the amount of involvement of the student or resident does not matter as long as the practitioner was "teaching" at the time of treatment. (4) Essentially, teaching may be satisfied as long as the student or resident observes treatment. (5) Finally, the court emphasized that the patient's view of his relationship with the practitioner is completely irrelevant during an immunity determination. (6) Thus, private patients will not be allowed to sue physicians in their private capacity.

   Theobald runs contrary to the established case law of Ohio at the time. (7) The prior law was clear that practitioners receive immunity when treating a patient of the state or supervising another's treatment of a patient. (8) Moreover, when Theobald is compared to other jurisdictions' immunity grants, Ohio appears to be an extreme outlier. (9) And even when Ohio is compared to those states with nearly identical immunity statutes, Theobald still does not meet conventional jurisprudence. (10)

   Finally, not only is it difficult to justify the decision through precedent or conventional wisdom among the several states, but there are also harsh practical effects that make any policy justification unreasonable. First, a plaintiff's primary forum, in a Theobald-like case, has now been changed from the Court of Common Pleas to the Court of Claims. (11) Second, with the grant of immunity, the state shall be liable for all damages, but statutory limitations allow much less recovery against the state than against private medical practitioners. (12) These limitations result from the inflexibility of the cap on damages against the state, which does not provide for cap exceptions due to deformity, loss of limb, or loss of bodily organ system. Third, Theobald gives state related practitioners less of an economic incentive to follow the standard of care than it does to private physicians, consequently devaluing medical service markets. (13)

   Part II of this article discusses how the case of Theobald developed and how the Tenth District came to its ultimate conclusion that dual agent medical practitioners should receive immunity. Part III addresses Ohio's prior case law leading up to the Theobald decision. Part IV compares the Ohio immunity statute, section 9.86 of the Ohio Revised Code and the Theobald outcome to similar statutes and restatements of other states and their ultimate rules on dual agent immunity. Part V discusses the practical effects of Theobald, including the change of forum, new limitation on damages, and economic effects on the medical service market.

   Theobald was upheld in law and fact by the Supreme Court of Ohio on December 13, 2006. (14) However, since the Tenth District Court of Appeals has issued all the pertinent case law on this matter, and the Supreme Court of Ohio simply affirmed the reasoning, this article shall discuss the Court of Appeals' decision and not the Supreme Court's.

2. THEOBALD V. UNIVERSITY OF CINCINNATI

   1. Theobald's Facts

      Theobald began with a patient of the University of Cincinnati's University Hospital alleging inadequate medical care, which resulted in blindness and lack of mobility in his arms. (15) Mr. Theobald, a plaintiff and the victim in this case, arrived at the hospital in serious condition after a multi-car collision. (16) Soon after arrival, the hospital staff identified his injuries and initially ascertained that surgery was necessary. (17)

      The practitioners, however, waited until the following day to perform more tests to ensure surgery was, in fact, required. (18) Due to Mr. Theobald's extensive spinal injury, surgery would be seriously complicated. (19) The next day's examinations and x-rays confirmed that he would need an operation, and that evening the medical team performed surgery. (20) Three residents and a student assisted in or observed the treatment administered to Mr. Theobald at some point during the two days. (21) The plaintiffs' claim was that subsequent to the operation Mr. Theobald went blind and lost all mobility of his arms. (22)

   2. Theobald's Posture

      A year later, Mr. and Mrs. Theobald brought suit against the hospital and the four key medical practitioners that performed his operation. (23) The group of four defendants included three doctors who worked for the University of Cincinnati [hereinafter UC] part-time and one nurse who volunteered as a part-time clinical instructor at the university. (24) All four, however, also work professionally in private practice plans, (25) which paid them individually for Mr. Theobald's treatment. (26)

      Mr. and Mrs. Theobald filed suit in the Court of Claims against UC, a state actor. (27) The four medical practitioners were also joined in the suit since they asserted immunity under section 9.86 of the Ohio Revised Code. This section of the statute grants the employees and officers of the State of Ohio full immunity from civil liability when acting within the scope of their employment, unless the officer or employee acted with "malicious purpose, in bad faith, or in a wanton or reckless manner." (28) Therefore, before granting immunity a court must decide "(1) that the person is a state officer or employee, and (2) that the officer or employee was acting within his scope of employment and without malicious purpose, in bad faith or in a wanton or reckless manner." (29) Further, a court must assess whether the overriding interests of another severs the scope of employment for one who would otherwise be considered an employee of the state. (30)

      Procedurally, anytime there is a question of whether a person should receive state employee immunity under section 9.86, a plaintiff must proceed to the Court of Claims, which hears claims against the State, for an immunity determination. (31) If the immunity is determined to be proper, the plaintiff's only claim exists against the state, which waives sovereign immunity for actions of state employees who receive section 9.86 immunity. (32) If immunity does not exist, then the cause of action will proceed to the Court of Common Pleas. (33)

      Accordingly, the Court of Claims held an immunity determination of whether the medical practitioners were employees of the state and acting in the scope of employment of UC. (34) In its decision, the Court of Claims ruled that only two of the medical practitioners were employees of the state and none were within the scope of state employment. (35)

      After appeals on a separate issue, UC appealed the ruling of the Court of Claims as to state employee status. (36) The Tenth District Court of Appeals heard the appeal and ultimately reversed the lower court's

      decision. (37) The Supreme Court of Ohio heard a final appeal by the Theobalds but ultimately affirmed the appellate court's holding in both law and fact. (38)

   3. Theobald's Opinion and Holding

      The Tenth District first considered whether the doctors and nurse qualified as state employees. Since the Court of Claims held that two of the doctors met the requirement for state employment, the Tenth District needed only to decide if the third doctor and the nurse were state employees. (39) The court concluded that the doctor was a state employee since he had worked for the UC as an assistant professor. (40)

      The court focused much more on whether the nurse was a state employee, because the nurse's employment relationship with UC was only as a volunteer clinical instructor. (41) She received no compensation for her work from UC. Instead, she was gainfully employed by a private practice plan which had a working relationship with UC. (42) Particularly, the private practice plan provided funds for UC's anesthesia department, and UC maintained checks on the practice plan's budgetary concerns. (43) The court ultimately decided that the relationship between the private employer and UC was "sufficiently close," in spite of being separate legal entities; thus, the nurse was considered a state employee for immunity purposes. (44)

      Next, the court discussed the case's main issue: whether the medical practitioners acted within the scope of their employment during the surgery that led to the cause of action. The court began by stating the general rule that "conduct is within the scope of employment if it is initiated, in part, to further or promote the master's business." (45) Thus, the court had to find enough state interest in the treatment of Mr. Theobald to find immunity. (46)

      The court analysis examined "scope of...