What’s On Their Minds: 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.

By Marianna Bettman on May 11, 2017

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

“I’m asking you for a theory, why is UC Physicians, the employer of all the doctors in anesthesiology there, why are they not liable?”

Justice O’Neill, to defense counsel.

On May 3, 2017, the Supreme Court of Ohio heard 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 medical negligence 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, Appellant 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 at about 6:45 p.m. 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 he did not issue that order, as he would have pursued a different course of treatment. Dr. Kunkel has suggested that Nurse Mueller likely confused Dr. Kunkel with Dr. Khalil, another one of the group’s anesthesiologists, who also saw Rush both before and after Dr. Kunkel’s first visit.

By early morning on November 28, 2010, 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 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. Dr. Khalil was not sued. By the time the case went to trial, all the defendants except Appellees Dr. Kunkel and UC Physicians were dismissed. At trial, the experts for the Rushes 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. In doing so, the jury answered the following interrogatory with a No:

“Have Plaintiffs shown, more likely than not, that Dr. Kunkel deviated from the standard of care by failing to timely evaluate and take action to diagnose Mr. Rush’s spinal cord compression?”

The judge entered judgment for the defendants on the jury’s verdict, and the Rushes appealed.

The Appeal

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.

Read the oral argument preview in the case here.

Key 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.)

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.)(syllabus paragraph 2.)

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.)

Taylor v. Belmont Community Hosp. 2010-Ohio-3986 (7^th Dist.)(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.)

Henry v. Mandell-Brown, 2010-Ohio-3832 (1^st Dist.) (where the claims against a doctor were not filed within the statute of limitations period, the plaintiff could not pursue vicarious-liability claims against the doctor’s employer.)

At Oral Argument

Arguing Counsel

Paul W. Flowers, Paul W. Flowers Co. L.P.A., Cleveland, for Appellants Anthony and Tammy Rush

Mark A. MacDonald, Reminger Co. L.P.A., Cincinnati, for Appellees Thomas Kunkel, M.D. and University of Cincinnati Physicians, Inc.

Rushes’ Argument

This appeal presents a single civil procedure question, namely, whether doctors who are employed by a hospital or medical group have to be individually sued in every malpractice action, or whether the claim can just proceed against the employer. The answer, based on longstanding tort principles, should be the latter.

This court should take another look at its decision in Wuerth, and consider whether the implications that have followed from that decision are worth perpetuating. Certainly it doesn’t seem fair to let the statute of limitations pass on the individual tortfeasor (in that case, a lawyer), but still be allowed to sue his firm. But what happened in that case was done with full knowledge of the facts. That is not what happened in this case. At the time this complaint was prepared, there was no way anyone could identify the anesthesiologist who was at fault. The records that were supplied did not contain the call schedule. And a John Doe place-holder filing wouldn’t work here, because to do that, the person must be described with sufficient particularity to be served with the complaint.

Simplicity is what is needed in this area of the law, and it is found in the basic rule of respondeat superior found in the Losito case from 1940—in a case of a tort by the servant, you can sue the servant, the master, or both. That rule should apply to lawyers and doctors and everyone else. In any medical malpractice case, the plaintiff still must prove a breach of the standard of care which caused injury. But the doctor just doesn’t need to be named individually.

In this case, U.C. Physicians got off the hook even though both Dr. Kunkel and his expert admitted that whoever took that 6:40 p.m. phone call mishandled it. The jury had to find negligence by someone, but the jury couldn’t get there because the trial judge improperly instructed them that they could only find liability against UC Physicians if they found that Dr. Kunkel violated the standard of care. So, the finger-pointing became a complete defense and it shouldn’t have been. Suing UC Physicians should have been enough, then identifying the proper tortfeasor, and proving the departure from the standard of care and causation. Instead, an improperly instructed jury answered an interrogatory based only on the conduct of Dr. Kunkel.

Dr. Kunkel’s and University of Cincinnati Physicians’ Argument

The trial judge in this case properly followed Wuerth. Extending Wuerth from law firms and lawyers to doctors and medical groups is no stretch at all, particularly when Wuerth relies largely on medical malpractice cases to reach its holding. It is fair to say that practitioners believe that Wuerth applies to medical groups and doctors just as it applies to law firms and lawyers.

Just to be clear about the facts here–Dr. Kunkel admitted he signed the disputed November 26 order, about six weeks after the fact, when signing a stack of electronic orders. But it has always been his position that he was not the one who issued that order. The Rushes made no attempt to determine which physician issued this order. In his deposition, Dr. Kunkel stated that it was Dr. Khalil who was on call that night, and suggested the two names sounded similar. But the Rushes did not take Dr. Khalil’s deposition.

So, if it wasn’t Dr. Kunkel, was the tortfeasor some ghost doctor? A ghost doctor can’t testify or defend himself. We don’t know whether the ghost doctor committed malpractice or not. We know that a nurse documented something that was not really a proper order, because it didn’t say call me back in two hours. We don’t know what the ghost doctor said on the phone. We don’t have any testimony from the ghost doctor –the argument was all about Dr. Kunkel.

The jury interrogatory in this case was proposed by plaintiffs’ counsel, and the defense did not object, for tactical reasons. The defense did not think there was spinal cord compression. So, in answering the interrogatory “no” the jury either could have found that Dr. Kunkel wasn’t negligent in failing to diagnose spinal cord compression, or that there was no spinal cord compression. Because this was the interrogatory, we just don’t know if the jury thought Dr. Kunkel was negligent in some other respect, or if they thought somebody else at UC Physicians was negligent, or no one was. The record just doesn’t give us that information.

What Was On Their Minds

Wuerth

Does it make a difference when the statute of limitations expired in the Wuerth case, asked Judge Singer? Was it before suit was filed?

How could the court limit the legal malpractice decision in Wuerth and have it not apply for physicians or other professions, asked Justice O’Donnell?

Identifying the Tortfeasor

We have extensive discovery procedures now, where we can ascertain the responsible actor, and special affidavit requirements for medical claims, commented Justice O’Donnell, How would suing the master only square with what we have to practice under Civ. R.10(C) ? Would there be prudence is designating the on-call physician for that evening? Just name the medical employer and you’ve got everybody? Just naming the medical practice is enough?

Could the plaintiffs have reserved John Doe and inserted someone later learned to be there, due to discovery, asked Chief Justice O’Connor? Describe the person as working at the Hospital and being part of the treatment team? Was the complaint filed at the last minute just before the statute was about to expire? Wouldn’t the investigation that has to go on before suit is filed have turned up the name of the on-call physician for that evening? Did the plaintiff know of the existence and the name of Dr. Khalil before Dr. Kunkel said, Khalil, Kunkel, they all sound the same?

Didn’t UC Physicians know they were defendants in this case because of Ohio’s notice pleading, asked Justice O’Neill?

Doctors and Lawyers

Should there be a different rule for medical as opposed to legal negligence, asked Justice O’Donnell?

Has the court ever actually ruled that a medical employer doesn’t practice medicine, so it can’t be sued for a doctor’s tort, asked Justice O’Neill?

The Electronic Order

What about the practice, from Dr. Kunkel’s testimony that, yeah that’s my signature, but I didn’t authorize it, we have this professional courtesy thing that we do that allows for somebody else to put my name on it, even though it was his or her decision, asked Chief Justice O’Connor? Then she commented, “I mean, if I were a physician I would make it abundantly clear–nobody puts my name on anything unless I say ok and everybody needs to know that. But this practice I think is one of the most troubling things that has come out of this case that I’ve read.” (Defense counsel later explained that practice was no longer permitted.)

What does it mean when somebody signs something, asked Judge Singer? Doesn’t it have meaning, like I take responsibility for the consequences?

Respondeat Superior

Is respondeat superior dead in Ohio, asked Justice O’Neill? Does Dr. Khalil work for U.C. Physicians? Are there any anesthesiologists that work for the hospital that don’t work for UC physicians? Even the ghost doctor?

What Happened in this Case

Who was the on-call doctor that evening, asked Justice O’Donnell?

Justice O’Neill got into a long and, on his end, testy, exchange with defense counsel when defense counsel said Dr. Kunkel admitted signing the order, but not giving it. Where was that in the record? Wasn’t he claiming all along he was not on call that day and had no idea what happened here? Was there anything in the record that would indicate that someone other than a physician employed by UC Physicians ordered that treatment? By what theory does UC, who’s collecting millions of dollars per year to treat people, say, well that’s a most unfortunate outcome, but we have nothing to do with it?

The Jury Interrogatory

Could we look at what the jury actually determined in answering the interrogatory, asked Justice French? Do we know if the jury thought somebody committed malpractice but it wasn’t Dr. Kunkel, because they believed him? Or, could they have found that there was no malpractice here? That something else caused the spinal cord compression—it was the accident itself? Didn’t the jury answer no to the interrogatory, “did Dr. Kunkel deviate from the standard of care”?

The Jury Verdict

In a key question of the day, Justice French asked whether it was a possibility that the jury decided there was no medical malpractice, so it wouldn’t matter whether it was Dr. Kunkel, or a ghost doctor –UC physicians couldn’t be liable because there wasn’t malpractice here? Later, she commented, if the jury found no spinal cord compression, it wouldn’t have to find negligence.

How did the verdict get signed by the trial judge here, asked Justice O’Neill? Did the jury decide that there was no malpractice? Or if there was malpractice employers are off the hook in Ohio?

Weren’t there experts who came in and said that what happened was caused by the fall, asked Chief Justice O’Connor?

How it Looks from the Bleachers

To Professor Emerita Bettman

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—a sentiment most felt by Justice O’Neill, in a barrage of questions to defense counsel, but also echoed by others. This was a curious example of an oral argument that was more confusing than helpful, particularly when defense counsel stated that Dr. Kunkel was not denying that he electronically signed the order in question, but denied that he issued the order. Up until that moment, I think everyone (myself included) thought the dispute was over who actually signed the order. That also seemed to be what the appeals court assumed was the dispute. And it is also unclear why the plaintiffs did not sue Dr. Khalil in the first place, if his name was in the record as also seeing Rush during the time in question.

If the case isn’t dismissed, I’m calling this for the defense, with Justice O’Neill and Judge Singer dissenting. Justice French, who was most focused on the actual jury interrogatory and verdict, believes that the verdict could fairly be interpreted as finding no spinal cord compression at all, so no one in the practice was negligent. If there was no malpractice, UC Physicians couldn’t be negligent through any employee, named or not. That neatly sidesteps the Wuerth problem. According to the defense argument, the plaintiffs chose the wording of the interrogatory.

But if the court does go with Wuerth, I think a majority, with Justice O’Donnell feeling most strongly on this point, will extend the exception carved out for lawyers in Wuerth to doctors here, and will find for the defense. Most of the cases relied on in Wuerth were from the medical field. And just as law firms don’t practice law, medical practices don’t practice medicine.

But as a retired torts professor, to me, it is clearly Wuerth that is out of line here, as plaintiffs’ counsel suggested. Respondeat superior is a mainstay of torts. In any other area of tort law that I can think of, substantively, the actual tortfeasor employee doesn’t have to be named as a party defendant if the boss is. That’s part of the point. I think the court should overrule Wuerth and stick with traditional tort doctrine for any tortfeasor. After all, if Kroger’s is sued because one of its drivers injures someone while on the job, Kroger’s doesn’t drive trucks, does it?

To Student Contributor Danielle List

Simply counting heads, it looks like UC Physicians will come out on top on this one. As pointed out by Justice O’Neill, however, this seems greatly at odds with this court’s longstanding decision in Losito and basic principles on respondeat superior. Of course, the court’s decision in Wuerth created an exception to this general principle when applied in the legal malpractice context, and so it’s likely that this exception will be extended to the medical malpractice context. Justice O’Donnell clearly indicated that he did not see what limiting principle could be used to prevent such a result. He also seemed to be very concerned about what effect a rule allowing an employer-hospital to be sued without joining the employee-physician would have on the extensive discovery and notice pleading requirements required for medical malpractice claims.

Chief Justice O’Connor expressed her own concerns regarding the hospital’s alleged practice of allowing physicians to sign each other’s orders without claiming individual responsibility. This, however, seemed to be the extent of her sympathy for the Rushes’ plight, as she continuously questioned why alternatives, such as naming a John Doe or joining Dr. Khalil, weren’t taken by the Rushes.

In fact, the only vocal supporters of the Rushes seemed to be Justice O’Neill and Judge Singer. Justice O’Neill pushed counsel for UC Physicians to provide him with a theory that could justify UC Physicians escaping liability on a claim where some employee-physician committed malpractice and merely which employee-physician remained unknown. After engaging in an extended conversation over the limited use of a “ghost doctor,” Justice O’Neill seemed to get no closer to receiving a satisfactory answer. Instead, this sparked a conversation that seemed to reveal Justice French’s and Chief Justice O’Connor’s doubts as to whether the jury even found malpractice by any employee-physician on which to base liability. In the end, this question probably won’t ever get answered should the Court side with UC Physicians.