April 16, 2014
Personal Immunity

by Justice Paul E. Pfeifer

On September 15, 2009, Michael McNew came to the Ohio State University College of Medicine to consult with Dr. Syed G. Husain. Dr. Husain was an assistant professor on the clinical track who had the primary responsibilities of providing clinical care to patients and teaching medical students.

McNew complained of an acutely painful hemorrhoid, nausea, diarrhea, sore throat, and fatigue. Husain diagnosed a blood clot in the hemorrhoid, incised it, removed the clot, and prescribed a narcotic for pain.

Although a medical student or resident was present at the clinic that day, Husain could not remember whether one had observed this treatment.

Afterwards, McNew called Husain more than once seeking help with pain management and allegedly complained of bleeding, bruising, and shortness of breath. Husain could not recall whether a medical student observed the telephone consultations.

Sadly, McNew died on September 19 – from an undiagnosed cerebral hemorrhage.

A year later, Cyrelle McNew – Michael’s wife – and Matthew Ries, the administrator of his estate, filed an action against the university asserting claims for negligence, medical malpractice and wrongful death. They also filed a civil suit against Husain, but the Court of Claims stayed that claim pending a determination regarding Husain’s immunity from suit.

The personal immunity of a state employee is governed by an Ohio law that says no “employee shall be liable in any civil action ... for damage or injury caused in the performance of his duties, unless” his actions were outside the scope of his employment, or unless he acted with malicious purpose or in a wanton or reckless manner.

The law vests the Court of Claims with exclusive jurisdiction to determine whether a state employee is immune from personal liability in a civil action. The court conducted a hearing and concluded that Husain’s duties included teaching, but found that “the evidence does not demonstrate that he was doing so when the alleged negligence occurred.”  Nevertheless, the court determined that he was acting within the scope of his state employment while treating McNew and concluded that he was therefore immune.

The court of appeals affirmed that ruling, and then the case came before us – the Ohio Supreme Court.

In a 2006 case called Theobald v. Univ. of Cincinnati, our court held that a doctor working for a university is immune from personal liability if he is educating a student when the negligence occurs. Prior to Theobald, Ohio courts were consistent in their holdings that a student had to be present in order for there to be immunity for the doctor. In Theobald, our court acknowledged that the focus of the analysis needed to be on the scope of employment with the state on whether the physician was engaged in those duties at the time of the injury.

But, by a five-to-two vote, in this case our court determined that even if no medical student observed the clinical services Husain rendered, Husain’s clinical practice advanced the interests of the state because he staffed a faculty clinic and treated patients at the university medical center, he contributed to its national ranking and reputation, and he generated revenue that supported the academic mission of the university.

The majority concluded that Husain was providing services within the scope of his employment as a faculty member and a state employee. And because he treated McNew in that capacity, he was – according to the majority – entitled to personal immunity.

Justice William M. O’Neill and I cast the dissenting votes. In his dissent, Justice O’Neill wrote, “This case represents a very dangerous precedent. The majority has needlessly expanded on this court’s holding in Theobald, and in the sweep of a pen has extended governmental” immunity to private corporations that utilize state facilities for profit.

“The taxpayers of Ohio are well served, and the doctors who educate our future physicians are well served, when there is an acknowledgement that they are doing the state’s business when they are teaching student doctors in a state-university setting.”

But, as Justice O’Neill pointed out, the majority abandoned that rule and adopted a standard “that allows the university to decide and declare by contract that all of a physician’s duties, no matter how far they may be removed from educating students, are entitled to state-sanctioned immunity.”

That’s the wrong approach, and the net result is that the burden of paying for negligent acts will transfer from private insurance companies to the taxpayers of Ohio.

The bedrock principle that this court should uphold is that in the absence of a student, a procedure performed by a physician should not be protected by the doctrine of immunity. State universities exist to educate. If education is not taking place, immunity does not apply.

Clearly, while educating is a legitimate function of the state, competing with private hospitals is not. Providing universities and the doctors who operate in university hospitals with an economic edge is contrary to precedent.

“Based upon the majority’s opinion, state university teaching hospitals can now provide independent medical care separate from their status as teaching institutions, and while doing so, their physicians will enjoy the benefits of immunity.”

With this decision, “hospitals run by state universities and staffed by physicians who work for private for-profit corporations have a huge competitive advantage over private hospitals. They are able to limit their damage exposure due to lower caps in the Court of Claims, while also eliminating jury trials, yet operate in all other ways like the private hospitals that they compete with.

“Stated more precisely,” Justice O’Neill concluded, “a state-university doctor will no longer be held to the same standard of care that is applied to his colleagues down the street in a competing facility not owned by the state. I understand and embrace immunity for the purpose 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.”

Nevertheless, the majority concluded that Husain was entitled to personal immunity, and affirmed the court of appeals’ judgment.

EDITOR'S NOTE: The case referred to is Ries v. Ohio State Univ. Med. Ctr., 137 Ohio St.3d 151, 2013-Ohio-4545. Case No. 2012-0954. Decided October 17, 2013. Majority opinion written by Justice Terrence O'Donnell.