“Is there anything in Wuerth that specifically limits it to the set of facts which were a law practice?”

Chief Justice O’Connor, to counsel for Heights Chiropractic

“What is your best argument for why Wuerth should not be expanded to other professional organizations outside of a law firm or lawyer relationship?”

Chief Justice O’Connor, to counsel for Clawson

On January 26, 2022, the Supreme Court of Ohio heard oral argument in Cynthia Clawson v. Heights Chiropractic Physicians, LLC, et al., 2020-1577. At issue in this case is whether an employer can be held liable 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 lying 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, the trial court judge dismissed the complaint against Dr. Bisesi 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 unanimously 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.

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 doing so, 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.)

R.C. 2305.11 (outlining the class of Ohio employees that can be liable for malpractice to include attorneys, law firms, a legal professional association, those practicing medicine, dentists, optometrists, and chiropractors.)

* Cited by counsel at argument

At Oral Argument

Arguing Counsel

Jacob E. Bischoff, Patsfall Yeager & Pflum LLC, Cincinnati, for Appellant Heights Chiropractic Physicians, LLC

Patrick J. Conboy, Staton Fisher & Conboy LLP, Huber Heights, for Appellee Cynthia Clawson

Heights Chiropractic’s Argument

Initially, both Heights Chiropractic and Dr. Bisesi were sued and served, but then the case was dismissed and re-filed. It was in this re-filing that Clawson failed to serve Dr. Bisesi, and it was that failure of service that resulted in the trial court granting summary judgment dismissing Dr. Bisesi. The court of appeals overturned that ruling. Heights Chiropractic asks that the court of appeals be reversed, and the judgment of the trial court reinstated.

Heights Chiropractic cannot practice chiropractic medicine. Only a chiropractor can, just as only a lawyer, and not a law firm, can practice law, and only a physician, not a professional practice, can practice medicine. Thus, there is no patient/provider relationship between Heights Chiropractic LLC and Ms. Clawson. Since the liability of Dr. Bisesi had been eliminated for failure of service, the secondary liability of Heights Chiropractic through respondeat superior should also be extinguished. Although Wuerth dealt with a law firm, in reaching that decision the Court strongly analogized to the practice of medicine. That is the main reason why Wuerth should be applied and expanded to reach the practice of medicine. The reach of Wuerth should be expanded to the practice of medicine because the practicalities, realities, reasoning, and logic of Wuerth hold up, even in the practice of medicine.

Heights Chiropractic is not asking the Court to establish new law. Wuerth is the controlling law. Wuerth did not change the fundamental principles of respondeat superior, but rather acknowledged that there are exceptions to the fundamental standards and principles in cases where professional licensure is at play, and that when the liability of the employee, a chiropractor in this case, has been substantively and unequivocally extinguished there’s no vicarious liability by means of respondeat superior left for the employer. This is true regardless of who pays for the malpractice insurance. Heights Chiropractic is not arguing that Losito should be overturned; Heights Chiropractic simply believes that Wuerth recognizes an exception to the standards and principles of traditional respondeat superior liability and that Wuerth should be extended into the fields of chiropractics and medicine.

Ohio’s trial courts have applied Wuerth inconsistently and inaccurately. The language and logic of Wuerth should apply across the board to include the practice of medicine, including chiropractic. There isn’t any reason to expand it any further than what Wuerth did. In situations where there is a malpractice claim against a professionally licensed individual and that claim has been unequivocally extinguished then there can be no vicarious liability through the theory of respondeat superior on the employer, in this case the chiropractic clinic. The law has always held physicians and lawyers to a higher standard. In Ohio, malpractice can only be committed by lawyers and doctors. Extending Wuerth to reach chiropractics or medicine would not be too far or too broad.

Clawson’s Argument

Heights Chiropractic is asking the Court to go back and change at least 80-year-old settled law regarding respondeat superior between employer and employee. That is an extreme remedy. No one disputes the defendant chiropractor in this case was an employee of Heights Chiropractic. The law is clearly established and the court of appeals properly held that in an employer/employee relationship, the plaintiff may sue the employer or the employee or both.

Ms. Clawson was a client and a patient of Heights Chiropractic. She appeared at Heights Chiropractic to be treated. When she went there she was treated by various employees of Heights Chiropractic, one of them being the defendant in this case. She was then billed by Heights Chiropractic and paid the bill to Heights Chiropractic.

Both the Second District and the Seventh District have found that Wuerth did not involve an employer/employee relationship. It is wholly inapplicable to this situation where there is an employer/employee relationship. Wuerth was a part owner of the law firm. He was not an employee.

There are many other professionally licensed employees in Ohio, including funeral directors, pathologists, and various other persons who require heightened certification but can still be employees. Chiropractors are more like those employees than what was at issue in Wuerth.

Ms. Clawson would urge the Court not to disturb what is settled law between employees and employers and to uphold the Second District’s opinion which is also very much on point with the Seventh District which found in Taylor v. Belmont Community Hospital, a very similar case,that the hospital still could be pursued even though there was no pending case against its employee doctor or nurse or other professional.

What Was On Their Minds

Wuerth

Didn’t Wuerth itself say that the plaintiff may choose to proceed only against an employer, asked Justice Brunner? In citing Losito in Wuerth it seems like the Court was really more focused on whether the plaintiff’s judgment had been satisfied. If it’s satisfied, it gives the employer the third-party ability to go after the tortfeasor, in this case Dr. Bisesi. Wuerth was specifically limited to a law practice and attorneys. Aren’t there differences between that case and this one?  Licensure makes them similar, but this doctor actually physically performed the chiropractic move on Ms. Clawson which she claimed ruptured her implant. If it were a law firm the mistake could have been made by a paralegal or an associate or even an administrative assistant, and that still would be malpractice. What’s the difference between employees and associates?

Is there anything in Wuerth that specifically limits it only to a law practice, asked Chief Justice O’Connor? What is the best argument for why Wuerth should not be expanded to other professional organizations outside of a law firm or lawyer relationship? If the Court does expand Wuerth where do we stop? Is this just a benefit to licensed professional individuals? If we were to extend this right, would it apply to other professional organizations such as civil engineering firms?

My reading of Wuerth makes no distinction between employer and employee, noted Justice DeWine. There’s no language that suggests it only applies to part owners. We answered a certified question that was much broader than that. Didn’t Wuerth make it clear that if this person was an associate, it still would apply? If Wuerth doesn’t apply in a case such as this it can’t be because of the employer/employee distinction because that wasn’t at issue in Wuerth. It must be for some other reason, right? No one disputes that the holding in Wuerth would apply to an associate just as much as the partner, right? But it would not apply to employees who are not in the malpractice statute, would it? Wouldn’t it only apply to those occupations listed in R.C. 2305.11-medical claims, dental claims, optometric claims, chiropractic, and legal malpractice claims?

Respondeat Superior

Wasn’t Dr. Bisesi an employee of Heights Chiropractic, asked Justice Brunner? What happens if the employer pays for the malpractice insurance? If someone is so beholden to a corporation to the point that they cannot practice outside of the work for that corporation because the only malpractice insurance is held by the corporation, here Heights Chiropractic, then if by some technical defect such as a failure to perfect service because it was served at the wrong address there is no recourse for an injured plaintiff, is there? Respondeat superior is long established law. It doesn’t matter that Losito was decided in 1940. That just shows how established that law is.  It goes back even before 1940. Isn’t Heights Chiropractic asking for a major change in what the common law has been in this state? In this case Ms. Clawson didn’t have any choice as to who she saw. She showed up and she was given the technician to work on her. Whereas if you go to a doctor or a lawyer you may be choosing who you are going to be seeing.

Other Licensed Professionals

Why should this be limited to employees who can face malpractice, asked Justice Brunner? Let’s say we have some kind of civil engineer who designs a bridge and the bridge collapses at some point and it turns out that the civil engineer made a huge mistake in the design of the bridge. Many people were injured, and many people died. If the civil engineer has died is there no liability for the civil engineering firm?

How it Looks from the Bleachers

To Professor Emerita Bettman

Only the Chief and Justices DeWine and Brunner asked any questions, and this probably will be a split decision with Justices DeWine and Brunner disagreeing with each other (Brunner for Clawson, DeWine for the Clinic) but I think the Court will extend Wuerth to those occupations listed in R.C. 2305.11. The Court has tended to treat medical professionals and legal ones similarly in tort cases. Here are two pertinent quotes from the opinion in Wuerth

“When analyzing issues that relate to malpractice by attorneys and physicians, we have often drawn upon the similarities between the legal and medical professions.” 

“Thus, our precedent concerning medical malpractice is instructive, and in the medical context, we have recognized that because only individuals practice medicine, only individuals can commit medical malpractice.” 

And, quoting from  Thompson v. Community Mental Health Ctrs. of Warren 

“[i]t is well-established common law of Ohio that malpractice is limited to the negligence of physicians and attorneys.”

To Student Contributor Brandon Bryer

I sense that the Chief Justice’s vote will decide this case. And as the Chief correctly put it, the narrow question in this case is whether Wuerth should be expanded to other professional capacities or limited to law firms. I anticipate, both from the questioning at oral argument and general judicial philosophy, that Justices Brunner, Donnelly, and Stewart will want to limit Wuerth, Justices DeWine, Kennedy, and Fischer will vote to expand it.  

Ultimately, I predict Heights Chiropractic will win and Wuerth will be expanded. I am really intrigued by the argument here: the employers of professionals who can face malpractice liability and have separate licensure requirements are of a different breed in the vicarious liability context. I do find it odd (from a substantive tort law standpoint) that the parties only focus on the control element because respondeat superior is about so much more, such as benefits to the employer. But this is a unique procedural, fact specific case that has sufficient limiting principles not to span too broadly. This case will likely have broader implications down the road, but I think the Court will be comfortable taking the same incremental, small step approach here that it did in Wuerth.