On January 26, 2022, the Supreme Court of Ohio will hear oral argument in Cynthia Clawson v. Heights Chiropractic Physicians, LLC, et al., 2020-1577. At issue in this case is whether an employer can avoid liability for the negligent actions of its professional employee, here a chiropractor, after the professional employee has been dismissed from the lawsuit.

Case Background

In April 2016, Cynthia Clawson filed a medical negligence claim against her chiropractor, Dr. Don Bisesi and his employer, Heights Chiropractic. Clawson alleged that Dr. Bisesi negligently ruptured a breast implant when he applied pressure to her back while laying face down on a table. In September 2017, Clawson voluntarily dismissed the complaint, but pursuant to Ohio’s one year saving statute, she properly refiled her lawsuit in August 2018. Dr. Bisesi and Heights Chiropractic both sought to have the case dismissed.

First, Judge Dennis J. Adkins of the Montgomery County Court of Common Pleas dismissed the complaint against Dr. Bisesi. Without an evidentiary hearing, Judge Adkins dismissed Dr. Bisesi from the case because Clawson failed to perfect service of process within one year of filing the initial complaint. Clawson had attempted to serve the complaint at Dr. Bisesi’s old residence in Florida, where he no longer resided. Although the current occupant signed an acknowledgement form, Dr. Bisesi never received the complaint nor was contacted about it. Dr. Bisesi was now no longer a party to the lawsuit. Consequently, Heights Chiropractic moved the trial court for summary judgment arguing that because its employee was no longer a party to the dispute and its liability was purely vicarious, any liability against it as employer was extinguished. The trial court agreed—because the primary claims against Dr. Bisesi were extinguished, so were the secondary claims against Heights Chiropractic. Clawson appealed both dismissals.  

The Appeal

The Second District Court of Appeals affirmed the dismissal of Dr. Bisesi for failure to perfect service but reversed the trial court’s grant of summary judgment in favor of Heights Chiropractic. Judge Michael Hall authored the unanimous opinion, joined by Judges Jeffrey Welbaum and Jeffrey Froelich.  

In affirming the dismissal of Dr. Bisesi, the Second District reasoned that Dr. Bisesi’s evidence rebutted any presumption of proper service. Most notably, Dr. Bisesi did not know about the refiled 2018 complaint, the signature was not his, he did not authorize anyone to sign it for him, and a prior attempt to serve him at that address had been unsuccessful. Further, Clawson was not entitled to an evidentiary hearing because she sent the complaint to the wrong address and does not dispute that Dr. Bisesi no longer lives at that Florida address.

However, the Second District reversed the trial court’s dismissal of Heights Chiropractic. In so doing, it held that a plaintiff may pursue an employer even when the individual employee has been dismissed from the case. Although Ohio precedent suggests that some principals can avoid liability when their agents are not parties to the suit, that narrow rule arose in cases of agency by estoppel or other distantly related employer-employee relationships. In contrast, Dr. Bisesi and Heights Chiropractic have the most traditional, closely-connected principal-agent relationship—that of employer-employee. Thus, the trial court improperly applied a narrow line of precedent to this case. Heights Chiropractic appealed and the Supreme Court of Ohio accepted the case.

Key Statutes and Precedent

Losito v. Kruse, 136 Ohio St. 183 (1940) (“the plaintiff has a right of action against either the master or the servant, or against both, in separate actions, as a judgment against one is no bar to an action of judgment against the other until one judgment is satisfied.”)

Comer v. Risko, 2005-Ohio-4559 (On a theory of agency-by-estoppel, when an independent contractor was not found liable, the Court held that “[i]f there is no liability assigned to the agent, it logically flows that there can be no liability imposed upon the principal for the agent’s actions.”)

National Union Fire Ins. Co. of Pittsburgh v. Wuerth, 2009-Ohio-3601 (extending the Comer rule to legal malpractice although the relationship between the attorney and his firm is of a third agency classification—distinguishable from both respondeat superior and agency by estoppel.)

Taylor v. Belmont Community Hospital, 2010-Ohio-3986 (7th Dist.) (holding that a plaintiff could sue a hospital based on traditional respondeat superior (employer-employee relationship) for claims of medical negligence even though no suit had been filed against the allegedly negligent employees.)

Votes to Accept the Case

Yes: Chief Justice O’Connor, Justices DeWine, Fischer, Kennedy, and Stewart

No: Justices Donnelly and Brunner

Heights Chiropractic’s Proposition of Law Accepted for Review

Once a physician/employee’s liability has been extinguished for alleged acts of malpractice the claimant can no longer pursue vicarious liability claims sounding in respondeat superior against the corporate employer of the physician.

Clawson’s Proposed Counter Proposition of Law

A plaintiff may pursue the undisputed employer of a defendant chiropractor when the individual employee has been dismissed.

Heights Chiropractic’s Argument

Ohio’s courts have split when applying this Court’s decision in Weurth. Some courts properly recognize that once an employee is no longer a party to the action, the employer cannot be held vicariously liable. But other courts, like the Second District in this case, have improperly held that vicarious liability claims may continue even after an employee’s dismissal. This case presents the Court with an opportunity to clarify its holding in Weurth and extend it to other classes of professional employees such as chiropractors.

Ohio courts have long held that an employer can be held vicariously liable for the negligence of its employees acting within the scope of their employment, but not after the employee’s direct claim is extinguished. This exception makes sense—when only the professional employee can be licensed to provide treatment, the employer lacks the element of control necessary to impose vicarious liability. Ohio has recognized this exception in the context of other medical professionals (Comer) and lawyers (Wuerth), but there is no reason it should not apply to other professional practices, such as chiropractors. The rationale and logic of the professional malpractice exception applies in full force here.

Instead of narrowly distinguishing this case from Wuerth and Comer due to the types of agency relationship at issue in those cases, the Second District should have simply applied Wuerth. Doing so produces one result: Heights Chiropractic is not vicariously liable once the individual liability of Dr. Bisesi no longer exists.

Clawson’s Argument

A plaintiff can pursue an action against an employee, an employer, or both. And a judgment against the employee does not bar an action or judgment against the employer. These principles are well-rooted in Ohio law, but appellants attempt to undermine them. There is no dispute that Dr. Bisesi was acting within his employment duties when he injured Crawford. Irrespective of whether Dr. Bisesi is or is not a party to the lawsuit, an action can be pursued against his undisputed employer, Heights Chiropractic. The Seventh District has dealt with a nearly identical case in Taylor v. Belmont Community Hospital. Just as the Seventh District held in Taylor, this Court should hold that even when a suit is not pending against a physician-employee, the plaintiff can still proceed against the employer. Thus, to maintain consistency across Ohio’s courts on this issue, the Second District’s decision should be affirmed.

Amici in Support of Heights Chiropractic

Ohio Hospital Association et al.

Amici, led by the Ohio Hospital Association, are professional medical associations and insurance companies that represent the majority of hospitals and physicians across Ohio. In addition to the OHA, amici include the Ohio State Medical Association, Ohio Osteopathic Association, Ohio State Chiropractic Association, Ohio Alliance for Civil Justice, Ohio Radiological Society, Ohio Insurance Institute, and the Academy of Medicine of Cleveland and Northern Ohio. Amici have a strong interest in the legal developments that affect their thousands of members and seek a proper balance between the right of injured persons to recover and ensuring expanded liability does not jeopardize healthcare delivery.

The Second District was wrong to hyper-focus on Wuerth and hold it only applies to part-owner agency relationships. Rather, Wuerth is much broader and applies to physicians, medical doctors, dentists, optometrists, and chiropractors. These professional employees play unique, independent roles in diagnosing and treating patients and under the Ohio Revised Code, can be individually responsible for medical malpractice. Thus, due to the unique nature of these professions, if the employed physician cannot be liable, neither can his or her corporate entity. This approach strikes a balance—plaintiffs are still not required to sue all non-physician employees at the outset of a case but also recognizes that corporate entities who employ physicians cannot be held liable when no primary liability for malpractice can be established.

Amicus in Support of Clawson

Ohio Association for Justice

The Ohio Association for Justice, comprised of over five hundred attorneys, is devoted to strengthening the civil justice system so that deserving individuals may secure fair compensation by holding wrongdoers accountable. Through this case, amicus is interested in clarifying the law in Ohio such that meritorious tort victims are not precluded from collecting on mere procedural grounds.  

Appellants confuse matters of substance and procedure. Just because an employee has procedurally been dismissed from a lawsuit does not mean that there is no substantive tort liability placed on the employer. Appellants, by advocating for an expansion of Wuerth, are really asking for a heightened pleading requirement for professional malpractice and forcing plaintiffs to individually sue employees in every case. But, for nearly a decade, the law has not required that—a plaintiff does not need to personally sue an employee/agent in order to establish liability against the employer/principal. Forcing plaintiffs to personally sue employee-physicians makes little sense and would have negative windfalls for plaintiffs. Wuerth is a narrow opinion, and this Court should make clear that in Ohio, like in the majority of other states, there is no need to individually sue an employee in order to establish vicarious liability against an employer.

Student Contributor: Brandon Bryer