Are Lucas County Judges Extending National Union Fire Insurance Company of Pittsburgh v. Wuerth to Medical Malpractice Cases?
By: Meredith L. Mercurio
Date: March 30, 2011
On July 29, 2009, the Ohio Supreme Court decided Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 2009-Ohio-3601. In Wuerth, the Supreme Court held that a law firm could not be held directly liable for legal malpractice because a law firm does not engage in the practice of law and cannot commit legal malpractice. It further held that a law firm could be vicariously liable for legal malpractice only where one or more of its principals or associates are liable for legal malpractice. Because the plaintiff in Wuerth had failed to timely bring suit against the individual attorney who had allegedly committed malpractice, plaintiff could not sustain an action against that attorney’s law firm.
Naturally, this case, which many view as a substantial change to Ohio’s respondeat superior doctrine, has caused both plaintiff and defense attorneys to wonder to what extent Wuerth would be applied in the medical malpractice arena. In its opinion, the Supreme Court discussed at length the similarities between actions against law firms and actions against hospitals and physician groups, indicating that the principles enunciated in Wuerth are applicable in both the legal and medical arenas. It is common practice that in medical malpractice cases involving alleged negligence by a physician, the physician is individually named as a defendant in the action.1 The same is not true, however, involving claims of negligence against other types of health care providers—e.g., nurses, physical therapists, physicians’ assistants, etc. In those types of cases, the hospital or group employing the provider is usually sued, but the individual care provider is usually not. So under Wuerth, must plaintiffs now individually sue nurses, nursing assistants, respiratory therapists, and other non-physicians? Or is it sufficient to merely sue the hospital or group that employs them?
So far, only two Ohio courts of appeals have issued opinions answering these questions. The Seventh District Court of Appeals in Taylor v. Belmont Community Hosp., 2010-Ohio-3986 (7th Dist. 2010) refused to extend the Wuerth decision to a medical negligence action filed against a hospital for its nurses’ conduct, emphasizing that the holding in Wuerth was very narrow. The Second District in Stanley v. Community Hospital, 2011-Ohio-1290 (2d Dist. 2011) also refused to extend Wuerth to a suit against a hospital for nursing negligence. It reasoned that Wuerth is applicable to only “malpractice” claims, and only physicians and attorneys can commit “malpractice” as the term is used in the common law. It held that Wuerth, is, therefore, inapplicable in other contexts.
Four Lucas County cases have now addressed Wuerth’s applicability in the medical malpractice arena.
Judge Ruth Ann Franks in Barnes v. St. Luke’s Hospital, CI08-8249 (January 4, 2010) refused to extend Wuerth to bar an action against a hospital for the negligence of its non-physician employees who had not been named parties to the lawsuit. Judge Franks reasoned that “the Wuerth court expressly bases its holding on the authority of Restatement of Law 3d, The Law Governing Lawyers and the holding was very clearly tailored to the facts before it. . . .” Judge Franks concluded that it would be erroneous to extend Wuerth to all agency relationships.
In Lechman v. St. Anne’s Mercy Hospital, CI09-8083, (March 23, 2010), Judge Linda Jennings also refused to extend Wuerth so as to preclude an action against the hospital where the statute of limitations had expired for naming as a defendant the allegedly negligent nurse employee.
In Tisdale v. The Toledo Hospital, CI03-4247, (December 14, 2010), Judge James D. Jensen held to the contrary and extended Wuerth to bar a claim against a hospital where no hospital employee had been named a defendant. Judge Jensen reasoned that “before Wuerth, Plaintiffs could sue the hospital directly and did not have to name any of the hospital employees in order to hold the hospital liable for the employees’ negligent acts. The Wuerth decision changes that.” Judge Jensen explained that “Just as a law firm cannot be held liable for malpractice when none of its employees are liable for malpractice or have been named as defendants in a legal malpractice action, a hospital cannot be held liable for medical nursing malpractice when the subject nurses have never been named defendants in the malpractice action.” Judge Jensen dismissed the claims against the hospital.
Similarly, in Dinges v. St. Luke’s Hospital, CI08-8715, (February 15, 2011), Judge Mandros dismissed a malpractice action against St. Luke’s Hospital where plaintiffs attempted to bring an “independent, stand-alone” medical malpractice case against the hospital without alleging a respondeat superior claim. Judge Mandros dismissed the claims against the hospital.
Both Tisdale and Dinges have been appealed to the Sixth District Court of Appeals. Neither Stanley nor Taylor has been appealed to the Supreme Court.
1 The First District Court of Appeals in Henry v. Mandell-Brown, M.D. 2010-Ohio-3832 (1st Dist. 2010) held that the Wuerth decision applies in medical malpractice claims against doctors and requires that the physician whose conduct is at issue be timely sued and found to be negligent before the group employing the physician may be held vicariously liable for his or her conduct
