Update: On October 17, 2013 the Supreme Court handed down a merit decision in this case. Read the analysis here.
Read the analysis of the oral argument here.
On April 10, 2013, the Supreme Court of Ohio will hear oral argument in the case of Matthew Ries, Admr. et al. v. The Ohio State University Medical Center, 2012-0954. The issue regards governmental immunity of physicians employed by both the state and a private corporation.
Under Ohio law, no state employee is liable in any civil action for injury caused in the performance of his duties unless his actions were manifestly outside the scope of his employment or unless he acted with malicious purpose, in bad faith, or in a wanton or reckless manner. Such immunity is determined as a matter of law by the Court of Claims.
Dr. Syed Husain, a faculty member and employee of the Ohio State University College of Medicine treated Michael McNew in the colorectal surgery clinic of the OSU Medical Center. He diagnosed and drained McNew’s hemorrhoid. He also consulted with McNew after McNew left the hospital. Dr. Husain could not recall if a resident was present while he was treating McNew. McNew later lost consciousness and was transported to a different hospital, where he died from a cerebral hemorrhage. Ries, who is the administrator of McNew’s estate, brought this suit for wrongful death on behalf of the decedent’s estate and surviving family.
Physicians who work at the OSU Medical Center are also required to be employed by a private practice non-profit corporation—in this case by the Ohio State University Physicians (OSUP). This meant that Husain’s duties to both employers sometimes overlapped. He might be treating a patient while being observed by a medical student or resident physician, and in such a circumstance would be considered to be a governmental employee and entitled to governmental immunity.
The trial judge in the Court of Claims found that even though Dr. Husain was not teaching residents when the allegedly negligent treatment of McNew occurred, Dr. Husain should be granted immunity anyway because his job required him to work full time for the OSU Medical Center, he did not maintain a private practice, and he was acting within the scope of his state employment at all times pertinent to this action. The trial judge also found OSUP to be the business arm of the OSU Medical Center.
Court of Appeals Decision
The Tenth District Court of Appeals affirmed, holding that these physicians wear two hats when they treat patients, and that the presence of a student for establishing immunity is thus irrelevant, because Dr. Husain’s contractual duties with OSU included providing service and maintaining a high level of clinical competence. The fact that Dr. Husain had responsibilities to OSUP did not remove his responsibilities to the Medical Center, and he was therefore entitled to governmental immunity.
At the Supreme Court
Justice French participated in the appellate decision in the case, and has recused herself from the Supreme Court case. Judge Sylvia Hendon of the First District Court of Appeals has been assigned to sit in her stead.
Ries argues that the Tenth District’s overly broad opinion would extend the cloak of state immunity to all professional activity at a state university teaching hospital, whether or not employees are engaged in a state function. The OSUP is strictly a private corporation, which governs every aspect of a doctor’s employment, and does not function as a state agency. Physicians who practice under its auspices receive benefits as if they were in private practice.
This overly broad reading of the immunity statute exceeds the boundaries of a state entity’s authority and uncouples immunity from any governmental purpose. Most troubling to Ries is that the ruling narrows the remedies of medical negligence victims being treated by such physicians, denying them the right to a trial by jury and other remedies not available in the Ohio Court of Claims.
In order for a physician in Dr. Husain’s dual-capacity position to claim government immunity, Ries contends that the doctor must be engaged in education-related activity (such as instructing a resident) at the time the allegedly negligent conduct occurred. Ries cites to extensive case precedent that indicates that where the physician is not engaged in teaching or teaching-related activity, and where the financial arrangement is such that the physician is practicing pursuant to and compensated primarily through a separate contract with a private practice plan, immunity is not warranted. Further, the OSUP is a private corporation which operates independently from the Medical Center. Merely because OSUP has a relationship with the Medical Center does not mean OSUP employees are automatically entitled to state immunity.
Amicus in Support of Ries
The Ohio Association for Justice filed a brief in support of Ries, and will share time with him at oral argument. The OAJ argues that the Supreme Court of Ohio should not expand the scope of immunity any further. If the Court affirms the lower court decisions in this case, the Association fears that the result would de-incentivize individuals to act as reasonable people should – with a healthy fear of being liable for their own negligence. Further, such a result would add a burden on Ohio taxpayers by transferring the insurance risk away from the private insurance market, and diminish the role of juries in Ohio’s civil justice system.
The Ohio State University Medical Center’s Argument
OSU bluntly urges the Court to dismiss this case as improvidently accepted in view of the case’s fact-bound nature and the Medical Center’s changed employment structure since the incident. Medical Center employees no longer have contracts with OSUP; by June 2013, they will all exclusively be employees of the Medical Center.
Alternatively, OSU argues that the Medical Center’s patient-care mission is inseparable from its educational mission; in order to provide a proper learning environment, teaching hospitals must maintain a patient base, even when students are not present. The lower courts properly found that Dr. Husain was providing OSU–mandated clinical care when he was treating McNew.
Further, OSU argues that the OSUP was created by the Ohio State University Board of Trustees to facilitate the employment of physicians as educators at the Medical Center. OSUP existed solely to bill and collect professional fees for all faculty services. When Ohio State hired Dr. Husain as a clinical professor, it required him to practice medicine through this entity. Therefore, Husain was clearly acting within the scope of his state employment when he treated McNew, and was at all times protected by state immunity.
Ries’s Proposed Proposition of Law
A physician whose state employment duties are education-related must be shown to be engaging in education-related activity at the time he allegedly renders negligent care in order to qualify for civil immunity pursuant to R.C. 9.86 and R.C. 2743.02(F).
The Medical Center’s Proposed Counter Propositions of Law
I. When an immunity case is strictly fact-based and when the contracts at issue in the case will no longer govern any state employees, the case should be dismissed as improvidently accepted.
II. For purposes of personal immunity, a state-employed physician acts within the scope of his employment if the physician’s actions are within the duties prescribed by his employer.
Key Statutes and Precedent
R.C. 9.86 – Immunity of public officers and employees.
R.C. 2743.02(F)-Determination of Immunity
Theobald v. Univ. of Cincinnati, 111 Ohio St. 3d 541, 2006-Ohio-6208 – For the purposes of personal immunity, the question of scope of employment must turn on what the practitioner’s duties are as a state employee.
Student Contributor: Elizabeth Chesnut