Presented by the Health Care Department

Ohio Medical Malpractice Claim Not Viable Where Claim Against Employee/Alleged Tortfeasor Failed for Lack of Service

April 13, 2023

On November 23, 2022, the Ohio Supreme Court ruled that a malpractice claim against a medical practice group under the doctrine of respondiat superior was not viable where the claim against the employee/alleged tortfeasor failed for lack of service. In Clawson v. Hts. Chiropractic Physicians, L.L.C., 2022-Ohio-4154, a patient sued her chiropractor and his employer for medical malpractice in the Montgomery County Court of Common Pleas. The plaintiff alleged that her chiropractor was negligent in applying excessive pressure to her back, causing a breast implant to rupture, and his employer was negligent under respondiat superior. The first suit was dismissed without prejudice, but when the case was refiled, the plaintiff did not timely perfect service upon her chiropractor, and he was dismissed with prejudice by the court. The trial court then dismissed the employer on summary judgment, and the plaintiff appealed. The Second District Court of Appeals affirmed the chiropractor’s dismissal but ruled that the plaintiff could still pursue her claim against the employer for the chiropractor’s negligence. The Ohio Supreme Court accepted the discretionary appeal, which included amicus briefs on both sides, and reinstated the trial court’s entry of summary judgment in favor of the employer.

The long-standing principals of agency establish that an employer may be held vicariously liable for a tort committed by its employee under respondiat superior, and by an independent contractor under the theory of agency by estoppel. Clawson at ¶¶12, 14. However, where settlement is reached with an employee, or the statute of limitations has expired against the employee, case law establishes that there can be no viable claim against the employer. Id. at ¶¶13, 15. The intent is to prohibit the plaintiff from double recovery and to allow the employer the ability to seek subrogation from the employee. Id. at ¶37, internal citations omitted.

The court’s decision included a long discussion of conflicting interpretations by Ohio appellate courts of its earlier ruling in Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939, which involved a legal malpractice claim. Clawson made it clear that the Wuerth analysis applied equally in situations of medical malpractice. In Wuerth, the plaintiff sued her lawyer and his firm for legal malpractice, alleging that both were directly liable for negligence and that the firm was also liable under the theory of respondiat superior. Clawson at ¶17. The trial court dismissed the claim against the attorney because it was untimely, and dismissed the claims against the law firm on the basis that it could not be held directly liable for legal malpractice and the respondiat superior claim was not viable without the attorney being liable for malpractice or having been named as a defendant. Id. at ¶18. The court ruled that: (1) a law firm cannot be directly liable for legal malpractice because only individuals can commit malpractice; and (2) a law firm cannot be held vicariously liable for legal malpractice when no individual attorneys are liable or have been named. Id. at ¶19. “If there is no liability assigned to the agent, it logically follows that there can be no liability imposed upon the principal for the agent’s actions.” Id. at ¶22, citing Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712.

The court did distinguish a dismissal on the merits (such as a dismissal based on the statute of limitations) with a determination of immunity, such as might apply to a state employee. A determination of immunity is not a determination of liability; therefore, a determination that a state employee is immune from liability does not preclude a claim against his employer for respondiat superior. Id. at 31, citing State ex rel. Sawicki v. Lucas Cty. Court of Common Pleas, 126 Ohio St.3d 198, 2010-Ohio-3299, 931 N.E.2d 1082 (involving a medical malpractice claim against a provider who was employed by both the state and a private medical corporation).

However, the dissent is something to consider. Brunner issued a lengthy dissent, joined by Donnelly and Stewart, distinguishing between “obtaining a judgment” against the employee and “establishing negligence.” The dissent agrees with the proposition that it is necessary to establish negligence or wrongdoing on the part of the employee in order to hold the employer vicariously liable. However, Brunner argues that it is not necessary to actually obtain a judgment against the employee in order to hold the employer vicariously responsible. According to Brunner, a respondiat superior claim can be brought against an employer without even naming the negligent employee. “[P]roving the negligence…of an employee…in an action against the employer…is enough for liability to attach against the employer…” Id. at ¶37. Brunner points to Pfeifer and Resnick’s dissent in Comer that case law does not require a plaintiff to sue the primary-tortfeasor employee in order to bring a claim against the employer. Id. at ¶39, citing Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, at ¶34.

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