Oral Argument Preview: Proper Joinder for Respondeat Superior Liability in Medical Claim. Anthony Rush and Tammy Rush v. University of Cincinnati Physicians, Inc., and Thomas John Kunkel, M.D., and West Chester Medical Center et al.

Update: On May 22, 2017, the Supreme Court of Ohio dismissed this case as improvidently accepted.  Read more about that here.

Read the analysis of the oral argument here.

On May 3, 2017, the Supreme Court of Ohio will hear oral argument in the case, Anthony Rush and Tammy Rush v. University of Cincinnati Physicians, Inc., and Thomas John Kunkel, M.D., and West Chester Medical Center et al., 2016-0636. At issue is whether an employee needs to be joined in a tort action in order to establish respondeat superior liability for the employer when the employer has been properly named and served. Justice DeWine has recused himself, since he sat on the court of appeals case.  Judge Arlene Singer of the Sixth District Court of Appeals has been assigned to sit for him on this appeal.

Case Background

On November 23, 2010, Anthony Rush (“Rush”) was admitted to West Chester Hospital after falling off a 30-foot ladder. Rush had multiple injuries, including several rib fractures, which prompted Dr. Caudell, the anesthesiologist on duty, to insert an epidural catheter to release a continuous drip of pain medications into Rush’s spinal canal. Over the next few days, several other anesthesiologists, all members of the University of Cincinnati Physicians group, —Doctors Chen, Khalil, Wojciechowski, and Kunkel—oversaw Rush’s pain management care.

Dr. Kunkel first treated Rush on November 26, 2010. At this point, Rush was still suffering from severe and ongoing pain, to which Dr. Kunkel responded by increasing the rate of anesthesia infusion. Rush experienced some pain relief, but by the following evening, he began to feel numb in his legs and abdomen. In response, Nurse Mueller called an anesthesiologist about Rush’s worsening condition. While Nurse Mueller’s record of this call does not indicate with whom she spoke, a separate telephone order instructing her to reduce the epidural rate was also included in the medical records, and bore the name and electronic signature of Dr. Kunkel. Dr. Kunkel, however, maintains that the he did not receive this call, as he would have pursued a different course of treatment had he been the one called. Dr. Kunkel has suggested that Nurse Mueller likely confused Dr. Kunkel with the on-call anesthesiologist, Dr. Khalil, and that Dr. Khalil likely signed the order for Dr. Kunkel, which the doctors routinely did for each other.

By early morning on November 28, 2010, Mr. Rush was experiencing increased numbness in both legs and was incontinent of urine. Nurse Culp called Dr. Kunkel, who then instructed her to turn off the epidural and provide him with an update in two hours. Nurse Culp complied and reported some improvement by 6:30 a.m. By 9:00 a.m., Nurse Mueller was back on duty, and called Dr. Kunkel to report improvement in Mr. Rush’s right leg, but persistent numbness in his left leg. At 12:30 p.m., Dr. Kunkel arrived to check on Rush and found him unable to move his left leg, and his right leg was very weak. Concerned with the possibility of an epidural hematoma, Dr. Kunkel ordered an MRI and transferred Rush to University Hospital for evaluation. Rush is now paralyzed, and in a wheelchair.

On April 9, 2012, Rush and his wife, Tammy Rush, filed a medical malpractice action against several defendants who were responsible for his medical care. By the time the case proceeded to trial, however, all the defendants except Dr. Kunkel and UC Physicians were dismissed. At trial, the Rushes and their experts contended that the placement of the epidural catheter caused bleeding that resulted in Rush’s spinal cord being compressed, and therefore Dr. Kunkel was negligent in failing to identify and correct this problem. The experts for Dr. Kunkel and UC Physicians disagreed, asserting that Rush’s paralysis was a result of his original injuries and that Dr. Kunkel’s treatment was not negligent. At trial, the defendants also moved for a partial directed verdict in favor of UC Physicians, on the grounds that UC Physicians could not be held vicariously liable for any physician not specifically named in the suit. The trial court granted this directed verdict, finding that UC Physicians could be liable only for the conduct of Dr. Kunkel.  The jury ultimately found in favor of the defendants.

On appeal, the First District Court of Appeals affirmed the trial court’s decision to grant the partial directed verdict on the issue of vicarious liability. In an opinion authored by then-Judge DeWine and joined by Judges Mock and Stautberg, the First District relied heavily on the Ohio Supreme Court’s decision in Wuerth to conclude that UC Physicians could not be held vicariously liable for the conduct of an unnamed physician. Judge Stautberg also concurred separately to state that while he agreed that the Rushes should be allowed to pursue the claims against UC Physicians that were not tied specifically to Dr. Kunkel’s alleged negligence,  precedent constrained him from such an outcome.

 Votes to Accept the Case

Yes: Justices French, Pfeifer, O’Neill and Lanzinger

No: Chief Justice O’Connor and Justices O’Donnell and Kennedy.

Key Statutes and Precedent

Civ.R. 10(D)(2)(a) (any medical claim must include affidavits of merit relative to each defendant named in the complaint for whom expert testimony is necessary to establish liability.)

Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712 (agency by estoppel is a derivative claim of vicarious liability whereby the liability of the hospital must flow through the independent-contractor physician. Consequently, there can be no viable claim for agency by estoppel if the statute of limitations against the independent contractor physician has expired [… since] a direct claim against a hospital premised solely upon the negligence of an agent who cannot be found liable would be contrary to basic agency principles.)

Harris v. Mt. Sinai Med. Ctr., Ohio St.3d. 139, 2007-Ohio-5587, 876 N.E.2d 1201 (concluding that the failure to join a physician as party to the suit did not render the doctrine of agency by estoppel inapplicable, as the doctrine could also be based upon the allegedly negligent conduct of the nurses treating the plaintiff.)

Losito v. Kruse, 136 Ohio St. 183, 24 N.E.2d 705 (1940) (where liability arises solely from the negligence of the servant while acting for the master, such injured party may sue either the servant, primarily liable, or the master, secondarily liable, or both, in separate actions, as a judgment in his favor against one, until satisfied, is no bar to an action against the other, the injured party being entitled to full satisfaction from either the master or servant or from both.)

National Union Fire Ins. Co. v. Wuerth, 122 Ohio St. 3d 594, 2009-Ohio-3601, 913 N.E.2d 939, syllabus (A law firm does not engage in the practice of law and therefore cannot commit legal malpractice directly. A law firm is not vicariously liable for legal malpractice unless one or more of its principals or associates are liable for legal malpractice.)

State ex rel. Sawiscki v. Lucas Cty. Court of Common Pleas, 126 Ohio St.3d 198, 2010-Ohio-3299, 931 N.E.2d 1082 (finding that a plaintiff could pursue a claim against a physician’s private employer on the theory of respondeat superior even when the physician-employee himself is entitled to personal immunity.)

Taylor v. Belmont Community Hosp., 7th Dist., Belmont No. 09 BE 30, 2010-Ohio-3986 (refusing to extend the narrow holding in Wuerth to preclude a suit against an employer-hospital where its employee-physicians were not named as defendants.)

Rushes’ Argument

There is no question that an anesthesiologist employed by UC Physicians was negligent in providing medical care to Anthony Rush. Whether that anesthesiologist was correctly or incorrectly identified as Dr. Kunkel should have no bearing on whether UC Physicians can be held vicariously liable for this plainly negligent conduct. The lower court erred when it extended this Court’s holding in Wuerth to the medical malpractice context. In fact, this Court has repeatedly stressed the narrow and limited reach of Wuerth. There is no suggestion in Wuerth that professional corporations should be allowed to avoid liability for torts of unidentified members.

Extending the holding in Wuerth to preclude a suit against an employer medical group when the negligent employee has been misidentified is a nonsensical and unjust result. Under such a rule, an employer could always escape vicarious liability by having its negligent employee claim he was misidentified. The only way a plaintiff could protect itself against such a potential scheme would be to name every member in the organization as part of the suit. Such a condition, especially in large medical groups where dozens of physicians are employed, would be unrealistic, time-consuming, and potentially subject to sanction. The court should reject this “blame the unidentifiable employee” tactic.

The lower court’s decision also was in error because it imposes an unwarranted pleading standard on a vicarious liability claim for a malpractice action. There is no dispute that a plaintiff alleging vicarious liability against an employer must establish that an employee-physician committed medical malpractice in the course and scope of his employment. However, there is no substantive requirement under the doctrine of respondeat superior that the employee be joined in such an action against the employer. Indeed, such a requirement is merely procedural and not required under the current Civil Rules. The lower court’s decision erroneously imports this new requirement, which unfairly serves to immunize a medical organization from malpractice claims whenever the tortious physician cannot be identified.

Put simply, the requirements for a claim of respondeat superior should not be heightened simply because this is a case of medical malpractice. In other contexts, it is well-settled that where an employer-employee relationship exists and a harm arises out of this relationship, the tort claimant may pursue a claim against either or both parties. Changing this general rule for claims of medical malpractice is inconsistent and unwarranted.

Dr. Kunkel’s and U.C. Physicians’ Argument

This case falls squarely within this Court’s decision in Wuerth. While the Wuerth decision was narrow, the extension to the medical context is hardly unforeseeable. This Court has repeatedly recognized the similar interests and concerns of lawyers and doctors. Wuerth should apply both to doctor groups and doctors as well as to law firms and lawyers. Under Ohio common law, malpractice actions are limited to claims against these two classes. It stands to reason, then, that the Court should continue to parallel its rules for lawyers to those for doctors. Extending Wuerth to the medical context would promote consistency and clarity to this Court’s jurisprudence.

The Rushes, on the other hand, would have the Court adopt a proposition of law that would broadly extend the doctrine of respondeat superior to all employers and not just medical groups. Not only is such a proposition contrary to this Court’s decision in Wuerth, but also addresses issues beyond the facts presented in this case. Such a broad pronouncement is unnecessary and amounts to disfavored judicial activism.

When a medical group is sued under a theory of respondeat superior, it is entitled to have notice of which physicians’ conduct it must defend. By its terms, Civ.R. 10(D)(2)(a) requires that affidavits of merit be filed “relative to each defendant.” Sometimes, this requires a plaintiff to name a “John Doe” defendant until the name of the tortfeasor can be identified through discovery, joined as a party, and have its own affidavit of merit filed. Allowing a plaintiff to proceed to trial against employer-medical groups without specifically naming the physicians whose conduct underlies the claim would seriously undercut the requirement for individual merit affidavits to be filed pursuant to Civ.R. 10(D)(2)(a).

The lower court correctly concluded that allowing a malpractice claim against an employer under the theory of respondeat superior to proceed without naming the employee whose conduct serves as the basis of the malpractice claim is unsound. The potential unfairness resulting from a case involving a misidentified or unidentified physician is not properly dealt with by allowing these cases to proceed carte blanche. Instead, there are mechanisms already in place, such as naming all potential defendant-physicians or even a “John Doe” defendant, to prevent against such unfairness. The Rushes’ failure to take advantage of these alternatives do not warrant reversal.

 Amicus in Support of the Rushes

Amicus, the Ohio Association of Justice (OAJ) filed a brief in support of the Rushes. OAJ is an organization committed to preserving Constitutional rights and access to the civil justice system. In its brief, OAJ reviews basic agency principles that open the door to liability for a principal on account of its agent’s actions. OAJ reiterates the basic principle that holds the actions of an employee, when committed within the scope and exercise of his employment, to be the actions of the employer. According to OAJ, the lower court’s decision rejects these basic agency principles and should, therefore, be reversed.

Rushes’ Proposed Proposition of Law

In any tort action, the employee does not need to be joined in order to establish respondeat superior liability so long as the employer has been properly named and served. [National Union Fire Ins. Co. v. Wuerth, 122 Ohio St. 3d 594, 2009-Ohio-3601, 913 N.E. 2d 939, limited; Taylor v. Belmont Community Hosp., 7th Dist., Belmont No. 09 BE 30, 2010-Ohio-3986, approved].

Dr. Kunkel’s and U.C. Physicians’ Proposed Counter-Proposition of Law

A medical group may be vicariously liable for medical malpractice only when one or more of its physicians is liable for medical malpractice.

Student Contributor: Danielle List

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