On October 17, 2013, the Supreme Court of Ohio handed down a merit decision in Ries v. Ohio State Univ. Med. Ctr., 2013-Ohio-4545. In a 5-2 decision written by Justice O’Donnell, the Court held that a doctor who works for a state medical school is entitled to personal immunity from malpractice when providing clinical care to a patient, even if medical students or residents are not present during the treatment or procedure. Judge Sylvia Hendon of the First District Court of Appeals sat on this case for Justice French. She joined the majority decision. Justice Lanzinger concurred in judgment only. Justice O’Neill dissented, joined by Justice Pfeifer. The case was argued April 10, 2013. Real the oral argument preview of the case here and an analysis of the oral argument here.
Dr. Syed Husain was on the clinical track faculty of the Ohio State University College of Medicine, in the Department of Surgery. His chief responsibilities were providing clinical care to patients and teaching medical students and residents.
Dr. Husain’s Contracts
Dr. Husain had two contracts in this case. One, a letter agreement with the University’s Medical Center, set out the terms of his employment, guaranteed a base salary, required him to treat patients at the Medical Center, and required him to fund his own faculty salary through revenue from clinical patient care. This letter agreement also required him to provide clinical services through a non-profit professional corporation called Ohio State University Physicians, Inc. (OSUP). OSUP was the billing and collection agent of the Medical Center. Dr. Husain had a separate contract with the OSUP, which governed the terms of his personal medical practice, which was required to be at the Medical Center clinics.
The Alleged Medical Malpractice
In September of 2009, Dr. Husain was assigned to staff the colorectal surgery clinic at University Hospital East. Michael McNew consulted Husain at the clinic for an acutely painful hemorrhoid. Husain diagnosed a blood clot in the hemorrhoid, and treated it accordingly. At the time Husain treated McNew, no medical students or residents were present. McNew called the doctor several times following his discharge. Several days later, McNew died of an undiagnosed cerebral hemorrhage caused by a rare form of blood cancer. The administrator of his estate filed this medical malpractice lawsuit.
Court of Claims
The Court of Claims has exclusive jurisdiction to determine if a state employee is immune from personal liability in a tort case. 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, Husain should be granted immunity because one of his 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.
Key Statutes and Precedent
R.C. 9.86 – Immunity of public officers and employees.
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.
Dr. Husain was not in the scope of his employment with the OSU Medical Center at the time of the alleged malpractice because he was not teaching residents or medical students. He was involved in clinical care, which is not, by itself, a function of a teaching hospital. Thus Dr. Husain was not entitled to immunity in this case. Ries argues for a bright line rule—no teaching, no immunity, because that is what makes a state university job different from private practice. Ries argues that a bright line rule is consistent with the Theobald case.
Medical Center’s Position
Dr. Husain’s job as a university faculty member required more than just teaching. His contract with the university required him to provide clinical care to patients like McNew, whether or not students or residents were present. Thus he was within the scope of his university employment at the time of the alleged tort and is entitled to immunity. OSUP is nothing more than a billing and collections entity.
The question of whether a state employee is immune from personal liability in a tort case is a two part determination. Was the individual a state employee, and if so, was the individual acting within the scope of employment at the time of the alleged tort?
In this case it was undisputed that Dr. Husain was a state employee. The key question in this case is whether he was in the scope of his employment. A state employee’s duties define the answer to that question. Were his actions in furtherance of the state’s interest?
Interpreting the Theobald case
The majority first held that in Theobald it had rejected the argument that the use of private practice plans to bill and collect payments for services provided by clinical medical school faculty meant the physician had acted outside the scope of state employment. While financial arrangements may be relevant, they are not determinative of the scope of employment question. Key to determining scope of employment is what the doctor’s duties were and whether the doctor was engaged in those duties at the time of an injury.
Theobold did not create a bright line rule that immunity attaches in providing clinical care only when the clinician was teaching a resident or medical student. In this case Dr. Husain was contractually obligated to provide clinical services at the Medical Center facility as part of his employment. And the Supreme Court agreed that clinical practice advanced the interests of the state by treating patients at a Medical Center clinic, which contributed to the reputation and national ranking of the medical school, and generated revenue that supported the academic mission of the university. Dr. Husain was properly entitled to personal immunity in this case.
Justice O’Neill criticized the majority for extending governmental tort immunity to private corporations that “utilize state facilities for a profit.” He agreed with the specific holding of Theobald that a doctor engaged in a teaching function is entitled to personal immunity for a tort claim. But he would not extend that immunity for acts unrelated to educating students. “Clearly, while educating is a legitimate function of the state, competing with private hospitals is not. Providing universities and doctors who operate in university hospitals with an economic edge is contrary to precedent and not a function of the judiciary…I understand and embrace immunity for the purposes of training our doctors of the future. That is a legitimate state activity. Creating an insurance-friendly environment in which for-profit corporations can find a safe haven is not,” O’Neill wrote. Justice Peifer joined this dissent.
The use of professional corporations for state-employed physicians has long muddied the waters of immunity determinations in medical malpractice cases (I used to practice in this field back in the day). The Attorney General’s brief in this case on behalf of the Medical Center indicated that at the initiation of the OSU Board of Trustees, the Medical Center no longer has its physicians sign contracts with the corporation. Rather, going forward, they will practice medicine solely as Medical Center employees (according to the brief this policy change was to be fully effectuated by June, 2013).
I called this case for the state, anticipating a dissent by Justice Pfeifer and probably Justice O’Neill. Justice O’Neill has been joining Justice Pfeifer of late in skepticism over governmental tort immunity (see, Pauley merit decision analysis.)
I noted that “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.” At oral argument, Chief Justice O’Connor asked a series of questions suggesting she was buying the state’s argument, while Justice O’Neill’s questions telegraphed the position he took in his dissent.