Another Liability Limitation

Taken from press accounts at this link.

The Ohio Supreme Court ruled that doctors who sign with a state university are state employees and cannot be sued even in their private practices.

CINCINNATI -- The Ohio Supreme Court has enacted a monumental change that impacts doctors and patients, shifting malpractice judgments from doctors’ insurers to the taxpayers.

The ruling means your private doctor can make a serious medical mistake - take off the wrong leg, operate on the wrong side of your brain - and you can never sue him in a jury trial.

It’s a huge departure from any other state, called the Theobald ruling after Keith Theobald, a man who cringes at the precedent he set for all of us.

Theobald was a healthy, fit husband and father of two young children, when an elderly driver clipped his pickup truck as he was driving to work on I-275, approaching Montgomery Road 11 years ago.

The impact flipped the truck across all lanes of the highway into a field, crashing in a stand of trees. Rescue workers found Theobald hanging upside down in a tree. He was paralyzed from his chest down.

Theobald and his wife, Jacqueline, took the news in stride. “I remember pre-operatively we said, ‘You can still do basketball with Jake (his then 5-year-old son) and watch TV and share things with the kids. We’ll get a van and we’ll adapt it.’”

Keith Theobald agreed. He felt he could still work and live a full life. “I could do about anything. The wheelchair doesn’t hold you back.”

Theobald could see and use his arms after the accident. He was alert and ready the next day when doctors at University Hospital suggested surgery might improve his back injury.

Instead, he woke up in a different world. Not only was he still paralyzed, but now he also was blind and had lost the use of his arms. The Theobalds say medical records prove a series of mistakes during surgery led to oxygen deprivation and injuries worse than the accident had caused.

Trapped in darkness and unable to move on his own, Theobald will need round-the-clock care the rest of his life. He sued the doctors who did the surgery, only to get this devastating shock: The doctors weren't liable. They had immunity from all malpractice claims because they had students in the room with them.

“I never heard of such a thing!” Keith says. “We never got our day in court,” adds Jacqueline.

NEW RULING

Attorneys and at least one Ohio Supreme Court Justice say what’s happened as a result of the Theobald case has changed the course of doctor-patient relationships in Ohio. Attorney John Metz says, “I think it’s absolutely shameful in the United States to sit by and let this happen.”

It boils down to this. In the Theobald case, the Ohio Supreme Court ruled that doctors who sign with a state university like the University of Cincinnati to let medical students learn from them, even if that just mean one student walking in the room for a second, now are considered state employees. As such, they get immunity if anything goes wrong on the job, even in their private practices.

When you see that . . . your laws no longer protect you against them but protect them against you . . . you may know that your society is doomed.
-Ayn Rand

Metz calls that unconscionable. “It’s not fair if you go to a private doctor and you have nothing to do with a public institution, how you can somehow have given away your constitutional rights” to recovery at a jury trial.

Jacqueline Theobald says, “The state didn’t come in and take care of Keith. The university didn’t come take care of him. This doctor took care of him. We’re suing the doctor.”

But the Ohio Supreme Court said they couldn’t sue the doctor. It affirmed a ruling by the Tenth District Court of Appeals that held that because some students were in the operating room, the doctors the Theobalds hired to do the surgery were teaching per their State of Ohio U.C contracts. Therefore those doctors were not liable for any mistakes. Instead, the Supreme Court ruled that the Theobalds belonged in the Court of Claims, a separate court set up in 1980 to handle suits against the state, usually against public state employees like highway workers, never ‘til now protecting private doctors in their private practices.

Going to the Court of Claims means giving up much that is available if you sue in regular county courts. In the Court of Claims, no juries are allowed. Single judges, hired by the state, issue rulings for or against the state. The top award is $250,000, no matter the severity of the damages. Most importantly, the taxpayers foot the bill, not doctors’ malpractice insurers who must pay when suits are filed in county courts of common pleas.

THE CONTROVERSY

Of the seven justices of the Ohio Supreme Court, all of whom are Republican, six voted to protect the doctors and their contracts with U.C. One dissented. Justice Paul Pfeifer calls the decision “a radical departure.” He says his fellow fellow judges changed the law, intended for public state workers. “Privately engaged doctors who have a private practice suddenly can hide under the umbrella of the university.”

We asked for interviews with all the justices, as well as with University Hospital and U.C. None would agree. In statements and court documents they claim they’re just following the 1980 law and that patients still can sue in the Court of Claims, despite the caps and loss of opportunity for a jury. They claim their need to educate future doctors and nurses outweighs patients’ arguments.

The Chairman of the Ohio House Civil and Commercial Law Committee disagrees. Representative Mark Okey says, ”I can see how this Theobald decision could be abused. It could be utilized to game the system. (Doctors could say) ‘You know, it makes economic sense. We don’t have to pay as much in our premiums for private malpractice insurance or liability insurance if we can slough off our liability onto the state of Ohio.’”

Already, the state’s other public universities with medical schools have taken notice. The I-Team obtained a letter from the University of Toledo to its area doctors, saying “This recent change to the law has extended the definition of a state employee for purposes of malpractice liability… Once your insurer understands the benefits of immunity, they will most likely be very supportive”.

Justice Pfeifer says doctors are sure to rush to their local universities to sign up. As state employees, they now also are eligible for state-subsidized medical and dental insurance, state pensions and other benefits, in addition to what their private practices provide.

But Pfeifer says the doctors aren’t the biggest winners, instead it’s much larger parties. “I think it’s shameful, whether it’s a university or a doctor’s insurance company, when they try to bend around the rules to deny an opportunity for a just result.”

Okey says the ruling not only shifts costs from malpractice insurers to the taxpayers and patients, but that it imperils our entire health care system. “What are we teaching medical students? Are we teaching them how to avoid liability for medical mistakes? Or should we be teaching them good medical practice? I think that’s where we’re putting the public at risk! Because I don’t see this as encouraging good medical practice. That should be the focus of an educator and student.”

Of course, Keith Theobald never knew to ask if a student would be watching his operation, and if so what the impact might be. But if you think doctors from now on will have to tell patients and get consent to have students in the room, you’d be wrong. The Supreme Court ruled the law doesn’t demand disclosure. No one has to inform patients they could lose their rights to sue the doctors without ever knowing it.

Disclosure to Patients?

What did you want? "Informed" consent?

It’s a question Justice Pfeifer asked Assistant Attorney General F.E. Crawford, who represented the doctors and UC against the Theobalds; taxpayers pay for the doctors and university’s legal representation by the state Attorney General’s Office. Justice Pfeifer asked Crawford, “I’m asking you as a lawyer and as a matter of fairness, and as a matter of notice to people, don’t you think that (disclosure to patients) ought to be required?” Crawford answered, “As a matter of fairness, your honor, I don’t think so.”

Pfeifer finds that galling. “The practice of law is supposed to be about achieving justice and fairness. We pride ourselves on trying to have something that’s reasonably predictable for people. For this poor guy (Theobald), it couldn’t be more unpredictable.”

Keith Theobald hasn’t lost hope for a medical miracle. But in the end, he never did get a chance at even the Court of Claims the Ohio Supreme Court said he should access. That’s because the same state attorneys for U.C. who argued that’s the court where the Theobalds belonged, now argued it was too late. The statute of limitations had passed. No recovery, not even $250,000, for Keith Theobald’s lifetime injuries.

Pfeifer calls it an unjust travesty of law. “Talk about David and Goliath, in this case Goliath won,” and not only against the Theobalds, “But everybody else. All the other Davids.”

Statement from The University of Cincinnati:

"It is important to keep in mind that the law in question is part of the Ohio Revised Code (section 9.86) that has been in existence since 1980. As a state institution, we must follow the laws of the state of Ohio.

"The law does not eliminate a patient’s ability to sue for wrongdoing.

"The physicians who hold faculty positions within the university fulfill an extremely important function for the people of the state of Ohio by educating and training future physicians. The six public medical schools in the state are responsible for supplying a significant number of physicians in Ohio and greatly increasing the overall quality of life in our state. We believe the best care is provided in an educational environment."

Copyright 2010 The E.W. Scripps Co. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.