As if all the protections in place for doctors were not enough, the expert requirements prior to filing and the caps on damages to victims, a surgeon in northwest Ohio sought to avoid a medical malpractice lawsuit by falsely claiming he was a state employee at the time he performed the procedures in question and therefore should be immune from lawsuits.

The lawsuit arose from two vasectomy procedures performed by the surgeon, which, the plaintiff says, caused him pain, led to additional medical bills, lost wages, and emotional distress. The surgeon claimed immunity because at the time he was performing the surgeries he was being shadowed by a third-year medical student from the University of Toledo Medical School (UT). The surgeon claims that because he was allowing a student to observe his surgical procedure, he should be immune from lawsuits under the general protection provided for state officers and employees under Ohio law.

Although several lower courts agreed with the surgeon’s arguments, the Ohio Supreme Court disagreed. The Ohio Supreme Court noted in Engel v. Univ. of Toledo College of Medicine, Slip Opion No. 2011-Ohio-3375 that a three-part test might serve to determine when a doctor actually is an employee of the state:

  1. Contractual relationship between state and alleged employee
  2. State control over actions of alleged employee
  3. Payment by state for services of alleged employee

The Ohio Supreme Court found that the surgeon in question failed all three tests. The only evidence of a contractual relationship between the surgeon and the state comes from two separate letters confirming his status as volunteer clinical instructor. In fact, the letters note that the surgeon practiced general surgery at a private hospital. The Court also noted that the state exercised no control over the surgeon’s practice, and implied none, other than a vague assertion he had to follow faculty rules and couldn’t connect himself with UT (formerly known as the Medical College of Ohio) without prior authorization from the department chair. Finally, because the surgeon was a volunteer instructor, he received no payment for his services and therefore was not an employee.

If you have been hurt due to a doctor’s error, you may be able to receive compensation for your injuries through a medical malpractice lawsuit. To learn whether you have a case under Ohio’s medical malpractice laws, please contact Robert W. Kerpsack, CO, LPA today to receive a free case evaluation.