dissenting.
{¶ 35} The majority opinion appears wholly concerned with how the scope-of-employment issue affects medical practitioners. Although that concern is appropriate, it should be tempered by at least a suggestion that the concerns of the plaintiff have been considered. The plaintiff in this case is the one who has been grievously injured, not the various doctors and nurses.
{¶ 36} In a case such as this, the doctors will ultimately be determined to be responsible, not responsible, or immune. In any event, the doctors will not suffer unduly; any financial liability they incur will be covered by insurance. The same cannot be said for the plaintiff. If Theobald does not prevail, the lengthy delay will not have prejudiced him. But if he does prevail, the delays will have deprived him of several years during which the money he ultimately receives could have alleviated some of the unfortunate consequences of the negligence he *549suffered. The plaintiff is already seven years into this litigation, and, even after today’s decision, he still does not know which court he should be in.
{¶ 37} The majority opinion does not address the plight of plaintiffs who feel (reasonably) that they must file two lawsuits (one in the Court of Claims and one in the court of common pleas) because it is so difficult to determine which venue is proper. See Johns v. Univ. of Cincinnati Med. Assoc., Inc., 101 Ohio St.3d 234, 2004-Ohio-824, 804 N.E.2d 19. The concern about dual filings is heightened when, as here, multiple doctors are involved because the chances that one of them is a teaching doctor (perhaps entitled to immunity) are greater. This is a nightmare scenario for a plaintiff. When in the Court of Claims, the doctor accused of negligence will be pointing at the empty chair — that is, at the doctor who is susceptible to suit only in the court of common pleas. And when in the court of common pleas, the doctor accused of negligence will be pointing at a different empty chair — at the doctor who is only susceptible to suit in the Court of Claims. This concern is general and not specific to this case, in which it appears that the anesthesiologist is the person most likely to have committed negligence.
{¶ 38} The new test set forth by the majority opinion apparently immunizes a doctor from negligence whenever negligence occurs in the presence of a student. This test is imbued with the fiction that teaching doctors are always teaching. I have the utmost respect for the medical practitioners in this state. Countless Ohioans have been well treated through the years. But doctors are busy professionals, often called upon to make irreversible decisions of the utmost magnitude with little time for reflection, and they make mistakes. When they do, whether they are immune from liability should not depend solely on whether a student is present. Teaching by osmosis is not the same as talking a resident through an operation. The mere presence of a student does not establish that instruction is taking place.
{¶ 39} The facts of this case suggest that, to the extent any teaching was taking place, it was purely incidental. Theobald had been in a terrible automobile accident. He was under considerable physical stress, and the doctors were under considerable mental stress. They needed to act quickly, and they needed to perform at the highest professional level. They had neither the time nor the inclination to teach — they were trying to save a life and as much bodily functioning as possible. In that situation, teaching is not a priority or even a consideration. But under the test set forth today, our state’s highly skilled and trained teaching doctors will be encouraged to make sure a student is available every time they operate. After all, would there be any better way to avoid personal liability for negligence?
*550{¶ 40} The quest for a simple rule should not override logic. Teaching doctors are not always teaching, even when a student is present. Teaching doctors serve two masters — their patient and the university for whom they have agreed to teach. We should not so easily adopt a rule that declares that one of the masters is always dominant. The former rule used by the court of appeals, which focused on financial factors, seems to strike a better balance between the two masters. It allowed judges to determine whether a doctor was serving his or her own interests or those of the state based on a variety of factors. That is as it should be. A doctor who is one percent teaching and 99 percent engaged in private practice for profit should not automatically be granted immunity based on that nominal amount of teaching. Having a student look over his or her shoulder during surgery should not immunize a doctor from personal liability. At the same time, when a doctor is involved in substantive teaching, for example, by guiding a resident doctor through a complicated (or even relatively simple) procedure, the situation is radically different and the teaching doctor should be entitled to immunity.
{¶ 41} Another far-reaching consideration of which the majority opinion appears unaware is cost-shifting. Every time a doctor is granted immunity because he or she is teaching, even if that teaching is incidental, the burden of his or her negligence is transferred to the state. Such a profound change in policy ought not to be arrived at lightly — it should at least be addressed. The real beneficiaries of this cost-shifting are insurance companies because they will pay on fewer claims. And they likely won’t reduce premiums because they cannot know in advance whether any future negligence will occur in the presence of a student.
{¶ 42} This cost-shifting policy change could have been effected by the General Assembly; it has thus far chosen not to do so. But now, the University of Cincinnati, a state entity, wants to have it both ways. (Despite its name, University Hospital is privately owned.) In this case, which was originally filed in 1999, the university argues that teaching during an operation, however incidental the teaching, is within the scope of employment, and, therefore, that its teaching doctors are immune from personal liability. In Johns, 101 Ohio St.3d 234, 2004-Ohio-824, 804 N.E.2d 19, which was also originally filed in 1999, the university made the opposite argument. It stipulated in the Court of Claims that the doctor sued in that case was acting outside the scope of his state employment, even though that doctor supervised an operation that “was primarily performed by a third-year resident.” Id. at ¶ 3. For the state to argue contrary positions in two cases that were filed at the same time concerning similar issues is at best unhelpful and at worst unconscionable. The state ought to be serving the interests of justice, not subverting them.
James P. Sullivan and Douglas C. Holland, for appellants. Jim Petro, Attorney General, Douglas R. Cole, State Solicitor, and Stephen P. Carney, Senior Deputy Solicitor, for appellee. Jerome A. McTague, urging affirmance for amicus curiae, Medical College of Ohio Physicians.{¶ 43} Finally and most important, the majority opinion also fails to consider the issue of a jury trial. When the state is a defendant (as it would be, based on this opinion, whenever a student is present when a teaching doctor commits negligence), no jury trial is allowed in the Court of Claims. R.C. 2743.03(C)(1) and 2743.11. By forcing more cases to the Court of Claims, this opinion effectively prohibits plaintiffs from asserting their fundamental constitutional right to a trial by jury. Section 5, Article I of the Ohio Constitution (“The right to a trial by jury shall be inviolate * * *”). See Arrington v. DaimlerChrysler Corp., 109 Ohio St.3d 539, 2006-Ohio-3257, 849 N.E.2d 1004 (Pfeifer, J., dissenting); State ex rel. Russo v. McDonnell, 110 Ohio St.3d 144, 2006-Ohio-3459, 852 N.E.2d 145 (Pfeifer, J., dissenting).
{¶ 44} I dissent.