Linda Marshall’s husband died at Mercy Health-Anderson Hospital. After her husband’s death, she filed an Ohio medical malpractice wrongful death lawsuit against various individuals and the hospital, but she did not name as a defendant the nurse on her husband’s care team. After the statute of limitations expired, defendants moved for summary judgment, arguing that under the Ohio Supreme Court’s holding in Clawson v. Hts. Chiropractic Physicians, L.L.C., 2022-Ohio-4154, a plaintiff could not maintain a vicarious liability action against a hospital when the individual nurse was not sued. The trial court granted the summary judgment motion, and the plaintiff appealed.
In Clawson, the Ohio Supreme Court applied its previous holding in Wuerth (pertaining to the vicarious liability of law firms for the legal malpractice of attorneys) to vicarious liability actions against a hospital for the medical malpractice of its physicians. Wuerth precludes a vicarious-liability claim for medical malpractice against a physician’s employer when a direct claim against the physician is time-barred.
The Ohio First District Court of Appeals stated in its April 11, 2025 Opinion: “Marshall’s claim is against Mercy for the acts of K.M., a nonphysician employee of the hospital. The Ohio Supreme Court has recognized that while nurses are “‘skilled and well trained, [they are] not in the same category as a physician who is required to exercise his independent judgment . . . .’” … In other words, nurses do not exercise similar discretion that physicians do in their work, nor are they free of control from their employer-entity, making them categorically different than physicians. Mercy urges us to recognize that nurses have increasing independence and discretion treating patients, and as such, they cannot be viewed as a typical nonphysician hospital employee that strictly abides by the hospital’s protocols and procedures. However, Mercy provides no authority in support of its assertions on this point. Ohio caselaw clearly delineates vicarious liability claims centered around the medical malpractice of physicians and those regarding the negligence of nurses and other nonphysician employees. Physicians can commit malpractice because they engage in the practice of medicine, but the negligence of nurses “falls under the definition of a ‘medical claim.’””
“Under the general rule of respondeat superior, plaintiffs are free to sue an employee, their employer, or both … We
decline to adopt Mercy’s invitation to allow the exception to insulate hospitals from the general rule. A plaintiff filing a medical claim against a nurse or their employer hospital can choose to file against either or both.”
The Ohio appellate court held: “Because the trial court solely granted summary judgment in favor of Mercy based upon an erroneous application of Clawson to nonphysician employees we sustain the single assignment of error,”
Source Marshall v. Mercy Health-Anderson Hospital, L.L.C., Appeal No. C-240520.
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