On May 22, 2017, by a vote of 5-2, the Supreme Court of Ohio dismissed Rush v. Univ. of Cincinnati Physicians, Inc.,2017-Ohio-2896 as improvidently accepted. The issue in the case was whether an employee needs to be joined in a medical negligence action in order to establish respondeat superior liability for the employer when the employer has been properly named and served.
The trial court in this medical negligence case granted a partial directed verdict in favor of U.C. Physicians, finding that U.C. Physicians could not be held vicariously liable for any physician not specifically named in the suit, but could only be liable for the conduct of the named anesthesiologist, Dr. Thomas Kunkel. The jury ultimately found in favor of both named defendants, U.C. Physicians and Dr. Kunkel. 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.
These were the dueling propositions of law proposed by each side at the Supreme Court of Ohio:
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.
This case was so messy that after argument, I wrote, “I think this case could be dismissed as improvidently allowed, because as interesting as the procedural question at issue is, the factual posture of the case is messy and confusing.”
Chief Justice O’Connor and Justices Kennedy, O’Neill, Fischer, and Judge Singer, sitting for the recused Justice DeWine, voted for dismissal. Justices French and O’Donnell dissented, and would affirm the judgment of the court of appeals. Even though the court of appeals judgment stands either way, there is a difference in the effect of these positions. The majority’s vote to dismiss means the court of appeals judgment stands between the parties in this case, and its reasoning stands in the First District. Justices French and O’Donnell would go one step further—they would have the high court adopt the reasoning of that decision, that a medical practice cannot be held vicariously liable for the conduct of an unnamed physician. Then-Judge DeWine wrote the appellate opinion in the case.