Summary
Under Ohio law, an employer cannot be held vicariously liable under respondeat superior for an employee's medical malpractice if the direct claim against the employee is extinguished—here, by failure to timely serve the chiropractor and expiration of the statute of limitations. The Ohio Supreme Court held that the rule from *Natl. Union Fire Ins. Co. v. Wuerth*—barring vicarious liability when no individual is liable—applies equally to medical malpractice claims. Because the plaintiff's right of action against the chiropractor was extinguished by operation of law, the chiropractor's employer could not be held vicariously liable. The court reversed the court of appeals and reinstated summary judgment for the employer.
Topics
Practice areas
Questions Presented
- Whether a plaintiff may prevail on a claim of chiropractic malpractice against a chiropractor's employer under the doctrine of respondeat superior when the expiration of the applicable statute of limitations has extinguished the chiropractor's direct liability for the alleged malpractice.
Holdings
- A medical employer cannot be held vicariously liable for malpractice under respondeat superior when the direct claim against the employee is time-barred or otherwise extinguished by operation of law.
Key quotations
“Today, we hold that the rule stated in Wuerth applies equally to claims of vicarious liability for medical malpractice.” (¶ 32)
“Because Clawson had failed to timely serve Dr. Bisesi with her refiled complaint, and because the statute of limitations on her claim against Dr. Bisesi had expired, Clawson's right of action against Dr. Bisesi was extinguished by operation of law. As a result, Heights Chiropractic, as Dr. Bisesi's employer, may not be held vicariously liable for Dr. Bisesi's alleged malpractice.” (¶ 33)
“Although a party injured by an agent may sue the principal, the agent, or both, a principal is vicariously liable only when an agent could be held directly liable.” (¶ 20)
Factual background
On November 7, 2014, Cynthia Clawson received chiropractic treatment from Dr. Don Bisesi at Heights Chiropractic Physicians, L.L.C. Clawson alleged that Bisesi applied excessive pressure to her back while she was lying face down, causing her left breast implant to rupture. She sued Bisesi and Heights for malpractice in 2016, voluntarily dismissed in 2017, and refiled in August 2018 within Ohio's saving statute. Clawson attempted to serve Bisesi by FedEx at a Florida address, but Bisesi had moved before the refiling and did not receive the summons. The trial court dismissed Bisesi for failure of service, and because the statute of limitations had expired, Clawson could not refile against him.
Procedural history
Clawson sued Dr. Bisesi and his employer Heights Chiropractic for medical malpractice. She voluntarily dismissed and refiled within the saving statute. She failed to perfect service on Bisesi. The trial court dismissed Bisesi for failure of service and then granted summary judgment to Heights, holding that vicarious liability could not survive when the direct claim was extinguished. The Second District Court of Appeals affirmed the dismissal of Bisesi but reversed summary judgment for Heights, allowing the vicarious liability claim to proceed. The Ohio Supreme Court accepted discretionary appeal.