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

7 comments

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!

7 Comments

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  1. Mark Bello says:
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    Bill: This is a “poster child” for the case against tort reform. You should bring the case to the attention of the AAJ. The more we alert the public about these travesties of justice and the real cost of tort reform, the better. If we could just eliminate the “it can’t happen to me” mentality, we could make real progress. It can happen to you, and when it does, you want a legal system that will protect you. Thanks for sharing this important story and my profound condolences to Mr. Theobald and his family. Query: What happened to the auto accident case? Was there a recovery there? Regards, Mark

  2. Nick DiCello says:
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    The civil justice system and tort law in this country are supposed to serve the public to compensate citizens for their injuries, damages and harm caused by another’s negligence. Furthermore, the law is never supposed to discriminate against injured members of our society. That is, as an example, the physician or professional making several hundred thousand dollars per year is entitled to recover his or her lost wages to the same extent as someone making minimum wage. Now in Ohio, however, two people with the same exact injuries, resulting from the same exact misconduct/malpractice/mistake, who happened to, unkowingly even, seek treatment at diffferent types of hospitals, will receive very diferent compensation – some vs. none. In this respect, the tort reformers are right, our civil justice system is turning into a roll of the dice; not for the jackpot award they are always bemoaning, but for justice or injustice.

    Mr. Theobald’s outcome, and the Supreme Court of Ohio’s “interpretation” of the law is best summarized by an entry in Black’s law dictionary – “An unjust state of affairs; unfairness” – the definition of Injustice.

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    Thanks for the feedback–this is a case about which I wish more people heard!

    Mark, I concur that this is a great anti-tort-“reform” case example. As for the judgment, I know there was a “significant” jury verdict, at least in the words of the federal appeals court that affirmed dismissal of Mr. Theobold’s claim against the city for failing to remove the abandoned car that started the chain-reaction accident (read http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=6th&navby=docket&no=03a0191p on that). I have a call in to the attorney who handled Mr. Theobald’s representation to get more info, like whether the person against whom the judgment was returned–the person who abandoned their car on the side of the road–was insured, or judgment proof.

    Nick, great points, and great quote!

  4. Christine Zuniga says:
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    What an outrageous decision! Thanks for sharing this troubling story. It really underscores the importance of a balanced court.

  5. Hagit Limor says:
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    Thank you, Bill, for posting this, and to everyone who reads it, please pass it on to as many people in Ohio as possible. We’re all medical consumers and as such, should be armed with this information as we seek medical care. Make sure you inorm your family members as well.

    Keep in mind, you don’t have to go to a hospital affiliated with a state medical school for Theobald to apply. You doctor in a private setting may have an agreement in place, (no need to disclose to you) that equally excludes him or her from your reach.

    Please send our link to reporters in your area so they may do the story as well. We supplied information to a station in Columbus which aired its version this month. The story is very well-suited for print publications. Community newspapers are always searching for content. Spread the word as far and wide as you can. It’s our social responsibility.

    Hagit Limor
    WCPO-TV

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    Thanks for commenting, Hagit, and thanks again for your work on this story; I’m amazed it is so under-reported. I also like your statement, “we’re all medical consumers.” Too often, I think, currently-healthy people have trouble recognizing that health care will touch their lives at some point (and probably already does with their loved ones).

    Readers, please do pass this along. The link to the complete news coverage is in the post, above.

  7. Keshia Theobald says:
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    My name is Keshia Theobald and I simply wanted to say “thank you for posting my family’s story, the people have a right to be informed!”