The Ohio Supreme Court has issued two decisions over the last 30 days that will have a substantial effect on how attorneys should handle medical claims (and potentially other tort claims).
The first is Clawson v. Heights Chiropractic, Slip Opinion No. 2022-Ohio-4154, which held that if a physician cannot be held directly liable for malpractice, then a lawsuit seeking to hold the physician’s employer vicariously liable must be dismissed. This case involved a claim against a chiropractor who allegedly applied excessive pressure to her back, which resulted in the rupture of her left breast implant. The patient brought a lawsuit against the chiropractor and his employer, but failed to timely serve the chiropractor within the one year required by Ohio law. The chiropractor filed a motion to dismiss on the basis of service of process, which was granted by the trial court. The chiropractor’s employer then moved for summary judgment, arguing it could not be held vicariously liable if direct liability claims against the chiropractor had been extinguished, which was also granted by the trial court. The patient appealed to the Second District Court of Appeals, which affirmed the trial court’s decision to dismiss the chiropractor, but reversed the trial court’s decision granting summary judgment for his employer, finding the patient could still pursue her claims against the employer for the chiropractor’s alleged negligence, even then the direct claims against the chiropractor were properly dismissed. The employer then appealed the Second District’s decision to the Ohio Supreme Court, arguing that its prior holding in Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 122 Ohio St.3d 594 (which held that a law firm cannot be vicariously liable for the negligence of its attorneys if the attorney is not determined to be liable or otherwise named as a defendant within the applicable statute of limitations) should be extended to medical claims. The Ohio Supreme Court agreed with this argument and held that Wuerth precludes a vicarious liability claim for medical malpractice against a physician’s employer when a direct claim against the physician is time-barred.
Here’s the problem: while the Supreme Court characterizes its decision as being “consistent with basic principles of agency law,” Justice Brunner’s dissenting opinion sets forth the fallacy in that reasoning. Longstanding Ohio agency law had previously held a tort victim could file a lawsuit “against either the master or the servant, or against both.” See Losito v. Kruse, 136 Ohio St. 183, 187-188 (1940). Now, at least in medical claims and legal malpractice claims, a tort victim must sue both he negligent attorney/physician/employee, as well as the hospital/law firm/employer. And while it is has yet to be explicitly expanded beyond these two types of tort claims, if the Ohio Supreme Court believes “basic agency law” to mean an individual employee must be a named defendant in order to hold his or her employer vicariously responsible, Ohio practitioners could soon be tasked with identifying negligent employees within the applicable statute of limitations and naming them as defendants, or risk committing legal malpractice.
The second case is Walling v. Brenya, Slip Opinion No. 2022-Ohio-4265. This case held that a negligent credentialing claim cannot proceed unless there is either a simultaneous or prior adjudication of or stipulation that a doctor committed medical malpractice. In Walling, the family of a patient brought a wrongful death/medical negligence claim against the physician, as well as a negligent credentialing claim against the hospital. The family and the physician later reached a settlement related to the wrongful death claim and medical malpractice claim, which was devoid of any admission of liability by the physician. The hospital subsequently moved for summary judgment on the negligent credentialing claim arguing that without any adjudication or stipulation that the physician was negligent, the family could not maintain its negligent credentialing claim. The trial court granted the hospital’s motion, and that decision was ultimately affirmed by both the Sixth District Court of Appeals and the Ohio Supreme Court. While this case does not change how negligent credentialing cases are likely to be handled by practitioners in Ohio, it does confirm what many had already assumed by reading between the lines of prior decision: that malpractice by a physician must affirmatively be established in order to proceed with a negligent credentialing claim in Ohio.
