Ohio Supreme Court Rules Medical Provider’s Employer Cannot Be Held Vicariously Liable For Employee’s Negligence Where Statute Of Limitations Expired For Claim Against Employee

Medical Provider’s Employer Cannot Be Held Vicariously Liable For Employee’s Negligence: In its opinion dated November 23, 2022, the Supreme Court of Ohio stated, “In this appeal, we consider whether a plaintiff may prevail on a claim of chiropractic malpractice against a chiropractor’s employer under the doctrine of
respondeat superior when the expiration of the applicable statute of limitations has extinguished the chiropractor’s direct liability for the alleged malpractice …

The Ohio Supreme Court held: “Because Clawson had failed to timely serve Dr. Bisesi with her refiled complaint, and because the statute of limitations on her claim against Dr. Bisesi had expired, Clawson’s right of action against Dr. Bisesi was extinguished by operation of law. As a result, Heights Chiropractic, as Dr. Bisesi’s employer, may not be held vicariously liable for Dr. Bisesi’s alleged malpractice.”

The Underlying Facts

In 2016, the plaintiff, Cynthia Clawson, sued chiropractor Don Bisesi, D.C., and his employer, defendant Heights Chiropractic Physicians, L.L.C., for medical malpractice in the Montgomery County Court of Common Pleas. Clawson
dismissed her initial claims in September 2017, but she refiled her claims against Dr. Bisesi and Heights Chiropractic in August 2018, within the time allowed by Ohio’s saving statute, R.C. 2305.19(A).

Clawson’s claims arose from treatment that she received at Heights Chiropractic on November 7, 2014. On that date, Clawson, a regular patient at Heights Chiropractic, received treatment from Dr. Bisesi, who was not her usual
chiropractor. Clawson alleged that while she was lying face down on a table, Dr. Bisesi acted negligently when he applied excessive pressure to her back, causing her left breast implant to rupture. Clawson claimed that as Dr. Bisesi’s employer, Heights Chiropractic is liable for his negligence.

The trial court granted Dr. Bisesi’s motion to dismiss, finding that Clawson did not validly serve Dr. Bisesi with her refiled complaint. Thus, the only claim that was left was Clawson’s claim against Heights Chiropractic, which was based solely on its status as Dr. Bisesi’s employer.

On appeal, Heights Chiropractic had argued that a plaintiff may not pursue a vicarious-liability claim under the doctrine of respondeat superior for medical malpractice against a physician’s employer after the physician’s direct liability has been extinguished.

Dissenting Opinion

The dissenting opinion stated: “In this case, the only reason that Dr. Bisesi is not still a defendant in Clawson’s lawsuit is that Clawson apparently could not figure out where to perfect service of the complaint on him. There appears to be little dispute that Dr. Bisesi was an employee of Heights Chiropractic, and Clawson may be able to prove that Dr. Bisesi was negligent and caused her injury while working within the scope of his employment for Heights Chiropractic. The sole reason that the trial court granted summary judgment to Heights Chiropractic was Clawson’s inability to obtain a judgment against Dr. Bisesi due to her failure to perfect service on him. But what if Clawson had never sued Dr. Bisesi at all? That would have been perfectly permissible under our precedent prior to the majority’s decision today, and there would have been no need for Clawson to even attempt service. If Heights Chiropractic were concerned about its ability to seek indemnification from Dr. Bisesi, it could have “cause[d] a summons and complaint to be served upon” him under Civ.R. 14(A) … to prevail against the employer/principal, the plaintiff must prove the requisite wrongdoing
by the employee/agent. But actually maintaining a lawsuit and obtaining a judgment against the employee/agent is not the same as proving negligence or wrongdoing on the part of the employee/agent. Technical or procedural defects in litigation such as failure of service that prevent a judgment against an employee/agent do not prevent a showing of negligence or wrongdoing or an action against the employer/principal.”

Source Clawson v. Hts. Chiropractic Physicians, L.L.C., Slip Opinion No. 2022-Ohio-4154.

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