On March 9, 2022, the Supreme Court of Ohio will hear oral argument in Michael Walling, Administrator of the Estate of Raeann Walling, Deceased v. Ransford S. Breyna, M.D., et al, 2021-0241. At issue in this case is whether a party can maintain a negligent credentialing claim against a hospital when the doctor in question conceded at trial the underlying elements of a medical negligence claim, but the doctor’s claim was settled prior to a jury verdict.

Case Background

On April 26, 2014, Raeann Walling suffered a fatal pulmonary vein stenosis. Walling’s death was a consequence of the repeated catheter ablation procedures Dr. Ransford Brenya was using to treat Walling’s genetic catecholaminergic polymorphic ventricular tachycardia and his failure to recognize and address her pulmonary vein stenosis.

Walling’s estate sued Brenya for medical malpractice and added a claim against The Toledo Hospital for negligent credentialing, based on the Hospital’s hiring and retention of Brenya. (Brenya’s partner and their professional corporation were also sued but they are not involved in this appeal.)  The trials were bifurcated and the case against the hospital stayed pending the outcome of the case against Brenya.  In late January 2019, the jury trial on the claims against Brenya began in front of Lucas County Common Pleas Court Judge Ian B. English. On cross-examination, Brenya testified that he did not remember reviewing an x-ray of Walling that showed a potential pulmonary obstruction and conceded that not reviewing a patient’s records was below the standard of care. He testified that if he had seen the records, the reasonable standard of care would have been to order a CT scan, which he admits he did not do, and thus did not discover the pulmonary vein stenosis. He testified that once he did discover the pulmonary vein stenosis, he immediately referred Walling to the University of Michigan, but shortly after her referral, she started displaying symptoms of pulmonary hypertension, which could have been avoided with prompt treatment.

However, before the conclusion of the trial, Walling’s estate entered into a settlement agreement with Brenya. The settlement agreement included standard language admitting no liability by Brenya or the corporation. The agreement also specifically stated that nothing in it released or affected the pending claims against The Toledo Hospital.

Because of the settlement, Walling’s estate dismissed the medical malpractice claim against Brenya and the other defendants except the Hospital. The Hospital then moved for summary judgment on the negligent credentialling claim, arguing that to bring a negligent credentialing claim, there must be a prior determination that the provider of care committed medical malpractice. Since no determination was made by the jury, or stipulated in the settlement, Walling’s claim against the Hospital must fail. Walling’s estate argued that Brenya’s testimony during the trial constituted a concession of negligence, and thus was enough to pursue a negligent credentialing claim. The trial court granted the Hospital’s motion for summary judgment, holding that Brenya’s “concession” on cross examination did not constitute an adjudicated determination or stipulation that Walling’s death was proximately caused by Brenya’s negligence. The Wallings appealed.

The Appeal

On appeal, in a unanimous decision, the Sixth District affirmed the trial court’s granting of the Hospital’s motion for summary judgment. The opinion, written by Judge Mark L. Pietrykowski and joined by Gene A. Zmuda, and David A. D’Apolito (sitting on assignment from the Seventh District), held that to maintain a negligent credentialing claim, the plaintiff must be able to show a determination, either by adjudication or stipulation, that the plaintiff’s injury was proximately caused by the doctor’s malpractice. The court held that Brenya’s testimony on cross-examination was neither a determination nor a stipulation, but merely evidence that would have been presented to the jury if the claims had not settled. Walling’s estate argued that the settlement agreement specifically stated that the release did not bar their claim against the hospital, but the court held that it is not that the release itself precludes the negligent credentialing claim, but rather that the plaintiff had failed to obtain a prior determination that Brenya was medically negligent and that his negligence proximately caused Walling’s injury. Thus, the motion for summary judgment as to the negligent credentialing claim against the Hospital was affirmed.

Votes to Accept the Case

Yes: Chief Justice O’Connor, Justices DeWine, Donnelly, Stewart, and Brunner

No: Justices Kennedy and Fischer.

Key Statutes and Precedent

R.C. 2307.28 (“When a release . . . is given in good faith to one of two or more persons for the same injury or loss to person or property or the same wrongful death, both of the following apply: (A) The release or covenant does not discharge any of the other tortfeasors from liability . . . but it reduces the claim against the other tortfeasors to the extent of the greater of any amount stipulated by the release or the covenant or the amount of the consideration paid for it . . . (B) The release or covenant discharges the person to whom it is given from all liability for contribution to any other tortfeasor.”)

Albain v. Flower Hosp., 50 Ohio St.3d 251 (1990) (A negligent credentialing claim is one in which “an employer [hospital] may be directly liable for injuries resulting from its own negligence in selecting or retaining an independent contractor.”)

Schelling v. Humphrey, 2009-Ohio-4175 (To succeed on a negligent credentialing claim, a plaintiff must “obtain a prior determination that a doctor committed medical malpractice and that the malpractice proximately caused the plaintiff’s injury.”)

Evans v. Akron Gen. Med. Ctr., 2020-Ohio-5535 (A plaintiff “is required to prove a wrong recognized as a tort or crime . . . to support its claim for negligent hiring, supervision, or retention,” but there is “no requirement that a plaintiff prove that an employee of the defendant has been found by a court to be civilly liable or guilty of a criminal offense regarding the employee’s conduct.”)

Boggia v. Wood Cty. Hosp., 2010-Ohio-4932 (6^th Dist.) (The court dismissed a negligent credentialing claim against a hospital when the plaintiff settled with the physician “without obtaining any concession from the doctor as to her alleged negligence/liability.”)

Walling’s Proposed Proposition of Law

Negligent credentialing confers a duty upon hospitals that is separate from and independent of the duty a physician owes to its patients and therefore can exist in the absence of prior adjudication or stipulation that the physician was negligent.

Walling’s Argument

Negligent credentialing is an independent claim for the direct liability of the hospital, and if the Sixth District’s decision is affirmed, plaintiffs will be put in the position of needing to decide between taking a fair settlement offer and continuing a claim against the hospital.

Rigid application of Schelling to require a prior determination, only through adjudication or stipulation, in every case is illogical and impractical.  In this particular case, Brenya essentially admitted the elements of his negligence at trial. Although proximate cause is an essential element of a negligent-credentialing claim, on summary judgment it should be treated as a question of fact. This Court in Evans held that an adjudication of civil or criminal liability on the part of an employee is not required for a plaintiff to maintain a separate, independent cause of action, against the employer for failure to properly hire, supervise, or retain the employee. Here, as in Evans, there is still a genuine issue of material fact as to proximate cause, and thus, summary judgment is inappropriate.

This case is also different than Boggia, where liability was clearly extinguished via settlement. Because Brenya admitted the facts necessary to prove the elements while under oath, he conceded his own negligence and causation. Additionally, Brenya’s concession is similar to an adjudication.

Because the trial was bifurcated, the Hospital was not present during the physician’s trial, and thus would not be bound by the result in that half of the trial, which benefits the Hospital. But now, the Hospital also wants to rely on the fact that there was no dispositive finding as to them in the other half of the trial. They can’t have their cake and eat it too. Neither res judicata, issue preclusion, or law of the case apply here.

Finally, this application of Schelling and Boggia provides more protection to hospitals than the previous two cases intended. As such, the Sixth District’s decision should be reversed, and the Hospital’s motion for summary judgement denied.

The Toledo Hospital’s Argument

After Reann Walling’s death, Michael Walling filed medical malpractice claims against Dr. Breyna, his partner, and their professional corporation. After Dr. Breyna’s deposition, Walling added a negligent credentialling claim against the Toledo Hospital and the claims were bifurcated. The malpractice case was settled after three days of trial.

After the settlement of the medical negligence claims, the trial court granted summary judgment to The Toledo Hospital on the negligent credentialling claim based on Walling’s failure to prove medical negligence.  

A negligent credentialing claim requires plaintiff to prove two prongs of proximate cause: (1) that the doctor in question committed medical negligence, and (2) that a causal link exists between the hospital’s negligence in credentialing the doctor and the plaintiff’s alleged harm. Schelling is directly applicable here and states the rule that the plaintiff must obtain a prior determination of negligence on the part of the doctor. Without that determination, the negligent credentialing claim fails as a matter of law.

Evans is inapplicable here because Evans involved an employee of the hospital-defendant; Brenya is not an employee of The Toledo Hospital, but an independent physician, and the Hospital did not control his practice as an employer would. 

Additionally, medical negligence cannot be proven merely by eliciting testimony on cross-examination, but rather, requires the factfinder to analyze all the evidence presented under an appropriate standard.

Finally, applying Schelling here does not negatively impact settlements because physicians are still incentivized to vigorously defend their cases, and plaintiffs are still able to include stipulations of negligence in the situations where the evidence clearly shows it.

The Court should affirm the Sixth District’s decision and uphold the Hospital’s motion for summary judgment.

Amici in Support of The Toledo Hospital

Ohio Hospital Association and Ohio Association of Civil Trial Attorneys

The Ohio Hospital Association (“OHA”) is comprised of 243 hospitals and 15 health systems in Ohio and advocates for healthcare legislation and policy in the best interest of hospitals. The Ohio Association of Civil Trial Attorneys (“OACTA”) is comprised of attorneys and other individuals devoted to the defense of civil lawsuits and promoting justice.

Both OHA and OACTA argue that in order to prove a negligent-credentialing claim against a hospital for the conduct of a physician, the plaintiff must prove that the doctor breached the appropriate standard of care and that the breach caused the plaintiff’s injury.  A  cross-examination of the physician cannot satisfy this threshold requirement. The negligent credentialling claim only goes forward if there is a prior finding of malpractice against the physician.

OHA and OACTA also argue that this decision does not have the effect that Walling believes that it will, but rather, promotes judicial economy and still leaves control of the claim with the plaintiff. Schelling remains good law and should be followed here.

Student Contributor: Liam McMillin