Dr.'s immunity as state employee not lost by 'billing patient'.

CASE ON POINT: Theobald v. University of Cincinnati, 857 N.E.2d 573 -OH (2006)

CASE FACTS: Keith Theobald was seriously injured in a motor vehicle accident. He was taken to University Hospital (University). Dr. Frederick Luchette, the attending trauma surgeon on duty, began treating the patient. He contacted the hospital's neurotrauma department. The patient's care was assigned to Dr. Jamal Taha, the Interim Director of University's Neurotrauma Team. Because of the extent of the patient's injuries, Dr. Taha called Dr. Andrew Ringer, University's Chief Neurotrauma Resident. They determined that surgery was necessary. Drs. Taha and Ringer met with the patient's family and obtained consent for the surgery. Prior to surgery, a student nurse anesthetist, Amy Wehrman, prepared a preanesthesia note setting forth the patient's history and physical condition. Maureen Parrott, a Certified Registered Nurse Anesthetist (CRNA), reviewed Wherman's note and discussed the plan for administering anesthesia with Wehrman and Dr. Harsha Sharma, the anesthesiologist assigned to the case. The patient underwent ten hours of surgery in which Dr. Luchette, assisted by Dr. Steven Giss, a trauma resident, opened and closed the incision, and Dr. Taha, assisted by Wehrman, administered anesthesia and monitored the patient's condition. When the patient awoke after surgery, he could not see, had lost the use of his right arm, and had little mobility in his left arm. In October 1999, the patient and his wife filed a suit for medical malpractice against Drs. Luchette, Taha, Sharma, and Parrott, among others. They alleged that the defendants were negligent in providing medical care to the patient during and after his surgery. The defendants claimed that as state employees, they had personal immunity under Ohio law. The trial court stayed the suit to allow the Court of Claims to determine whether the defendants had immunity. The Theobalds filed suit against University to determine the issue of the personal immunity of the defendant physicians. The Court of Claims determined that although Drs. Luchette and Sharma were employed by the state, they were acting outside the scope of their employment when they treated Theobald because their private-practice practices billed him, and they were paid for their services. The Court of Claims also concluded that Drs. Taha and Parrot were not state employees because they worked for and were paid by private corporations that merely contracted with the state. University appealed. The District Court of Appeals concluded that all four individuals were "employed by the state and reversed and remanded the case for the Court of Claims to reconsider whether each defendant was acting manifestly outside the scope of employment when the alleged negligence occurred. University appealed.

COURT'S OPINION: The Supreme Court of the State of Ohio affirmed the judgment of the Court of Appeals and remanded the case for trial. The court limited the determination of whether the defendants were acting within the scope of their state employment when the patient was allegedly injured. The court observed that the plaintiffs acknowledged that the University had immunity from liability, regardless of the issue as to the physician-defendants. The court held, inter alia, that in a suit to determine whether a physician or other health-care practitioner is entitled to personal immunity from liability under Ohio law, the court must initially determine whether the particular practitioner is a state employee. If there is no express contract of employment, the court may require other evidence to substantiate an employment relationship with the state, such as financial and corporate documents, W-2 forms, invoices, and other billing practices. If the court determines that the particular practitioner is not a state employee, the analysis is completed and personal immunity does not apply. If the court determines that the practitioner is a state employee, the court must next determine whether the practitioner was acting on behalf of the state when the patient was alleged to have been injured. If not, then the practitioner was acting "manifestly outside the scope of employment" for purposes of personal immunity.

LEGAL COMMENTARY: If there is evidence that a practitioner's duties include the education of students and residents, the court must then determine whether the practitioner was, in fact, educating a student or resident when the alleged negligence occurred. A practitioner who has dual status as a private practitioner and as an employee of a state medical institution is potentially immune from liability for medical malpractice only when he or she is performing duties for the state. Unless the employee of a state medical institution has acted "with malicious purpose, in bad faith or in a wanton or reckless manner," or manifestly outside the scope of employment, personal immunity is applicable. Years ago, courts analyzed billing procedures as well as other financial factors, including the comparison of a practitioner's financial gain, with the state institutions financial gain from medical treatment. However, that is no longer the case. Courts now focus on the physician's role at the time of the treatment in question ando place less emphasis on financial factors. The court rejected the plaintiffs' request to adopt a bright-line test based on a health-care practitioner's billing practices to determine whether the practitioner's actions were manifestly outside the scope of employment. A dissenting opinion was filed.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.