A Creative Use of Wuerth for the Medical Malpractice Defense Lawyer

Defense Digest, Volume 22, No. 3, September 2016

By Stephen M. Wagner, Esq.*

In 2009, the Ohio Supreme Court issued a decision in Nat’l Union Fire Ins. Co. of Pittsburgh v. Wuerth, 913 N.E.2d 939 (Ohio 2009), which many practitioners at the time considered to be a radical departure from well-settled respondeat superior principles in Ohio. In Wuerth, the Sixth Circuit Court of Appeals certified a novel question to the Ohio Supreme Court: “Under Ohio law, can a legal malpractice claim be maintained directly against a law firm when all of the relevant principals and employees have either been dismissed from the lawsuit or were never sued in the first instance?,” Nat’l Union Fire Ins. Co. of Pittsburgh v. Wuerth, 913 N.E.2d 939, 941 (Ohio 2009). The court’s response to this seemingly limited question, however, was divided into two separate and distinct holdings. Specifically, (1) whether a law firm may be directly liable for legal malpractice; and (2) whether a law firm may be held vicariously liable for malpractice when none of its principals or employees are liable for malpractice or have been named as defendants.

The court answered the first question in the negative, finding that a law firm does not engage in the practice of law and, therefore, the entity alone cannot directly commit legal malpractice. The second, more hotly litigated holding ruled that, under the principles of respondeat superior, an employer may be held liable only when an employee or agent may be held directly liable and that, in the absence of liability on the part of a firm principal or employee in the case, a law firm may not be held liable for legal malpractice.

 The court’s second holding was initially construed as overturning of years of respondeat superior precedent in Ohio, where it has always been the case that a plaintiff may sue the employer, the employee or both and need not join the employee in litigation against the employer. However, subsequent cases have shown that Wuerth was not such an extreme departure. Nonetheless, application of Wuerth in lower courts, specifically in the medical malpractice arena, has left defense practitioners with a significant sword to wield against inattentive plaintiff’s counsel.

Since 2009, Ohio’s Courts of Appeals have been presented with numerous opportunities to creatively apply the holdings of Wuerth, but thus far, Wuerth’s scope has yet to be extended outside of claims of malpractice waged at doctors or lawyers. Indeed, the limitations of Wuerth were made clear in Stanley v. Community Hosp., Stanley v. Community Hosp., 2011 Ohio App. LEXIS 1120 (Ohio Ct.App. Mar. 18, 2011), where the Second District Court of Appeals examined a trial court’s ruling granting summary judgment to the defense because the nurse at issue was not individually named as a defendant. The court found that a claim for respondeat superior liability could not be maintained against the nurse’s employer. On appeal, the Second District reversed and remanded the case, effectively halting the expansion of Wuerth by stating, “[T]he holding in Wuerth must be given a narrow application. Nowhere in the Wuerth decision does the Supreme Court conclude, expressly or otherwise, that a medical claim brought against a hospital for the alleged negligence of one of its nurse employees constitutes a claim for malpractice.”

Thus, while the use of Wuerth has been limited to lawyers and physicians, Wuerth still does provide the defense practitioner an avenue to prevail on summary judgment or directed verdict, particularly with the advent of electronic medical records (EMR). A recent appellate decision, coupled with observations from practice, illustrate this suggestion precisely. In Rush v. Univ. of Cincinnati Physicians, Inc., Rush v. Univ. of Cincinnati Physicians, Inc., 2016 Ohio App. LEXIS 861 (Ohio Ct.App. Mar. 11, 2016), the First District Court of Appeals upheld the trial court’s grant of a directed verdict on all claims against UC Physicians, except for those arising from any negligence committed by Dr. Kunkel, who was named in the suit because he was listed in the EMR as the physician who ordered a decrease in the patient’s epidural rate. However, Dr. Kunkel insisted, credibly so, that it was likely another physician received the call and ordered the decrease in the epidural rate. To that end, Dr. Kunkel testified that it was common practice for anesthesiologists to routinely sign electronic orders for each other.

The First District Court of Appeals, relying on Wuerth, found that the trial court was on solid legal ground in granting a directed verdict because the physician who actually signed the order in the EMR, Dr. Khalil, was not named in the lawsuit. Furthermore, by the time the plaintiffs discovered that the defendants intended to assert that Dr. Khalil had signed the order, it was too late for them to name Dr. Khalil in the lawsuit.

As such, the confusion created by the EMR, which can mislead a plaintiff’s attorney as to the true identity of the ordering physician, has created a devastating tool for the defense if used properly. In practice, many allegations and lawsuits are inevitably directed towards physicians who actually had nothing to do with the treatment of a patient because someone at a hospital created an electronic order in the EMR with a non-treating physician erroneously listed as the ordering physician. This confusion has made evaluation of medical malpractice cases significantly troubling for plaintiff’s attorneys, simply because the EMR may contain errors as to the true identity of an ordering physician.

Wuerth leaves no room for vicarious liability for medical malpractice where a doctor cannot be found liable for malpractice. Thus, it is now possible for defense counsel to simply sit on his or her hands when a plaintiff is pursuing a theory of liability in a malpractice case against a physician who had nothing to do with the patient’s treatment. This defense is further made possible by the clear law in Ohio, stating that once a cognizable event occurs that places a plaintiff on notice that an injury may have resulted from medical treatment, the statute begins to run and the plaintiff has a duty to investigate and identify all potential tortfeasors, Akers v. Alonzo, 605 N.E.2d 1 (Ohio 1992); Pratt v. Wilson Memorial Hospt., 2000 Ohio App. LEXIS 2955 (Ohio Ct.App. June 30, 2000).

*Stephen is an associate who works in our Cincinnati, Ohio office. He can be reached at 513.372.6816 or smwagner@mdwcg.com.

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_{Defense Digest, Vol. 22, No. 3, September 2016. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}