What’s On Their Minds: Can a Negligent Credentialing Claim Survive Without a Final Determination of the Physician’s Liability? Michael Walling, Administrator of the Estate of Raeann Walling, Deceased v. Ransford S. Brenya, M.D., et al.

By Marianna Bettman on March 21, 2022

“What are the facts in your case that support the credentialing aspect of the claim?”

Justice Donnelly, to counsel for the administrator of Walling’s estate

“Are there different criteria for credentialing for employees who are doctors than independent contractors who are doctors?”

Justice Brunner, to counsel for The Toledo Hospital

On March 9, 2022, the Supreme Court of Ohio heard 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 the Lucas County Common Pleas Court. 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 credentialing 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 administrator of Walling’s Estate 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 appeals court 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.

Read the oral argument preview here.

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.”)

*cited by counsel at argument

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.

At Oral Argument

Arguing Counsel

Jeffrey T. Stewart, Johnson Law, PLC, Detroit, for Appellant Michael Walling, Administrator of the Estate of Raeann Walling, Deceased

James Brazeau, Robinson, Curphey, & O’Connell, LLC, Toledo, for Appellee The Toledo Hospital

Walling’s Argument

The issue before the Court is whether this Court will extend the rule that it set down in Evans v. Akron General Medical Center to a doctor who is ostensibly an independent contractor rather than an employee. The measure of control that a hospital has over a so-called independent contractor physician is very much the same as the control it has over employees. And it is questionable whether the distinction between an employee doctor and an independent contractor staff physician is meaningful in this context.

There is also not much difference between negligent hiring and negligent credentialing. The issue in both cases is whether the hospital has knowledge indicating that it should not be permitting the doctor to go forward at that hospital. The process is virtually identical.

In the medical malpractice portion of this case, Dr. Breyna missed a critical x-ray that would have told him that he was closing down the circulation between Raeann Walling’s heart and her lungs. This eventually led to her death about a month later. This was negligence.

A negligent credentialing cause of action proceeds on a very different premise. Negligent credentialing is a separate cause of action with separate proofs that must be met, and it is not respondeat superior.

In order to make a case of negligent credentialing, the plaintiff has to prove that a whole committee of doctors, when faced with evidence that the doctor was not competent or fit to be practicing, made a conscious decision to let him practice anyway. It’s a difficult cause of action to make. Additionally, the immunity statute for peer review contains presumptions in favor of the hospital for credentialing. And yet, the effect of negligent credentialing isn’t just to put one plaintiff in one case at risk. It is to put a whole host of patients at risk. The evidence in this case included testimony from a physician who testified that he was on the committee that handles electrophysiology issues at the hospital and that there had been prior issues with Dr. Breyna. This physician who testified, Dr. Richards, fought with the committee over Dr. Breyna and ended up resigning his position over it. And this was tantalizing and persuasive evidence the plaintiff was not allowed to take to its logical conclusion.

If the plaintiff loses against the doctor, and the hospital is in the case, that is binding on the plaintiff. But if the hospital is not participating, depending on the circumstances of why that is so, they might not be bound which relieves any perceived unfairness to the hospital because they can’t be submarined by what the doctor does—they get to defend it. The plaintiff could not deprive the hospital of a right to show that there is no proximate cause between its negligent credentialing and the plaintiff’s injury if it isn’t established that that doctor committed a tortious act that led to the harm.

The plaintiff is asking this Court to modify its decision in Schelling v. Humphrey by finding that it is not necessary to have a predetermination or absolute acknowledgement of the doctor’s negligence. The trial court should be able, in a case like this, to decide whether the negligent credentialing case is going to go forward, based on the evidence before the court. If the trial court finds that it is not sufficient to justify having the hospital defend the negligent credentialing case, then summary judgment should be granted to the hospital. To be fair, Schelling holds that the negligence of the physician must be established before evidence can be introduced on the negligent credentialing claim. The fear that was expressed by the defendants in this case and that was discussed by this Court in Schelling, that somehow the doctor will turn on the hospital, seems unrealistic. How is the doctor going to maintain credentials at that hospital or get them anywhere else if the hospital is being sued over what the doctor did, but the doctor says he will help the plaintiff rather than the hospital? That is an illusion. The plaintiff still must prove the doctor’s negligence before getting to prove negligent credentialing but would ask the Court to allow it to happen in one proceeding in a case like this.

Schelling creates an impossibility in a situation like this one where the plaintiff is faced with a Hobson’s choice. The settlement remains confidential, and its terms cannot be discussed. It is easy to imagine a situation where a plaintiff is offered policy limits, there is nothing more to gain, everybody wants to resolve the case, but the plaintiff has to go through the exercise of taking that case to a conclusion unless, as part of the settlement, he can get the doctor to admit all liability and thereby implicate the hospital.

In another circumstance, a doctor could enter into a confidential settlement agreement and admit liability. Schelling has then been met. But if instead the doctor admits all the elements in cross examination in trial or in a deposition, that also works. That’s a much more reliable indicator of liability, it’s a much better thing for the hospital which can be disadvantaged in a collusive settlement, but it can’t be when there is cross examination in a trial. What the plaintiff gave the hospital is more than they would get under Schelling in the admission context. It was not as good as a verdict, but better than an admission written into a settlement agreement that may never see the light of day. In the settlement agreement in this case, it was left a neutral issue. Dr. Breyna did not admit liability and the plaintiff did not admit he was not admitting it. What was said during cross-examination stands as far more persuasive evidence than an admission in a release that could be the product of a collusive agreement. At that point in the trial, the doctor does not know how it is going to end. It doesn’t have to be finally adjudicated. It just has to be enough to allow the plaintiff to go forward on the negligent credentialing claim.

The Toledo Hospital’s Argument

This case is completely consistent with the Court’s holding in Schelling. And in Evans, this Court found that Evans and Schelling were consistent with each other. There is a distinct difference between an employer/employee relationship and a physician that has staff privileges at the hospital. And there are some very significant differences between credentialing and hiring. For example, this physician was independent from the hospital. He was employed by a separate facility. Finally, this Court has made it very clear that hospitals as an institution don’t practice medicine.

The care at issue in this case not only occurred at the Pro Medica hospital. It also occurred at another hospital not part of Pro Medica and it also involved care in the physician’s office. So, this isn’t a scenario where all the care that is at issue was being provided at one facility and it’s not a situation where there’s an employer/employee relationship where the hospital is tasked with supervising the physicians in their daily activities. Regardless of whether he is an employee or an independent contractor, a physician needs credentials to practice at a hospital. While the same set of criteria are involved in the credentialing process, once an independent physician is credentialed, he isn’t being supervised by the hospital.

The opportunity to prove negligent credentialing was present in this case. Both ProMedica and the doctor were in the lawsuit. The trial that started would have bound the hospital by whatever determination was made about the physician’s liability. The hospital was in the case. The hospital and the doctor were there. Following the dictates of Schelling, the negligent credentialing claim was bifurcated from the physician’s negligence claim. And the physician settled without a determination of liability which this Court required in Schelling. If this case were to go back for that purpose, the case would have to be bifurcated again, to try the physician negligence separate from the negligent credentialing case. While there is a burden on the plaintiff to prove the case there’s also a burden on the hospital to defend the physician’s care without the physician being a party in the case.

In this case there was no determination of liability. There was just a bit of testimony. The doctor did not have a chance to testify on direct examination in the defense case. Every cause of action, every affirmative defense has elements that must be proven as part of the case, and it certainly can be argued that by having to prove a certain element as part of a cause of action could discourage settlements. The choice the plaintiff has is either to settle the case or wait until there has been a determination of liability by the jury. And that is a choice a plaintiff has to make which is part and parcel of a cause of action for negligent credentialing.

In this case, in granting summary judgment, the trial court found the testimony and cross-examination was lacking to constitute a prior determination of liability. The court of appeals in conducting a de novo review, looking at all the testimony, reached the same conclusion.

In Schelling the Court recognized that judicial economy and fairness is furthered by having the determination of liability for the physician established before proceeding with the negligent credentialing case. The two causes of action would have to be separately tried because you can’t try at the same time to the same jury issues in the credentialing claim which might include other instances of alleged negligence. The two cases can’t be tried together. They must be tried separately because a credentialing claim will include other acts.

In this case even though the hospital would be bound by the result of the trial, the hospital elected not to participate as a party because the doctor was being fully defended by a competent attorney, all the expert witnesses were there, there was really no role for the hospital to play at that point in defending the physician’s care.

There is some testimony in the record that touches on the negligent credentialing claim, but it only touches on that. It was one witness in a deposition that was not even completed and then discovery was stayed. So, the record in this case for any negligent credentialing claim is very much incomplete.

If there was a settlement where the doctor stipulates to liability, the hospital would argue that is not binding on the hospital because it is not a determination of liability. In this case, with the hospital as a party, with the right to have fully participated in the defense of the doctor’s care, clearly the result of that case, the law of the case would have bound the hospital with whatever the factfinder determined.

What Was On Their Minds

The Schelling Case

Is the plaintiff asking the Court to overrule Schelling, asked Justice Fischer? Or if asking that it be modified, in what way?

Schelling says that you have to prove that the doctor was negligent. Is that correct, asked Justice Stewart?

Why should the Court modify Schelling, asked Chief Justice O’Connor?

Is the only real difference the plaintiff is seeking from Schelling that liability doesn’t have to be finally adjudicated; it just has to be proven, asked Justice Brunner?

The Evans Case

Was Evans an employee, asked Chief Justice O’Connor? There was much more supervision and a nexus between Mr. Evans and Akron General?

What is the effect of Evans on this case, asked Justice Stewart?

The Effect of Settlement in this Case

The liability that is found or that occurs with the negligent doctor is not binding on the hospital because the hospital is not a party, correct, asked Justice Brunner? If the plaintiff gets over the hurdle of finding liability on the part of the doctor, it’s not a fait accompli for the hospital without the requisite proof? There was no disclaimer of liability in the settlement agreement, correct? Since there was no disclaimer of liability in the settlement agreement, the concern that seems to be in the briefs is if we were to apply the rule hard and fast as urged by the hospital, aren’t we going to be discouraging settlements?

Here you have a settlement that prevents a party from proving a cause of action, noted Justice DeWine. What should a plaintiff do in this situation, where he thinks he has a meritorious claim against a hospital for negligent credentialling and the doctor is willing to settle? Could there be a settlement where the doctor stipulates to liability? Would that be binding on the hospital? Could the doctor and the hospital reach a settlement but agree to allow the case to go to a verdict?

Couldn’t someone in the plaintiff’s situation still have the opportunity to prove that the doctor was negligent even though the doctor is not in the case, asked Justice Stewart?

There was no admission of liability in the case, noted Chief Justice O’Connor. There was the establishment of the testimony and then the curtain closed, and the settlement happened, and the physician walked away.

The Liability of the Doctor

Is the plaintiff relying entirely on what was said and done during the cross examination, asked Justice Brunner? Are there different criteria for credentialing for employees who are doctors than there are for independent contractors who are doctors? Or are the criteria the same?

Negligent Credentialing Claim

Does the plaintiff want to prove a doctor’s negligence within this negligent credentialling or hiring case without separately proving the doctor’s negligence in a first action, asked Chief Justice O’Connor? I’m presuming in the bifurcated case, in the first case against the physician to show negligence, it got only up to a certain point and the physician’s testimony was early in the case. So, there wasn’t a presentation of experts, she added. This particular physician was privileged at three different hospitals, she noted. Isn’t it much riskier for the plaintiff to pursue negligent credentialing as opposed to one incident of negligence that precipitated a settlement with a physician?

Is there any meaningful difference between negligent hiring and negligent credentialing, asked Justice Stewart? From a legal analysis standpoint? Assuming we find no meaningful difference between the two, what about the liability on the doctor being present before you can go forward with a negligent credentialing claim, and in this case, the doctor is no longer in the case? Here we are just talking about whether the plaintiff can continue with the negligent credentialing case, not whether she wins, Stewart added. Why can’t the burden to show that the doctor was negligent still exist? And if you can’t meet that burden, there is no liability. We’re not talking about using the terms of the settlement. Just an independent showing. Could a plaintiff bring two separate suits? Let’s say there were two separate lawsuits but the exact same thing happened—the physician settled, and in the second case the hospital would move for summary judgment or a dismissal because the facts are the same. They are just two different cases. Settlement is the same. There is no admission of liability. If this Court decides in the hospital’s favor, the hospital would say everyone was there at the same time, the hospital and doctor were there and the doctor did not admit liability therefore the hospital is out.

If the doctor and the hospital are in the same lawsuit and the doctor settles and is out, that testimony is still there in the lawsuit so couldn’t the court just move on to the negligent credentialing question and use the testimony that’s already in the matter, asked Justice Brunner? It would be a starting point for the plaintiff to still have to prove liability as a gatekeeper issue. That way the risk that the hospital talks about when the plaintiff decides to settle without either an admission or denial of liability still leaves that question open for the court to determine. I guess I don’t understand why Schelling would preclude that.

What are the strongest facts supporting the negligent credentialing claim, asked Justice Donnelly? This can create a Hobson’s choice for the doctor, he added. If the doctor believes he is not negligent but believes based on the plaintiff’s case there is risk the doctor can settle the case but even if he settles the case -and when people settle a case they want it over with—the doctor is drawn into another litigation and must defend himself because the plaintiff still has to prove causation.

How it Looks from the Bleachers

To Professor Emerita Bettman

The Chief and Justices Stewart and Brunner did almost all the talking and seemed to want to find a way to allow the negligent credentialing claim to be determined in the same lawsuit as the malpractice action. I agree, but am curious as to the way they think this can and should be done. Justice DeWine put his finger right on it when he asked what a plaintiff should do in this situation, where he thinks he has a meritorious claim against a hospital for negligent credentialing, but the doctor is willing to settle. One final thought-negligent credentialing is a very difficult tort to prove and it was impossible to tell from this argument whether this case has anywhere near the evidence necessary to do so.

To Student Contributor Liam McMillin

Chief Justice O’Connor, and Justices Stewart and Brunner did most of the speaking on behalf of the Court, and I think Justice Stewart outlined a potential way forward for the Court that may bring a couple justices with her. She seems to be hinting at a way to not overrule Schelling—which Chief Justice O’Connor would likely be happy to avoid, as too would Jeffrey Stewart, on behalf of Walling, who does not want to use the “o-word,” as he says—by simply allowing the plaintiff to keep the suit alive against the hospital, and not ending the claim entirely. Why not just let the plaintiff prove liability, Justice Stewart seems to ask?

James Brazeau would argue that this runs against judicial efficiency (which, to this student contributor, is my least favorite argument). But Brazeau made a telling admission in the final minutes of his argument. Justice DeWine asked Brazeau, if the physician in his or her settlement admits liability, should that also be binding on the hospital in a negligent credentialing claim? Brazeau, without much hesitation, told the Court that the hospital should not bound by that “determination” (in the Schelling sense), and should be able to defend it. Where is the judicial economy now? Brazeau made some strange arguments about having to find witnesses again, if the case was allowed to continue, but this was cut short by the Justices.

I think the most likely outcome of this case comes from Justice Stewart: Schelling need not be overruled, but a settlement between a plaintiff and a physician, without an admittance of liability, should not be considered a “determination” under Schelling. Justice Brunner seems behind the idea, and Chief Justice O’Connor is at least open to it. It seems the Justice DeWine has some questions about the fairness of the application, and even Justice Donnelly asked questions about what Walling could prove, had it gone forward, signaling some forward thinking as well.