# Willitzer v. McCloud > Ohio Supreme Court · September 7, 1983 · 6 Ohio St. 3d 447 URL: https://www.frixlaw.com/law-library/cases/6758174 ## Case - **Full name:** Willitzer v. McCloud - **Court:** Ohio Supreme Court - **Decided:** September 7, 1983 - **Citations:** 6 Ohio St. 3d 447; 6 Ohio B. 489; 453 N.E.2d 693; 1983 Ohio LEXIS 853 - **Precedential status:** Published - **Opinion:** Concurrence by Brown - **Judges:** Brown, Celebrezze, Eighth, Holmes, Locher, Pryatel, Sweeney - **Cited by:** 78 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6758174 ## How later opinions describe it (automated extraction) - stating, under a prior version of workers’ compensation scheme that an independent physician examining workers’ compensation claimants, at the request of the commission for the purpose of reporting their medical conditions was performing an “investigative-medical fact-finding … - concluding that the litigation privilege shielded a physician from liability arising from his testimony in judicial proceedings but not from claims arising from the manner in which he conducted examinations ## Opinion text Clifford F. Brown, J., concurring. Stripping absolute immunity from civil suit for an independent physician examining workers’ compensation claimants for the purpose of reporting their medical conditions is a just •result. It is long overdue, supported by a thorough analysis of the facts and existing law on immunity, and leaves undisturbed judicial immunity as well as those immunities related to testimony at adjudicatory proceedings and involving quasi-judicial officers. This decision is generated by a festering evil at the Industrial Commission, where a small minority of physicians, to whom the commission refers claimants for examination and report, are willing to sell their expertise for a substantial price. That fourteen plaintiffs, whose claims are unrelated to each other in this case, are claiming damages for insufficient medical examinations made by the same defendant-physician emphasizes such point. It is equally significant that no similar suit has been filed against any other physician who examines claimants at the request of the commission. Amici curiae argue that the absolute immunity rule for physicians engaged by the commission “is not so much for the benefit of the witnesses” but is for the “benefit of the people of Ohio whose interest it is that such persons be at liberty to exercise their functions with independence and honesty, without fear of legal liability.” It has been suggested as a scare tactic that any limitation upon the nonliability of a physician will have a stifling effect upon the submission of a candid and open opinion. On the contrary, the whole point is that claimants must have some assurance that physicians like Dr. McCloud will “exercise their functions with independence and honesty.” Given the oscitancy which still prevails at times on this court toward Industrial *451 Commission claims by use of boilerplate phraseology such as “some evidence” to insulate unjust Industrial Commission decisions from effective review, it is quite clear that it is “for the benefit of the people of Ohio” to instill fear of legal liability in physicians like Dr. McCloud, as an effective way to insure that they perform “their functions with independence and honesty.” Thus, a civil remedy of damages for claimants against such physicians is needed. The vast majority of physicians who perform honest, adequate and complete medical examinations of compensation claimants have nothing to fear from our decision today. They will not be sued, or, if a frivolous claim is filed, it will not survive a motion for summary judgment by the defendant. The scare tactic that the floodgates of litigation will be loosed is too often raised as a spectre to avoid improving the quality of justice through establishing a change in the law. For example, this unfounded floodgate spectre was unsuccessfully urged by those who opposed declaring the guest statute unconstitutional in Primes v. Tyler (1975), 43 Ohio St. 2d 195 [ 72 O.O.2d 112 ]. Thus, while the physician is immune from liability for damages as a result of his submitting false or defamatory statements as to the medical condition of the individual examined, the physician may be held liable for damages on a theory akin to malpractice by virtue of his failure to conduct an adequate and complete examination. Ayers v. Russell (1888), 3 N.Y. Supp. 338 ; Rhiver v. Rietman (1970), 148 Ind. App. 266 , 265 N.E. 2d 245 ; DiGiovanni v. Pessel (1969) , 104 N.J. Super. 550 , 250 A. 2d 756 , modified on issue of damages (1970) , 55 N. J. 188, 260 A. 2d 510 ; Miller v. West (1933), 165 Md. 245 , 167 A. 696 ; McLean v. Sale (1978), 38 N.C. App. 520 , 248 S.E. 2d 372 . Rules of law to encourage and preserve honesty among human beings, fashioned by our decision today, are the finest goal and purpose of justice. It is axiomatic that no wrong should be suffered without a legal remedy. However, under this court’s “some evidence” standard for review of Industrial Commission decisions, even an action in mandamus, originally filed in the court of appeals, can be incapable of remedying an unjust decision of the commission. At the very least, an inadequate medical examination of a claimant by Dr. McCloud can delay the proper resolution of a case by forcing it through the long process of administrative appeals and an original action in the court of appeals. E.g., State, ex rel. Berry, v. Indus. Comm. (1983), 4 Ohio St. 3d 193 , concurring opinion, at 196-197; State, ex rel. Hughes, v. Indus. Comm. (1982), 1 Ohio St. 3d 57, 60 , concurring opinion, at 61; State, ex rel. Allerton, v. Indus. Comm. (1982), 69 Ohio St. 2d 396 [23 O.O. 3d 358]; State, ex rel. Teece, v. Indus Comm. (1981), 68 Ohio St. 2d 165 [22 O.O. 3d 400]. Cf. State, ex rel. Jennings, v. Indus. Comm. (1982), 1 Ohio St. 3d 101, 102 . These cases also reveal that the Industrial Commission is unlikely to invoke internal sanctions against Dr. McCloud under its rulemaking power set forth under R.C. 4123.05 and 4123.53. Moreover, this court is unlikely to determine that the commission relied on a medical report derived from an inadequate examination by Dr. McCloud. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6758174. Public record. Not legal advice.