Update: On October 17, 2013, the Supreme Court handed down a merit decision in this case. Read the analysis here.
On April 10, 2013, the Supreme Court heard 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 for physicians employed by both the state and a private corporation.
Michael McNew was treated for a hemorrhoid by Dr. Syed Husain at the colorectal surgery clinic of the Ohio State University Medical Center (the Medical Center). 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 Medical Center are also required to be employed by a private practice non-profit corporation—in this case by the Ohio State University Physicians, Inc. (The 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.
In this case the 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 because one of Dr. Husain’s duties as an Ohio State employee was providing clinical care, and he was engaged in such care when he treated McNew. The Tenth District Court of Appeals affirmed. Read the oral argument preview of the case here.
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 – This was also a dual-employment (private corporation and state university) case. 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. In the particulars of this case, the Court held that if the doctor is engaged in the teaching of residents at the time of the tort, the doctor is entitled to 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 sat for her.
Dr. Husain had two jobs—one with the Medical Center, the other with the Corporation. His job with the Medical Center was governed by a five page letter agreement, while his job with the Corporation was governed by a detailed twenty page contract. Those documents show that in this case, Dr. Husain was outside the scope of his college teaching contract, and totally within scope of employment with the Corporation. The Corporation controlled the doctor’s hours and assignments, controlled his pay of $140,000 plus bonuses, based on how much the Corporation made, governed his sick and vacation pay, and paid his malpractice insurance premiums. (Dr. Husain also received a $50,000 salary from the Medical School.) The Corporation also had the power to fire a doctor, who could still remain on the faculty of the medical school. Dr. Husain was clearly working for the Corporation when this tort occurred, and was not entitled to immunity.
It was undisputed in this case that Dr. Husain was not engaged in a teaching function when the alleged malpractice occurred. No residents were present at the time. Since Theobald held that a doctor should be granted immunity if a student is present at the time of the tort, the Court should take the next step and hold that if a resident is not present, and the doctor is not engaging in the teaching function by teaching, supervising, or controlling a resident, the doctor should not get immunity. It’s that simple. If the doctor is teaching, the case goes to the Court of Claims, but if not, it goes to the Common Pleas Court.
Counsel for amicus OAJ shared time with plaintiff’s counsel, and argued that the manifest weight of the evidence in this case clearly established that the doctor was manifestly outside the scope of his state employment, and the case can be reversed on the simple application of Theobald.
The Ohio Solicitor General argued this case personally for the state. She argued that Dr. Husain was not a private doctor, and had no private patients, but rather was a full time doctor at the Medical Center. Treating patients was within the scope of his university employment—in fact, it was required by his university employment, not by the contract with the Corporation. It made no difference if residents were present. Nothing in Theobald says that teaching is required in order for immunity to attach. It is a black letter principle of agency law that in order to determine scope of employment—which Theobald requires on a case-by-case, fact specific basis—one must look to the duties prescribed by the employer. Theobald did not say that teaching is required regardless of the other duties that are established. In this case it was abundantly clear that treating patients was one of those state-required duties. Just because doctors have duties other than teaching doesn’t mean they are outside the scope of their employment when they are performing these other duties.
The Corporation is just an administrative construct. It is the billing and collection agent for the Medical Center. It is a non-profit organization, which exists entirely to serve the University. Any payment from the Corporation is for Dr. Husain’s work for the Medical Center. Dr. Husain’s salary from the Corporation is paid from patient fees, while his salary from the Medical Center comes from other sources.
What Was on Their Minds
Both sides agreed that Theobald applied. And both sides agreed that there were no students present at the time this incident occurred.
Justice O’Donnell pretty much said it all, when he asked if the state was interpreting Theobald differently from plaintiff’s counsel—the state as a scope of employment case, the plaintiff as a teaching case? What additional law should the Court write? He also asked, as he had the day before in another medical malpractice case involving the admissibility of medical bill write- offs, if there was confusion in the practicing bar about the application of Theobald.
Justice Lanzinger also asked if plaintiff’s counsel was taking the position that Theobald be limited to say that in order to be granted immunity a doctor had to be teaching at the time the time the negligence occurred. (Yes, he was. Or supervising or controlling the residents.)
In one of the day’s most interesting questions, Justice Lanzinger asked even if there were no separate corporation should Theobold apply only when a doctor is teaching or when a student is present? (amicus counsel, who was asked this question, ducked it twice).
Justice Pfeifer, who dissented in Theobald on the ground that the mere presence of a student does not mean teaching is going on, (which to him it wasn’t in that case,) suggested that Theobald had created a simple rule-if teaching, Court of Claims, if not, Common Pleas court. The plaintiffs hadn’t liked this but had learned to live with it, and so should the state.
Which Master Was the Doctor Serving Here?
The doctor wasn’t billing patients separately, was he, asked Judge Hendon (answer: no)
Did the doctor give up the right to see patients outside the Medical Center, asked Justice Lanzinger?
Why should a doctor who is being paid by a private corporation, who is not teaching students, be entitled to immunity at the time of the tort, asked Justice O’Neill? Why would he be entitled to immunity if he was not performing a state function at that moment? (ah, but he was, replied the SG; treating patients was required by his contract with the Medical Center, not the Corporation).
The Doctor’s Required Duties
Doesn’t a doctor have to keep up his clinical skills in order to be a better teacher, asked Chief Justice O’Connor? Wouldn’t Dr. Husain’s participation in the Corporation make him a better teacher at the Medical School? In order for a doctor to keep up his teaching skills in a clinical setting, wouldn’t he have to practice medicine? How can that function be separated from being a clinical professor? He was treating patients in order to be able to teach medical student how to do this, whether that was in the contract or not, she said.
And later, in a key semi-question, semi-comment which seemed to telegraph her position, the Chief said, as long as a doctor is within his contractually defined scope of employment with the Medical Center, he is entitled to immunity. As long as treating patients is part of his university employment, he is entitled to immunity.
What is the scope of the doctor’s employment with the Corporation, asked Justice Pfeifer, musing that was where most of Dr. Husain’s salary came from. (he had no separate duties to the Corporation, replied the SG)
If the Corporation pays the doctor on behalf of the Medical Center (which the SG alleged), then why also have a contract with the Medical Center, asked the Chief? (just an administrative issue—different sources of funds for different tasks, said the SG) So it’s just a matter of sourcing of funds, not responsibilities, asked the Chief?
Those Talismanic Students
Didn’t the Court say in Theobald that if students were present, there would be objective evidence of instruction, and immunity would apply, asked Justice O’Donnell? Was it an oversimplification to talk about student presence?
Isn’t there always the chance a student might be present during a procedure, Judge Hendon asked?
Was there any evidence in the record about how much of his time Dr. Husain spent teaching, asked Justice O’Neill? As opposed to treating patients without students?
In a key question of the day, the Chief asked, so the teaching is really a red herring in this case? (yes, said the SG)
How it Looks from the Bleachers
This looks like a win for the state, although Justice Pfeifer will surely dissent, and maybe Justice O’Neill will join him. While it is true that in Theobold it was teaching that got the doctor immunity, that case (authored by now-retired Justice Stratton) does not say a doctor has to be teaching to get immunity, and I don’t think the Court is going to hold that. Teaching is a function that could, but surely isn’t the only, function that bestows immunity. I think the SG will prevail on the point that Theobald is a scope of employment case, that Dr. Husain’s clinical practice was part of his required duties as a professor at the medical school, and that he was clearly performing a required duty, and a state function—seeing patients at one of the Medical Center clinics—when the alleged malpractice occurred. Chief Justice O’Connor asked most of the questions about this, and seemed clearly to favor the SG’s interpretation of Dr.Husain’s clinical practice as a state function. With or without students.
Despite the appeal of the plaintiff’s argument about all of the Corporation’s seeming control over Dr. Husain, I thought the SG did an excellent job explaining the interface between the Corporation and the Medical Center—that in short, everything required by the corporate contract was to fulfill Dr.Husain’s obligations as a professor at the Medical Center. Frankly, I’ve long wondered why these things were set up in this dual capacity way(I’m not a tax or a corporate person) but this dual hats way of doing business certainly has caused endless and lengthy litigation.
One of Justice Pfeifer’s chief complaints in dissent in Theobald was the effect all this has on the plaintiff—the endless hoops, the double effort, the frustration, the delays. I was thus very interested to read as part of the state’s brief (which was not argued) that this all should be moot, at least in this case, because as of June 2013, Medical Center employees will no longer have contracts with OSUP; by June 2013, they will all exclusively be employees of the Medical Center. That should cut down on this type of litigation, at least at OSU. The brief didn’t discuss what is happening elsewhere. Even though plaintiffs historically prefer not to go to the Court of Claims (no juries, no elected judge, damages caps, hard to win cases) at least they’ll know a lot sooner and with less litigation that they have to go there.
Student Contributor Elizabeth Chesnut disagrees with me on this one. She agrees that the case involves the interpretation of Theobald, but she thinks the Court is not going to extend immunity in this case.