Personal Injury Law

No Day in Court: Tort Deform, Judicial Activism, and the Sad Case of Keith Theobald

By William Eadie

You're driving down the highway when, suddenly, the car in the lane next to your clips another vehicle, swerves into your lane, and sends you careening across three lanes of traffic, your car flipping into the woods as you're ejected from the vehicle. You're discovered, barely alive, by rescue crews who located your driverless vehicle. You awaken in the hospital, paralyzed from the waist down, but alive and ready to face the future with the support of your spouse and your children.

Then everything gets much worse.

Going in for surgery on your back, you wake up to total blackness—completely blinded from the surgeon's medical mistake. Imagine blindness for a moment. Go ahead, close your eyes and picture all the steps you'd have to take just to get to your car, to get home or to work or school. To never be able to see you children again, to never see a television show or a movie. Now, imagine facing this while having to cope with recent paralysis, learning to live in and operate a wheelchair without your sight. This tragic medical mistake is exactly what the civil justice system helps to prevent and, as much as possible, recompense: by allowing an injured party to seek justice in an impartial court, with a jury of your peers.

Except, that is, if you're Keith Theobald, who lived through this exact, horrendous experience, but never got that day in court to face the doctor who blinded him. Rather, a 'conservative' Ohio Supreme Court decided that the surgeon was immune from liability for negligence because he was a state employee at a teaching hospital (full opinion pdf). Despite the fact that the doctor was running a personal practice, wasn't teaching at the time, took in the fees charged for the surgery, and Mr. Theobald never knew that by stepping into a teaching hospital, he had given away much of his right to protection under the civil justice system.

Justice Paul Pfeifer, the lone dissent, made a strong case for this being a controversial new way to interpret long-established law, despite the supposedly conservative court.

This is the face of the conservative tort 'reform': limiting recovery for legitimate victims. I shouldn't even call it conservative, since it is antithetical to true conservative values. Don't assume that, just because you don't live in Ohio, this doctor-immunity issue can't affect you. Insurance and hospitals' lobbyist groups have already gotten a bill introduced and through the Florida Senate that would completely immunize emergency-room doctors (which is a little hypocritical). Georgia has long had this type of immunity, but lawmakers are trying to make it more fair to injured parties by eliminating the need to show 'gross negligence.' Previously, some GA lawyers simply wouldn't take cases from the ER—which means the Tort Deform movement had succeeded in keeping legitimate claims out of the courtroom.

Some experts in the field have even advocated for a federal cap (pdf) on damages, based only on the conclusion that this would lower the cost of healthcare—on the backs of injured patients. Of course, we know the single best way to lower the cost of healthcare is to reduce malpractice.

Special thanks to the intrepid reporter who broke this story at WCPO in Cincinnati, Hagit Limor. See her full coverage and more interviews here.

What do you think about the Theobald ruling? About medical malpractice damage caps? With two Ohio Supreme Court candidates pledging to bring balance back to the court, is there hope for Ohio? Leave a comment below!

Full post as published by Cleveland Personal Injury Lawyer on May 21, 2010 (boomark / email).