[Cite as Moore v. Mt. Carmel Health Sys.,

.]

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT FRANKLIN COUNTY

MICHAEL MOORE, CONSERVATOR : OF THE PERSON AND ESTATE OF : JUSTIN T. MOORE : Appellate Case No. 2017APE-10-754 : Plaintiff-Appellant : Trial Court Case No. 15-CVA-005683 : v. : (Civil Appeal from : Common Pleas Court) MOUNT CARMEL HEALTH SYSTEM : dba MOUNT CARMEL ST. ANN’S : HOSPITAL, et al.

Defendants-Appellees

...........

OPINION

Rendered on the 15th day of December, 2020

...........

DAVID I. SHROYER, Atty. Reg. No. 0024099, 536 South High Street, Columbus, Ohio 43215 Attorney for Plaintiff-Appellant

GRIER D. SCHAFFER, Atty. Reg. No. 0039695, 2075 Marble Cliff Office Park, Columbus, Ohio 43215 Attorney for Defendant-Appellee, Mount Carmel Health System dba Mount Carmel St. Ann’s Hospital

THEODORE M. MUNSELL, Atty. Reg. No. 0022055, JOEL E. SECHLER, Atty. Reg. No. 0076320, and EMILY M. VINCENT, Atty. Reg. No. 0086931, 280 Plaza, Suite 1300, 280 North High Street, Columbus, Ohio 43215 Attorneys for Defendants-Appellees, Central Ohio Anesthesia, Inc. and Eric Humphreys, M.D.

............. -2-

WELBAUM, J.

{¶ 1} This case is before the court pursuant to a remand from the Supreme Court

of Ohio. See Moore v. Mt. Carmel Health Sys., Ohio Slip Opinion No.

,

___ N.E.3d ___, decided on August 20, 2020. After remand, this matter was reinstated

to the regular docket of the Tenth District Court of Appeals on September 10, 2020.

Based on the Supreme Court of Ohio’s instructions, we will consider the assignment of

error that was rendered moot by our prior opinion. Before doing so, we will briefly discuss

the factual and procedural background of the case.

I. Facts and Course of Proceedings

{¶ 2} Our prior opinion set forth the following background:

This case arose from the Appellees’ medical treatment of Justin

Moore (“Justin”) in December 2013 and January 2014. According to the

complaint, Justin received medical care from Dr. Wesley Forgue, the

Dialysis Center of North Columbus, The Little Clinic, and two nurses during

December 2013 through January 2014. The complaint further alleged that

these parties failed to properly treat Justin when he presented for treatment

of a cough and during hemodialysis, which caused Justin to be transferred

on an emergency basis to Mouth Carmel [Mount Carmel Health System dba

Mount Carmel St. Ann's Hospital] on January 20, 2014. In addition, the

complaint alleged that when Justin was treated at Mount Carmel on January

20, 2014, Dr. Humphreys and others failed to properly and timely perform

endotracheal intubation, which resulted in hypoxia, cardiac and respiratory -3-

arrest, and a permanent anoxic brain injury. These events, in turn,

allegedly caused Justin permanent injury, including loss of his ability to walk

and care for himself, impairment of his speech and communication ability,

and other debilitating injuries.

On July 10, 2014, the Cuyahoga County Probate Court appointed

[Michael] Moore conservator of Justin's person and estate. Moore

subsequently filed a pro se medical malpractice action against Mount

Carmel, COA [Central Ohio Anesthesia, Inc.], Dr. Humphreys, Dr. Wesley

Forgue, the Dialysis Center of North Columbus, The Little Clinic, and two

nurses who had treated Justin before his admission to Mount Carmel.

COA was the medical practice that employed Dr. Humphreys.

Moore v. Mt. Carmel Health Sys.,

,

(10th Dist.),

reversed by Ohio Slip Opinion No.

, ___ N.E.3d ___.

{¶ 3} Moore later dismissed various defendants without prejudice, leaving Mount

Carmel, COA, and Dr. Humphreys as the remaining defendants. Although the complaint

had been filed within the applicable statute of limitations, Moore failed to serve Dr.

Humphreys within the one-year service period designated in Civ.R 3(A). As a result, Dr.

Humphreys and COA filed a motion for summary judgment in February 2017, contending

that Moore’s action was barred. Id. at ¶ 12. Although Mount Carmel was properly

served with the complaint, it filed a motion for summary judgment based on the fact that

the lack of service on Dr. Humphreys meant that Moore had no viable claim for vicarious

liability against Mount Carmel. Id. After the motions were filed, Moore requested

service by personal and certified mail on Dr. Humphreys, and service was eventually -4-

obtained in March 2017. Id. at ¶ 13.

{¶ 4} In September 2017, the trial court rendered summary judgment in favor of

Mount Carmel, COA, and Dr. Humphreys, and dismissed the case with prejudice. Id. at

¶ 16. “The court concluded that service was not properly made on Dr. Humphreys until

March 2017, and that the savings statute in R.C. 2305.19 did not apply. Additionally, the

court held that Mount Carmel could not be held liable because Dr. Humphreys was not

an employee and the expiration of the statute of limitations against Dr. Humphreys

extinguished any secondary liability of the hospital.” Id. at ¶ 16-17.

{¶ 5} “Finally, the court rejected Moore's claims against COA on two grounds.

The first ground was that if no action could be maintained against Dr. Humphreys, COA

would not be liable on the basis of respondeat superior. The court's second ground was

that, even if claims could be brought against an employer for the acts of traditional

employees who had been dismissed from an action under the statute of limitations, Dr.

Humphreys was a part-owner of COA rather than a traditional employee.” Id. at ¶ 18.

{¶ 6} Moore then appealed the summary judgment decision. On appeal, he

claimed that the trial court erred by failing to apply the savings statute when the original

complaint failed otherwise than on the merits and his request for service on Dr.

Humphreys acted as a refiling of the complaint within one year of the failure. Id. at ¶ 1.

Based on this reasoning, Moore also argued that the trial court erred in dismissing the

vicarious liability claims against Mount Carmel and COA. Id. Moore’s final assignment

of error maintained that the trial court erred in dismissing his respondeat superior claims

against COA because Dr. Humphreys was an employee, not a partner or co-owner of the

corporation. Id. -5-

{¶ 7} Our opinion, which was issued in July 2018, sustained Moore’s first two

assignments of error and reversed the judgment of the trial court. Because this allowed

Moore to pursue his claims against all three defendants, we found the third assignment

of error to be moot. Id. at ¶ 141-146.

{¶ 8} Concerning the first assignment of error, we held that R.C. 2305.19 (the

savings statute) requires only that an action be filed within the statute of limitations, that

the plaintiff commence or attempt to commence the action with the one-year service

period in Civ.R. 3(A), and that the action fail otherwise than on the merits after the

limitations period has expired. Furthermore, we held that while Moore did not dismiss

the action and refile it, his request for service on Dr. Humphreys resulted in a dismissal

of the complaint and a refiling. Such a dismissal was a failure otherwise than on the

merits, and service was properly made on Dr. Humphreys within one year after the failure

otherwise than on the merits, even though the statute of limitations for the medical

malpractice action expired in 2015. Id. at ¶ 26-94.

{¶ 9} Alternatively, we held that “even if we concluded that the trial court should

have dismissed the complaint because service was not obtained within one year, we

would modify the judgment so that the dismissal would be without prejudice.” Id. at ¶ 94.

{¶ 10} Our opinion also rejected Mount Carmel’s claim that the complaint was a

nullity and the action was never “commenced” within the statute of limitations because

Moore was not a real party in interest and could not legally file a pro se action on Justin's

behalf. Id. at ¶ 96-132. Mount Carmel, COA, and Dr. Humphreys did not challenge

this holding when appealing to the Supreme Court of Ohio.

{¶ 11} After our opinion was issued, Mount Carmel filed a notice of appeal and a -6-

memorandum in support of jurisdiction with the Supreme Court of Ohio on August 30,

2018. The appeal was docketed as Supreme Court Case No. 2018-1233. The sole

proposition of law Mount Carmel raised was that:

R.C. 2305.19 Does Not Extend the Time to Obtain Personal

Jurisdiction to Commence an Action as Provided by Civ.R. 3(A) and the

Applicable Statute Of Limitations.

Appellant Mount Carmel Health dba Mount Carmel St. Ann’s Hospital’s Memorandum in

Support of Jurisdiction, p. 8.

{¶ 12} On August 31, 2018, COA and Dr. Humphreys filed a “second notice of

appeal” and a memorandum in support of jurisdiction in Case No. 2018-1233. Their sole

proposition of law, similar to the one Mount Carmel raised, stated that:

A Plaintiff’s Failure To Serve The Defendant Before the Expiration Of

the Statute of Limitations and the One-Year Commencement Period Set

Forth in R.C. 2305.17 and Civ.R. 3(A) Is a Failure on the Merits as a Matter

of Law.

Memorandum In Support of Jurisdiction of Appellants Eric Humphreys, M.D. and Central

Ohio Anesthesia, Inc., p. 9.

{¶ 13} Subsequently, on October 17, 2018, Mount Carmel filed a notice of

certification of a conflict, and the appeal was docketed as Supreme Court Case No. 2018-

1479. COA and Dr. Humphreys joined that appeal as well on October 18, 2018. Again,

the only issue raised related to the interplay of R.C. 2305.17 and Civ.R 3(A).

{¶ 14} On November 28, 2018, the Supreme Court of Ohio issued an order

certifying a conflict and directed the parties to brief the following issue: -7-

“Does the Ohio savings statute, R.C. 2305.19(A), apply to an action in which

a plaintiff attempts, but fails to perfect service on the original complaint

within one year pursuant to Civ.R. 3(A)? If so, when a plaintiff files

instructions for service after the Civ.R. 3(A) one-year period, does the

request act as a dismissal by operation of law and also act as the refiling of

an identical cause of action so as to allow the action to continue?”

Moore v. Mt. Carmel Health Sys.,

,

,

.

On the same day, the court also accepted the discretionary appeals of Mount Carmel,

COA, and Dr. Humphreys, and consolidated the two cases. See Moore v. Mt. Carmel

Health Sys.,

,

,

.

{¶ 15} As with the memoranda in support of jurisdiction, the merit briefs for both

the certified conflict and discretionary appeals addressed only the issue pertaining to the

savings statute and Civ.R. 3(A). See Case No. 2018-1479: Merit Brief of Appellant

Mount Carmel Health dba Mount Carmel St. Ann’s Hospital, p. 8, and Merit Brief of

Appellants Eric Humphreys, M.D. and Central Ohio Anesthesia, Inc., p. 8-9; Case No.

2018-1233: Merit Brief of Appellant Mount Carmel Health dba Mount Carmel St. Ann’s

Hospital, p. 8, and Merit Brief of Appellants Eric Humphreys, M.D. and Central Ohio

Anesthesia, Inc., p. 8-9.

{¶ 16} After considering the briefs, the Supreme Court of Ohio reversed our

decision as to the only issue on appeal. The court resolved “the certified-conflict

question by stating that the savings statute may be applied only when its terms have been

met. Thus, when, as here, (1) a plaintiff attempts to commence an action but fails to

obtain service within Civ.R. 3(A)'s one-year commencement period and (2) the action has -8-

neither failed other than on the merits during that one-year period (i.e., been dismissed

without prejudice) nor been refiled, (3) the plaintiff cannot use the savings statute to revive

the action outside the limitations period.” Moore, Ohio Slip Opinion No.

,

__ N.E.3d __, at ¶ 36. Accordingly, the court remanded the case and instructed us to

address the third assignment of error, which we had concluded was moot. With this

background in mind, we will consider Moore’s Third Assignment of Error.

II. Status of Dr. Humphreys as an Employee of COA

{¶ 17} Moore's Third Assignment of Error states that:

The Trial Court Erred by Dismissing the Respondeat Superior Claim

Against Central Ohio Anesthesia, Inc. Because Dr. Humphreys Was an

Employee of Central Ohio Anesthesia.

{¶ 18} Under this assignment of error, Moore contends that the trial court erred in

granting summary judgment to COA because Dr. Humphreys was an employee as well

as a shareholder of COA. In this regard, Moore relies on several cases, including State

ex rel. Sawicki v. Lucas Cty. Court of Common Pleas,

, 2010-Ohio-

3299,

, which, according to Moore, held that “an employer practice can

be vicariously liable for the acts of its employee physician, even if the employee physician

cannot be held liable for his alleged negligence.” Merit Brief of Plaintiff-Appellant Michael

Moore, Conservator of the Person and Estate of Justin Moore, p. 26. The basis for this

contention is that “respondeat superior acts by imputing to the employer the acts of the

tortfeasor, not the tortfeasor’s liability.”

{¶ 19} The trial court disagreed with Moore’s position and distinguished Sawicki -9-

because the immunity defense in that case was not based on substantive liability. In

contrast, the court noted that its own decision was based on the “statute of limitations,”

which was a determination of substantive liability. Doc. #350, Decision and Final

Judgment, p. 11-12. The court also focused on Natl. Union Fire Ins. Co. of Pittsburgh,

PA v. Wuerth,

,

,

, in which the

Supreme Court of Ohio held, with respect to legal malpractice, that a law firm cannot be

held liable for an attorney’s actions where no liability is assigned to the attorney. Id. at

p. 11.

{¶ 20} The trial court also rejected Moore’s reliance on Dinges v. St. Luke's Hosp.,

,

(6th Dist.), which allegedly carved out an exception to

Wuerth in situations where a physician is a “traditional employee” rather than a partner or

co-owner. Id. at p. 12. The court first concluded that Dinges had misread Wuerth. Id.

at p. 12-13. In addition, the court found that even if Dinges applied, Dr. Humphreys was

a partner in COA, and COA therefore could not be held liable. Id. at p. 13.

{¶ 21} Our review of the trial court’s decision is de novo. “Under Civ.R. 56,

summary judgment is a procedural device designed to terminate litigation and to avoid a

formal trial where there is nothing left to try. * * * It must be awarded with caution, resolving

any doubts and construing all the evidence against the moving party. * * * It should be

granted only when there is no genuine issue of material fact to be tried, when the moving

party is entitled to judgment as a matter of law, and when it appears that reasonable

minds can only reach an adverse conclusion regarding the nonmoving party's case.”

Maust v. Bank One Columbus, N.A.,

,

(10th

Dist. 1992), citing Harless v. Willis Day Warehousing Co.,

, 375 -10-

N.E.2d 46 (1978). In reviewing trial court decisions granting summary judgment,

appellate courts apply the same standards.

{¶ 22} In challenging the trial court’s decision, Moore points to Dr. Humphrey’s

statement that he was “employed” by COA. Moore also stresses that nothing in the law

prevents shareholders of a corporation from being employees. Further, Moore argues

that Sawicki was decided after Wuerth and did not rely on it. And finally, Moore relies on

Dinges and other cases that have “consistently refused to apply Wuerth to bar claims

against hospitals and medical practice groups for the actions of their employees.”

Appellant’s Brief at p. 28.

{¶ 23} In contrast, COA argues that Wuerth prohibits Moore’s respondeat superior

claims. According to COA, Ohio courts have “consistently held that Wuerth applies to

medical malpractice claims, whether the underlying physician is an ‘employee’ or an

‘owner/shareholder’ of the practice group.” Merit Brief of Defendants-Appellees Eric

Humphreys, MD and Central Anesthesia Associates, Inc., p. 43.

A. The Law of Respondeat Superior

{¶ 24} “Generally, an employer or principal is vicariously liable for the torts of its

employees or agents under the doctrine of respondeat superior * * *.” Clark v. Southview

Hosp. & Family Health Ctr.,

,

(1994), citing Councell

v. Douglas,

, 295-296,

(1955). A fundamental legal

maxim provides that “a person cannot be held liable, other than derivatively, for another's

negligence.” Albain v. Flower Hosp.,

,

(1990), overruled on other grounds by Clark at 435. “[T]he most common form of -11-

derivative or vicarious liability is that imposed by the law of agency, through the doctrine

of respondeat superior.” Id.

B. Wuerth

{¶ 25} As indicated, the trial court relied on Wuerth,

, 2009-

Ohio-3601,

, which held that “[a] law firm does not engage in the practice

of law and therefore cannot directly commit legal malpractice,” and that “[a] law firm may

be vicariously liable for legal malpractice only when one or more of its principals or

associates are liable for legal malpractice.”

at paragraphs one and two of the

syllabus.

{¶ 26} Wuerth involved a legal malpractice suit that an insurer filed in federal

district court against its former attorney and the attorney's law firm. However, the district

court dismissed the attorney from the suit because the statute of limitations for legal

malpractice had expired before the complaint was filed. Id. at ¶ 7-8. The district court

also dismissed the vicarious liability claims against the law firm because no legally

cognizable claims existed against the attorney, and the firm did not directly practice law.

Id. at ¶ 8.

{¶ 27} After the case was appealed, the Sixth Circuit Court of Appeals concluded

that Ohio law on this issue was unsettled. It therefore certified a question to the Supreme

Court of Ohio concerning whether Ohio law permits a legal malpractice claim to “ ‘be

maintained directly against a law firm when all of the relevant principals and employees

have either been dismissed from the lawsuit or were never sued in the first instance.’ ”

Id. at ¶ 9, quoting Wuerth,

,

,

(a -12-

procedural ruling accepted the certified question).

{¶ 28} Wuerth differs from the case before us because it involved a law firm, not a

corporation employing physicians. However, the Supreme Court of Ohio stressed in

Wuerth that it had often relied on similarities between the legal and medical professions

when analyzing malpractice issues. Id. at ¶ 13. As a result, the court looked to

precedent in the medical malpractice arena to decide the case. In particular, the court

commented that “because only individuals practice medicine, only individuals can commit

medical malpractice.” Id. at ¶ 14, citing Browning v. Burt,

,

(1993). (Other citations omitted.) Applying this principle to the legal field,

the court held that “a law firm does not engage in the practice of law and therefore cannot

directly commit legal malpractice.” Id. at ¶ 18.

{¶ 29} Wuerth did not decide whether the judgment dismissing the law firm should

be affirmed, because the case was before it only on a certified question. However, the

court did cite some examples of situations in which liability would not lie. For example,

where a party settles with and releases a servant, no claim exists against the secondarily

liable “master,” because the master’s right to recover against the primarily liable party has

been extinguished. Id. at ¶ 22, citing Losito v. Kruse,

,

(1940).

{¶ 30} After receiving the answer to the certified question, the Sixth Circuit Court

of Appeals affirmed the district court’s dismissal of the case, stating that:

[T]he Ohio Supreme Court's ruling is dispositive of all issues pertaining to

Lane Alton. Having heard oral argument and having carefully reviewed the

record on appeal, the extensive briefing of the parties, and the applicable -13-

law, we find ourselves in complete agreement with the district court's well-

reasoned opinion.

Natl. Union Fire Ins. Co. of Pittsburgh, Pa. v. Wuerth,

(6th

Cir. 2009), affirming

(S.D.Ohio 2007).

C. Post-Wuerth Decisions

{¶ 31} The Tenth District Court of Appeals has not yet applied Wuerth to cases

involving claims against doctors and their corporate employers. However, the Tenth

District did follow Wuerth in a legal malpractice case against a law firm where the firm’s

attorneys had not been sued. Although the statute of limitations had not yet expired

when suit was filed, the individual attorneys were never brought into the case. See

Illinois Natl. Ins. Co. v. Wiles, Boyle, Burkholder & Bringardner Co., L.P.A., 10th Dist.

Franklin No. 10AP-290,

, ¶ 6. In affirming the dismissal of the plaintiff’s

claims, the Tenth District stated that:

The instant matter falls squarely within the confines of Wuerth. The

parties acknowledge that no individual attorneys have been sued for legal

malpractice. Further, the statute of limitations regarding these attorneys

has run. The trial court reached this determination, which Illinois National

has not challenged on appeal. All of Illinois National's arguments

presuppose the idea that attorneys Cook and Close indeed committed

malpractice. As it stands, however, it is only alleged that attorneys Cook

and Close committed malpractice. Because Illinois National neglected to

file suit against these individual attorneys within the statute of limitations, -14-

these allegations will remain just that. The direct liability of attorneys Cook

and Close will never be conclusively established. Absent such direct

liability on the part of attorneys Cook and Close, the Wiles firm cannot be

vicariously liable.

(Emphasis added; citations omitted.) Id. at ¶ 24. See also Tobin v. Steptoe & Johnson,

PLLC, 10th Dist. Franklin No. 17AP-821,

(rejecting claim against

law firm because no attorneys were named); Sapienza v. Materials Eng. & Tech. Support

Servs. Corp., 10th Dist. Franklin No. 15AP-101,

(while attorney

and law firm were both sued, plaintiff never obtained service on attorney and claim against

law firm, therefore, was not viable under Wuerth).

{¶ 32} Several districts in Ohio have applied Wuerth to bar malpractice claims

against a medical or dental group where the allegedly negligent doctor or dentist was

either not included or was not timely sued. See Hignite v. Glick, Layman & Assocs., Inc.,

8th Dist. Cuyahoga No. 95782,

, ¶ 13 (dental malpractice claim against

dental office barred because statute of limitations against dentist had expired); Whitcomb

v. Allcare Dental & Dentures, 8th Dist. Cuyahoga No. 97141,

, ¶ 9-10

(same); Rush v. Univ. of Cincinnati Physicians, Inc.,

,

, ¶ 23

(1st Dist.) (allegedly negligent doctor was not named in suit); Wilson v. Durrani, 1st Dist.

Hamilton No. C-130234,

(release of another party included claims

against doctor; therefore, doctor’s practice could not be vicariously liable); Henry v.

Mandell-Brown, 1st Dist. Hamilton No. C-090752,

, ¶ 14 (claims against

doctor were not filed within the limitations period); Smith v. Wyandot Mem. Hosp., 3d Dist.

Wyandot No. 16-14-07,

, ¶ 17, fn. 4 (same); Brittingham v. Gen. Motors -15-

Corp., 2d Dist. Montgomery No. 24517,

(malpractice claim

against General Motors, which hired company doctor, was not allowed where doctor was

not timely sued).

{¶ 33} In contrast, a number of districts have distinguished Wuerth or found it

inapplicable where claims against hospitals and their employees are concerned. See

Stanley v. Community Hosp., 2d Dist. Clark No. 2010-CA-53,

, ¶ 22;

Cope v. Miami Valley Hosp.,

,

,

(2d Dist.); Taylor v. Belmont Community Hosp., 7th Dist. Belmont No. 09 BE 30,

; Henik v. Robinson Mem. Hosp., 9th Dist. Summit No. 25701,

; Cobbin v. Cleveland Clinic Found.,

,

, ¶ 30 (8th Dist.).

{¶ 34} For example, in Stanley, the plaintiff sued a hospital based on the alleged

negligence of its employee, a nurse, in inserting an IV. However, he did not sue any

individual employees.

. The trial court rendered summary judgment to

the hospital based on Wuerth and the plaintiff then appealed. Id. at ¶ 5-6. On appeal,

the Second District Court of Appeals held that the trial court’s interpretation of Wuerth

was “too expansive” and that Wuerth should only be applied to medical and legal

malpractice cases, not to “medical claims.” Id. at ¶ 20-22. Accord

.

{¶ 35} The court’s holding was based on several factors, including: (1) unlike

nurses, doctors and lawyers are professionals and are not typically employees; (2) by

statute and caselaw, nurses cannot commit malpractice; and (3) traditionally, respondeat

superior claims like the one brought against the hospital did not require suit to also be

brought against the employee. Id. at ¶ 20-22. As a result, the court reversed the -16-

summary judgment granted to the hospital. Id. at ¶ 25.

{¶ 36} Subsequently, in Cope, the Second District Court of Appeals further

reasoned that:

As noted in Stanley, nowhere in Wuerth does the court conclude that

a medical claim brought against a hospital for the alleged negligence of one

of its employees constitutes a malpractice claim. Id. at ¶ 22. Ultimately,

this court's decision to give Wuerth a narrow application is supported by the

public-policy considerations found at the heart of the “respondeat superior”

doctrine, which supports vicarious liability. A hospital employs a wide

range of people who provide a variety of medical service to patients. The

hospital is in exclusive control of hiring criteria, training, and routine

performance evaluation and review. A hospital should be responsible for

the negligence of its employees who perform medical services and act in

the scope of their employment. To allow a hospital to be shielded from the

rule of “respondeat superior” liability due to a court's liberal application of

the distinction carved out by Wuerth would effectively allow the distinction

to swallow the rule.

.

D. The Decision in Sawicki

{¶ 37} Moore argues, despite Wuerth, that the later decision in Sawicki, a medical

malpractice case, controls and applies here. In Sawicki, the plaintiff originally filed

medical claims against a doctor and the doctor’s private employer, but the trial court -17-

dismissed the doctor as a defendant because he was an employee of both a state medical

college and the private employer. Sawicki,

,

,

, at ¶ 3-4. The dismissal was based on the fact that the Court of Claims had

exclusive jurisdiction to decide if the doctor was acting in his capacity as a state employee

and was immune from suit. Id. at ¶ 4. However the trial court refused to also dismiss

the private employer because it could be held liable based on respondeat superior. Id.

{¶ 38} The plaintiff then dismissed the case without prejudice and timely refiled the

common pleas action against the doctor and private employer. Id. at ¶ 5. After the trial

court again dismissed the doctor, the court issued a stay on the respondeat superior issue

pending a decision from the Court of Claims. Id. At that point, the plaintiff filed for a writ

of procedendo to require the trial court to vacate the stay and proceed with the case. Id.

at ¶ 1. After the court of appeals granted the writ, the trial judge appealed to the Supreme

Court of Ohio. Id. at ¶ 7.1 In a brief, the plaintiff admitted that he had not sued the doctor

in the Court of Claims and that the time for doing so had expired. Id. at ¶ 6.

{¶ 39} In addressing the issues, the Supreme Court of Ohio concluded that R.C.

2743.02(F), which governs immunity determinations, did not apply. Specifically, the

court reasoned that the Court of Claims did not need to make an immunity decision

“because neither the state nor its employee is the subject of the suit.” Id. at ¶ 16.

Consequently, even though the doctor was no longer a party, the Supreme Court of Ohio

affirmed the grant of the writ and remanded the case for a decision on the respondeat

1There were two appeals in total to the court of appeals and the Supreme Court of Ohio. However, this is irrelevant and need not be discussed. -18-

superior issue. Id. at ¶ 32.2

{¶ 40} As Moore indicates, the majority opinion in Sawicki did not discuss its prior

decision in Wuerth. Instead, the majority focused on the fact that an individual may have

dual employers; that the Court of Claims would only have to decide the immunity issue if

an action were brought against the doctor as an employee of the state; and that its prior

authority established that employers can be held liable where their employees have

immunity from liability. Id. at ¶ 17-18.

{¶ 41} These points are the context within which the Supreme Court of Ohio made

the comments upon which Moore has relied. Specifically, the Supreme Court of Ohio

said that:

Thus, Associated’s argument that it cannot be held liable if Temesy-Armos

[the doctor] is personally immune fails. An employee's immunity from

liability is no shield to the employer's liability for acts under the doctrine of

respondeat superior. * * * A private employer may still be liable even if the

employee is personally immune, for the doctrine of respondeat superior

operates by imputing to the employer the acts of the tortfeasor, not the

tortfeasor's liability. See, e.g., Davis v. Lambert-St. Louis Internatl. Airport

(Mo. 2006),

(a public employee's immunity “does

not deny the existence of th[e] tort; rather it provides that [the employee] will

not be liable for damages caused by his negligence”); Hooper v. Clements

Food Co. (Okla. 1985),

(“Under respondeat superior, the

negligence or wrongful act, as opposed to the civil liability of the servant, is

2 The case has no further history. -19-

imputed to the master” [emphasis sic]).

(Emphasis added). Id. at ¶ 28.

{¶ 42} According to Moore, we should focus on the above distinction – that the

important consideration is the wrongful or negligent act of the servant, which is imputed

to the master – not the servant’s civil liability for the act.

{¶ 43} In dissenting in Sawicki, Justice Lundberg Stratton remarked on the

majority’s failure to discuss Wuerth, noting that:

Wuerth involved a legal-malpractice claim filed directly against a law firm

when none of its principals or employees were liable or even named as

defendants. We looked to medical-malpractice cases for guidance. We

held that a law firm may be vicariously liable for legal malpractice only when

one or more of its principals or associates are liable for malpractice.

Ironically, we now look to a legal-malpractice case for the same principle,

that a private employer cannot be liable if its employee, a doctor, has been

dismissed. In this case, the majority has reached a different conclusion.”

Id. at ¶ 45 (Lundberg Stratton, J., dissenting).

{¶ 44} The Supreme Court of Ohio has not chosen to revisit this issue since

Sawicki was decided. Some courts have remarked that Sawicki was based on immunity,

which is not “ ‘a determination of liability’ ” and does not provide a shield for employers

under respondeat superior. Friedman v. Castle Aviation, S.D.Ohio No. 2:09-CV-749,

, *7 (May 5, 2011), quoting Sawicki at 1088-1089. Sawicki, in fact,

noted the distinction between claims that are “extinguished by statute of limitations” and

immunity, which does not decide liability. Sawicki at ¶ 29. See also Thomas v. -20-

Reserves Network, 9th Dist. Lorain No. 10CA009886,

.

{¶ 45} One court has found reliance on Sawicki “misplaced” because it did not

overrule Wuerth. Whitcomb, 8th Dist. Cuyahoga No. 97141,

, at ¶ 9. In

contrast, some courts have concluded that “Wuerth is and should be limited in its

application to the particular facts of that case.” Rush,

,

, at

¶ 33 (Stautberg, J., concurring separately), citing Tisdale v. Toledo Hosp.,

,

,

(6th Dist.) and Taylor, 7th Dist. Belmont

No. 09 BE 30,

.

{¶ 46} In Tisdale, a hospital was sued for the negligence of its nursing staff, but no

employees were included in the suit. Tisdale at ¶ 3. The hospital then moved for

dismissal under Wuerth, because the nurses had not been sued and the limitations period

had expired; the trial court agreed. Id. at ¶ 5 and 10-11.

{¶ 47} On appeal, the court considered both respondeat superior and agency by

estoppel. Concerning respondeat superior, the court looked to long-standing authority

indicating that a party may sue either the master or servant, with no requirement that the

employee be joined in the negligence suit. Id. at ¶ 15, citing Losito,

,

. (Other citations omitted.) In contrast, in agency by estoppel cases,

which involve hospitals and independent contractor physicians, both the hospital and

physician must be timely joined in the suit in order for the hospital's imputed liability to lie.

Id. at ¶ 16-18, citing Comer v. Risko,

,

,

, ¶ 29.

{¶ 48} The hospital argued on appeal that Wuerth had inserted a “new rule”

governing all agency relationships in the medical and legal fields, which “extinguished -21-

Losito's rule for pleading a hospital's vicarious liability and now required that its

employees be joined as defendants before the statute runs, even if the complaint is

otherwise timely against the hospital.” Id. at ¶ 23-24. The court rejected that assertion,

however, noting that Wuerth had cited Losito with approval. Id. at ¶ 25.

{¶ 49} Furthermore, the court noted Justice Moyer's concurring opinion, in which

five court members had joined. Id. at ¶ 28, citing Wuerth,

, 2009-

Ohio-3601,

(Moyer, C.J., concurring). Specifically, in the

concurrence, Justice Moyer stated that:

“I stress the narrowness of our holding today. This opinion should

not be understood to inhibit law-firm liability for acts like those alleged by

the petitioner. Rather, a law firm may be held vicariously liable for

malpractice as discussed in the majority opinion. Further, our holding

today does not foreclose the possibility that a law firm may be directly liable

on a cause of action other than malpractice. Yet the limited record and the

nature of answering a certified question do not permit us to entertain such

an inquiry in this case.”

Tisdale,

,

,

, quoting Wuerth

at ¶ 35.

{¶ 50} After noting Justice Moyer’s remarks, the court in Tisdale also stressed that:

In point of fact, the chief justice's cautionary language was probably

superfluous. The nature of Wuerth's relation to his firm suffices to place

this type of agency in a third classification – one that is distinguishable from

both respondeat superior and agency by estoppel. Wuerth was a senior -22-

partner and part-owner of Lane Alton. While attorneys are generally

independent contractors in relation to their clients, Wuerth himself, in

relation to Lane Alton, was neither an independent contractor nor an

employee. See Stanley v. Community Hosp., 2d Dist. No. 2010-CA-53,

, ¶ 20. For use as vicarious-liability precedent, those facts

render Wuerth sui generis. The reach of its holding is thus circumscribed

to legal-malpractice actions – or perhaps even more narrowly, as the chief

justice implied, to legal-malpractice actions involving the same facts.

Tisdale,

,

,

.

{¶ 51} In summary, there is some disagreement among Ohio courts concerning

the breadth of Wuerth and the effect, if any, of Sawicki. However, we should note that

cases rejecting Wuerth’s approach, or narrowing it, involve situations outside the

malpractice setting. See Scott Elliot Smith, LPA v. Travelers Cas. Ins. Co. of Am.,

S.D.Ohio No. 2:12-CV-00065,

, *4 (May 12, 2012), citing Tisdale,

Stanley, 2d Dist. Clark No. 2010 CA 53,

, and Cope,

,

,

. Because the case before us does not involve

claims outside the malpractice area, and because of the strong position the Tenth District

Court of Appeals has previously taken in its interpretation of Wuerth vis-à-vis legal

malpractice actions, we conclude that, as applied here, “[a]bsent such direct liability on

the part of [COA], [the corporation] * * * cannot be vicariously liable” to Moore. Illinois

Natl. Ins. Co., 10th Dist. Franklin No. 10AP-290,

, at ¶ 24. Accordingly,

we agree with the trial court that Moore’s action against COA is barred because he failed

to properly serve Dr. Humphreys within the period required and the statute of limitations -23-

had passed.

{¶ 52} We do note an interesting analysis of similar issues by the Supreme Court

of Delaware in a recent en banc proceeding. See Verrastro v. Bayhospitalists, LLC,

(Del. 2019). Verrastro involved a situation in which two doctors were dismissed

because they had not been sued within the limitations period for malpractice actions, but

their employer, a medical group, was timely sued.

. After considering the

law, the court held that because “the plaintiff sued the employer in a timely manner, settled

principles of law authorize the plaintiff to proceed against that employer. Although the

plaintiff must of course prove her claim against the employer, including that the employee

was negligent, the fact that she failed to sue the employee in a timely manner does not

act to immunize the employer.”

.

{¶ 53} In Verrastro, the court reconsidered its prior opinion in Greco v. Univ. of

Delaware,

(Del. 1993), which had held that “ ‘[s]ince Dr. Talbot (the

employee) is not liable to Greco [the plaintiff] on the merits, because Greco's claims are

barred by the medical malpractice statute of limitations, there is no vicarious liability to be

imputed to Dr. Talbot's employers, the University and the Student Health Care Center.’ ”

(Emphasis sic.)

at 726–27, quoting

. According to the court, this

conclusion about the “merits” in Greco “was inspired by § 217B(2) of the Restatement

(Second) of Agency, Section 217B(2) – a provision that was not carried forward in the

Third Restatement published in 2005 – [which] states that ‘[i]f the action is based solely

upon the tortious conduct of the agent, judgments on the merits for the agent and against

the principal, or judgments of varying amounts for compensatory damages are

erroneous.’ ” (Footnote omitted; emphasis sic.) Id. at 727. -24-

{¶ 54} The court commented that “Greco's reasoning, to the extent that it

substituted the statute-of-limitations dismissal of the physician for an assessment of the

physician's culpability, is in tension with itself. Having announced that ‘the alleged

negligence of the employee, who is a health care provider, must be the focus of any

inquiry into the vicarious liability of the employer of that health care provider under the

doctrine of respondeat superior,’ the Court shifted its gaze from the employee's

negligence/culpability and fixed its gaze on the employee's dismissal on procedural

grounds.” Id.

{¶ 55} After making these remarks, the Supreme Court of Delaware concluded that

“review of traditional respondeat superior principles leads us to conclude that § 217B's

‘on the merits’ language was not intended to encompass procedural dismissals that do

not adjudicate the wrongfulness of the agent's conduct. Instead and in context, we

believe that the phrase ‘judgment on the merits’ in § 217B(2) means judgment on the

merits of the conduct, that is, a judgment finding that the employee is not culpable.”

Verrastro,

.

{¶ 56} The court found this conclusion consistent with respondent superior

because its crux is a finding that an employee has been negligent.

. In

addition, the conclusion was consistent with res judicata treatment of procedural

dismissals, “where ‘[a] judgment against the injured person that bars him from reasserting

his claim against the defendant in the first action extinguishes any claim he has against

the other person responsible for the conduct unless ... [t]he judgment in the first action

was based on a defense that was personal to the defendant in the first action.’ Thus, a

dismissal can be ‘on the merits’ as it concerns the viability of another suit against the -25-

dismissed party without having a collateral effect on a potentially responsible third party.”

(Footnote omitted.)

quoting Restatement of the Law 2d, Judgments, Section 51

(1982).

{¶ 57} Furthermore, the court commented that;

Section 217B(2), in our view, was meant to prevent substantively

inconsistent outcomes and not meant to reach the issue of whether

procedural defenses run from an agent to a principal. For example, § 217

of the same Restatement states that “[i]n an action against a principal based

on the conduct of a servant in the course of employment ... [t]he principal

has no defense because of the fact that the agent had an immunity from

civil liability as to the act.” The only consistent reading of the two sections

of the Restatement is to say that, even if a case against an agent were

subject to an immunity defense * * * that immunity would not accrue to the

benefit of the principal except to the degree that the immunity applies

equally to both principal and agent regardless of any principal-agent

relationship. In this regard, we view a time bar as analogous to a claim of

immunity in that neither indicates the absence of wrongdoing, but only that

the wrongdoer may not be held liable. In the respondeat superior context,

an agent's assertion of immunity does not depend on his lack of culpability,

and the same can be said of any statute-of-limitations defenses that might

be applicable.

Id. at 728.

{¶ 58} Finally, citing Sawicki,

,

, 931 N.E.2d -26-

1082, as well as decisions from other jurisdictions, the Verrastro court stated that

“[a]lthough the case law from our sister states appears to be split, the jurisprudential trend

is tending toward the rule we adopt today.” Id. at 730, fn. 42.

{¶ 59} Again, for the reasons previously stated, we agree with the trial court’s

decision. We present the case from the Supreme Court of Delaware only as an

indication of an alternate point of view.

{¶ 60} Based on the preceding discussion, we agree with the trial court that

Moore’s claim against COA is barred.

E. Application of Dinges

{¶ 61} The trial court also rejected the application of Dinges,

,

. In this regard, the trial court stated that no court other than Dinges had

narrowed Wuerth in the manner that Dinges suggested. Doc. #350, p. 12-13. In

addition, the trial court held that even if Dinges applied, Dr. Humphreys was a part-owner

of COA rather than a traditional employee. Id. at p. 13. Having reviewed the record,

we agree with the trial court.

{¶ 62} In Dinges, the plaintiff filed a wrongful death action against a doctor and his

medical group, based on alleged medical malpractice that caused the decedent’s death.

Dinges at ¶ 1 and 7. After the statute of limitations expired, the plaintiff filed an amended

complaint, substituting the names of two other doctors from the same medical group, but

failed to serve them. Id. at ¶ 11-13. The trial court dismissed the claims against these

doctors, and the plaintiff also dismissed her claims against the other doctor, leaving the

practice as the only defendant. Id. at ¶ 13-14 and 20. Relying on Wuerth, the court -27-

dismissed the action, based on the fact that the medical practice could not commit

malpractice. The court also found that the plaintiff failed to properly raise respondeat

superior in the complaint. Id.

{¶ 63} On appeal, the Sixth District Court of Appeals first found that the plaintiff

had adequately raised respondeat superior in the amended complaint. Id. at ¶ 31. The

court then considered Wuerth and Tisdale, while at the same time noting that when the

trial court considered whether the plaintiff (Dinges) could proceed with a claim against the

practice, “the issue was simply whether Wuerth applied, and the particular distinction

between ‘employee’ and ‘partner/co-owner’ was not seen as critical.” Id. at ¶ 37. The

court then said:

Pursuant to our decision in Tisdale, it is now both genuine and

material to the resolution of the second issue presented in this appeal to

know whether Intermed, which is a medical professional corporation, not a

hospital, is an employer of Orlop and Retholtz in the traditional sense, or

whether the doctors are, in fact, partners and/or co-owners of an entity that

merely performs administrative functions, such as providing a billing

conduit. If the latter is true, as stated in

the relationship of

the doctors to Intermed would fall into the third category identified by the

Ohio Supreme Court in Wuerth.

Id. at ¶ 38.

{¶ 64} After considering the facts, the court of appeals found a genuine issue of

material fact concerning whether the doctors were traditional employees or

partners/owners when they treated the decedent. The case therefore was reversed and -28-

remanded for further proceedings. Id. at ¶ 39-40.

{¶ 65} In arguing that Dr. Humphreys should be considered a “traditional

employee” under Dinges, Moore points to Dr. Humphreys’ admission in his deposition

that he was an employee of COA. See Appellant’s Brief at p. 24, citing Dr. Humphreys’

deposition at 7:3-7. Moore further asserts that even if Dr. Humphreys were a

shareholder in COA, nothing prevented him from being liable under respondeat superior.

Id. at p. 24-25. However, Moore’s arguments in this latter regard rely on Sawicki and

other courts’ limitations on or rejection of Wuerth, and we need not consider them further.

{¶ 66} We note that Dr. Humphreys and COA also admitted in their answers that

Dr. Humphreys was an employee of COA. See Doc. #50 and Doc. #51, p. 2, ¶ 4.

However, that fact alone does not raise a genuine issue of material fact. As noted by the

trial court, both Dr. Humphreys and David Perdzock, COA’s president, filed affidavits

more fully explaining Dr. Humphreys’ status. Doc. #350 at p. 13.

{¶ 67} According to the evidence, Dr. Humphreys had been a shareholder of COA

since 2002. Doc. #163, Affidavit of David Perdzock, ¶ 2-3; Doc. #161, Affidavit of Dr.

Humphreys, ¶ 4. According to Perdzock, Dr. Humphreys, as a shareholder, did not

receive a set salary. Rather, like other shareholders, Dr. Humphreys received a draw

during the year to help with cash flow. Income was then decided at the end of year,

according to company profits, and any profit was then disbursed to the shareholders.

Perdzock Affidavit at ¶ 4.

{¶ 68} No evidence was submitted disputing these facts, and we agree with the

trial court that, for purposes of applying Dinges, Dr. Humphreys was not a traditional

employee, but was instead an owner of COA. As a result, COA would not have been -29-

responsible under respondeat superior for Dr. Humphreys’ actions. Accordingly, the

trial court did not err in rendering summary judgment in COA’s favor with respect to claims

based on COA’s vicarious liability.

{¶ 69} As a final matter, we note that the Second District Court of Appeals issued

an opinion on respondeat superior after briefing in this case occurred. See Clawson v.

Hts. Chiropractic Physicians, LLC, 2d Dist. Montgomery No. 28632,

. In

Clawson, the trial court dismissed an action where service had not been properly

perfected on a treating chiropractor, and his employer was the only remaining defendant.

Id. at ¶ 3-8. On appeal, the Second District affirmed the doctor’s dismissal, but reversed

the summary judgment in the employer’s favor.

{¶ 70} In discussing the employer’s liability, the court distinguished Wuerth,

because “the relationship in Wuerth was that of partner and law firm, not a traditional

employer-employee relationship.” Id. at ¶ 21, citing Wuerth,

, 2009-

Ohio-3601,

. Because the only evidence submitted in Clawson indicated

that the doctor was an employee, the court of appeals held that “a plaintiff may pursue

the undisputed employer of a defendant chiropractor when the individual employee has

been dismissed from the case for lack of service of the complaint on the employee within

one year.” Id. at ¶ 23. The facts in the case before us differ and establish that Dr.

Humphreys was not a traditional employee, but was an owner of COA. As a result,

Clawson is distinguishable and has no bearing here.

{¶ 71} Based on the preceding discussion, the Third Assignment of Error is

overruled. -30-

III. Conclusion

{¶ 72} Having resolved the remaining issues pertaining to Moore’s Third

Assignment of Error, and having found the assignment of error without merit, the

judgment of the trial court is affirmed.

.............

TUCKER, P.J. and DONOVAN, J., concur.

(Hon. Michael L. Tucker, Hon. Mary E. Donovan, and Hon. Jeffrey M. Welbaum, Second District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)

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David I. Shroyer Grier D. Schaffer Theodore M. Munsell Joel E. Sechler Emily M. Vincent Hon. Richard A. Frye