In 2009, the Supreme Court of Ohio held that a plaintiff could not hold a law firm responsible for the actions of an employed attorney if the plaintiff did not pursue a timely action against the individual attorney. Natl. Union Fire Ins. Co. v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939. The application of that decision to doctors, nurses and other medical professionals has been inconsistent – until now. On November 23, 2022, the Supreme Court of Ohio made it clear that this same premise applies to medical negligence claims against medical professionals.
The Plaintiff in Clawson brought a medical negligence action against both a chiropractor and his professional corporation. That action was dismissed and re-filed. When the plaintiff had failed to accomplish service of the re-filed complaint on the individual chiropractor after one year, he filed a motion to dismiss/motion for summary judgment based upon the failure of service. That motion was granted and it was followed by a motion for summary judgment filed by his professional corporation arguing that the plaintiff was precluded from maintaining an action against it based upon secondary or vicarious liability for the actions of its employed chiropractor when it was precluded from bringing a primary or direct claim against the chiropractor himself. That motion was also granted. On appeal, the Second District Court of Appeals affirmed the decision with regard to the chiropractor, but reversed the decision with regard to the professional corporation. The Supreme Court of Ohio took the case on further appeal.
The Supreme Court of Ohio has now specifically held that a plaintiff cannot bring a claim against a professional corporation for the actions of an employed medical provider if the claims against the individual provider are extinguished. In so doing, the court clarified that its decision in Wuerth applies to claims of medical negligence. This decision will bring much needed clarity and consistency to this issue around the state of Ohio.
The Court also distinguished its holding from State ex rel. Sawicki v. Lucas Cty. Court of Common Pleas, 126 Ohio St.3d 198, 2010-Ohio-3299, 931 N.E.2d 1082. That case involved a medical claim against a professional corporation for the actions of a physician who was employed by both a professional corporation and the state of Ohio. The court found that a plaintiff can pursue a claim of secondary liability for an employed provider even though he enjoys immunity arising out of his employment by the state. The court distinguished immunity because it is not a determination of liability, whereas a dismissal based on the statute of limitations is a dismissal on the merits.
It has been well established since 2005 that a professional corporation/hospital cannot be held liable for an independent medical provider unless the plaintiff also asserts a timely action against the individual provider. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559. It is now the law of the land in Ohio that the same is true for an employed provider.
Bricker & Eckler LLP served as counsel in this case to the Ohio Hospital Association, the Ohio State Medical Association, and the Ohio Osteopathic Association, which participated as amici curiae.
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