CINCINNATI - Chances are, your doctor spends a lot of money on medical malpractice insurance. But a case before the Ohio Supreme Court could shift the cost of some doctors' mistakes from insurance companies to you, the taxpayer.
Millions of dollars are at stake as Ohio's highest court considers this case. It builds on a giant leap the Supreme Court took in 2006, with the case of a local man, Keith Theobald.
Theobald was a healthy, fit father of two, when another driver caused a chain reaction crash on I-275 in Montgomery that left him paralyzed. But surgery the next day cost him more. He woke up blind.
Theobald sued the doctors, alleging oxygen deprivation forced him to need round-the-clock care. In the end, the Ohio Supreme Court ruled that because the doctors had signed an agreement with the University of Cincinnati medical school to let students observe as they operated, those doctors were determined to be "state employees" who get immunity from lawsuits if they make mistakes. The ruling means that in some cases patients now have to sue the state rather than the doctor. Even if you successfully sue the state for your doctor's mistake, the most you can receive is $250,000, and that comes from the taxpayers, not the doctor or his insurer.
This month the court considered a new case that experts say could add up to 8,000 Ohio doctors to the ones already getting immunity.
"It would be huge. It would have a very large, significant financial impact and be a drain on the general fund of the state of Ohio," said Attorney John Fisher.
Fisher represents a Henry County man who sued his doctor. The patient didn't know the doctor had signed as a volunteer with the University of Toledo Medical School to let the school's students watch him operate. The doctor's attorney, Susan Healy Zitterman, says even 'though the doctor is an unpaid volunteer, he deserves immunity too.
Zitterman told the justices, "Having thus been appointed by the university and acting in the course of his officially assigned duties at the time of the care and treatment here, he was an officer or employee as the statute is defined."
New Supreme Court Justice Yvette McGee Brown answered with, "So if we accept what your position is in the pleadings, what we do then is we take what could be the liability of the private insurer and transfer that to the taxpayers of Ohio."
That's what the appeals court says to do, to let doctors who get paid or just volunteer at public hospitals become immune even in their private practice.
"We could conceivably be bringing in all of their mistakes that occur when no student is present," said Supreme Court Justice Paul Pfeiffer.
The Ohio assistant attorney general in charge of this case agrees. "You don't want a situation where agencies and institutions are out there and wake up one morning and are told that in fact there are 8,000 additional people who are on their ranks who were never there," said Alexandrea Schimmer.
But that's what could happen if the Supreme Court agrees to uphold this decision, further expanding the number of doctors who get immunity but don't have to tell their patients they're immune. Fisher says, "A physician has no duty to tell a patient, 'You know, I work for the state. I'm an employee of the state. I'm an officer of the state. I'm going to be immune if I mess this up. There's no obligation according to this court to tell someone that.'"
The Supreme Court could take weeks or months to issue its decision. In the meantime, anyone seeing a doctor should ask: Do you have a teaching deal with a state medical school like the one at the University of Cincinnati? And if you do get injured, and consult with a lawyer, malpractice attorneys tell us your lawyer should file two lawsuits, one against your doctor in Common Pleas Court and another against the state in the Court of Claims, to make sure your case is heard one way or another.
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