Doctor Acting Within the Scope of His or Her State Employment Is Immune from Liability
The Supreme Court of Ohio ruled today that a doctor who is a faculty member of a state medical school and also employed by the school’s nonprofit medical practice plan corporation is statutorily immune from personal liability for medical negligence if acting within the scope of his or her state employment while treating a patient, regardless of whether the doctor is teaching at the time.
The 5-2 decision, authored by Justice Terrence O’Donnell, upholds the ruling of the Tenth District Court of Appeals and examines the Ohio Supreme Court’s 2006 holding in Theobald v. Univ. of Cincinnati.
Dr. Syed Husain, a faculty member of the Ohio State University (OSU) College of Medicine, staffed the colorectal surgery clinic at University Hospital East. In September 2009, patient Michael McNew met with Husain at the clinic and complained of an acutely painful hemorrhoid in addition to nausea, diarrhea, sore throat, and fatigue. Husain diagnosed a blood clot in the hemorrhoid and treated it.
McNew later called Husain for help with pain management and allegedly complained of bleeding, bruising, and shortness of breath. A few days later McNew died from an undiagnosed cerebral hemorrhage caused by thrombocytopenia, a bleeding disorder.
The following year, Matthew Ries, the administrator of McNew’s estate, and Cyrelle McNew, his surviving spouse, filed an action in the Court of Claims of Ohio against the OSU Medical Center, asserting claims for negligence, medical malpractice, wrongful death, and loss of consortium. They also filed a civil claim against Husain and OSU’s medical practice plan corporation in the Franklin County Common Pleas Court, which stayed the case until the Court of Claims determined whether Husain was immune from suit. While the Court of Claims found that Husain wasn’t teaching during the time he was treating McNew, it said Husain’s duties as a faculty member included providing clinical care to patients for the OSU Medical Center and he had been acting within the scope of his state employment while treating McNew. The court therefore concluded that Husain was personally immune from liability in this case based on R.C. 9.86, which governs the immunity of public officers and employees.
Ries appealed to the Tenth District Court of Appeals, but the appeals court agreed with the Court of Claims. Ries asked the Ohio Supreme Court to review the Tenth District’s decision.
Citing the Ohio Supreme Court’s 2006 decision in Theobald v. Univ. of Cincinnati, Justice O’Donnell wrote in today’s decision that the Court of Claims’ first step in determining whether a state employee is immune from personal liability is to address two questions: Was the individual a state employee? If so, was the individual acting within the scope of employment when the cause of action arose? Theobald then states that, when performing duties for the state, a state employee is not liable for injury unless the employee acted “with malicious purpose, in bad faith, or in a wanton or reckless manner” or manifestly outside the scope of his or her employment.
“Theobald did not establish a categorical rule that a physician who is a member of the faculty of a state medical college is immune for providing clinical care only while teaching a medical student or resident,” Justice O’Donnell wrote. “Rather, the scope of employment is a fact-based inquiry that turns on proof of the employee’s specific job description with the state and focuses on whether the employee’s conduct is related to and promotes the state’s interests.”
Justice O’Donnell pointed out that the OSU Medical Center’s surgery department directed and controlled Husain’s clinical care of patients and that his contract with the university required him to treat patients at the surgical clinic, to participate in the university’s medical practice plan corporation, and to fund his own faculty salary and benefits through outside sources, including clinical revenue from his treatment of patients.
“Even if no medical student or resident observed the clinical services Husain rendered, and even though the university organized its medical-practice plan as a private corporation, Husain’s clinical practice advanced the interests of the state because he staffed a faculty clinic and treated patients at the Ohio State University Medical Center, he contributed to its national ranking and reputation, and he generated revenue that supported the academic mission of the university,” he continued.
“Husain therefore provided clinical services at the Ohio State University Medical Center and its facilities within the scope of his employment as a faculty member of the university and a state employee,” Justice O’Donnell concluded. “Accordingly, because he treated McNew in that capacity, he is entitled to personal immunity.”
The court’s majority opinion was joined by Chief Justice Maureen O’Connor, Justices Judith Ann Lanzinger and Sharon L. Kennedy, and Judge Sylvia S. Hendon of the First District Court of Appeals. Hendon served as a visiting judge during oral arguments in this case, filling in for Justice Judith L. French, who recused herself.
Justice William M. O’Neill entered a dissenting opinion, which was joined by Justice Paul E. Pfeifer.
In his dissent, Justice O’Neill argued that the majority has “needlessly expanded” on the court’s ruling in Theobald and has set a “very dangerous precedent.”
“[T]he majority … adopts a standard that allows the university to decide and declare by contract that all of a physician’s duties, no matter how far they may be removed from educating students, are entitled to state-sanctioned immunity,” he wrote. “That is the wrong approach, and it is simply illogical and contrary to statute to provide immunity for acts that are completely unrelated to the education of students. The net result is that the burden of paying for negligent acts will transfer from private insurance companies to the taxpayers of Ohio.”
Before Theobald, Ohio courts consistently held that a doctor’s immunity was contingent on the presence of a student, Justice O’Neill stated.
“In Theobald, this court noted many of these cases and acknowledged that the focus of the analysis needed to be on the scope of employment with the state and on whether the physician was engaged in those duties at the time of the injury,” he continued. “The bedrock principle that this court should uphold is that in the absence of a student, a procedure performed by a physician should not be protected by the doctrine of immunity. State universities exist to educate. If education is not taking place, immunity does not apply. Clearly, while educating is a legitimate function of the state, competing with private hospitals is not. Providing universities and the doctors who operate in university hospitals with an economic edge is contrary to precedent and not a function of the judiciary.”
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