Theobald - Reforming Medical Malpractice in Ohio: The Case, the Background, a Survey of State Laws, and Policy Impacts

Abstract

In its recent decision of Theobald v. Univ. of Cincinnati, Ohio's Tenth District Court of Appeals declared that medical practitioners shall have state employee immunity, based on ORC Section 9.86, anytime they treat a patient as long as they act in a dual role to teach an involved student or resident. This immunity takes away any right to sue the practitioner personally for his medical malpractice. Required within this holding, the doctor must have an with a state medical college. However, an employment relationship could encompass anything from a faculty position to something as minimal as a work relationship with a private practice plan closely tied to the state medical college. Also, within this holding, the court held a student or resident's amount of involvement does not matter as long as the practitioner was at the time of treatment. Essentially, teaching may be satisfied as long as the student or resident observes treatment. Finally, the court was explicit in stating that the patient's view of his relationship with the practitioner is completely irrelevant during an immunity determination. Thus, private patients will not be allowed to sue physicians in their private capacity. The Theobald holding runs contrary to the established case of Ohio at the time. The prior was clear that practitioners receive immunity when treating a patient of the state or supervising another's treatment of a patient. Moreover, when the Theobald holding is compared to other jurisdictions' immunity grants, Ohio appears to be an extreme outlier. And even when Ohio is compared to just those states with similar immunity statutes, the Theobald decision is still the outlier. Finally, not only it is difficult to justify the decision through precedent or wisdom among the several states, but there are harsh practical effects that make any policy justification unreasonable. First, a plaintiff's primary forum, in a Theobald-like case, has now been changed from the Court of Common Pleas to the Court of Claims. Second, the change in has reduced the amount of recovery for many plaintiffs through the inflexible cap on damages that applies to suits against the state. Third, the Theobald rule devalues the medical service markets by giving less of an economic incentive to practitioners to follow the standard of care. This novel features of this article are in-depth surveys concerning state employee immunity of physicians while in dual agency. The first looks at the entire progression of Ohio physician immunity law, as created and formed over a 20 year period by the Tenth District Court of Appeals. The second looks at other states' statutes or common governing law and the subsequent rules that are formed through judicial interpretation. The second survey can show how conventional American courts interpret immunity statutes, and thus, show the Tenth District to be an outlier.