Ohio Supreme Court Holds Firm on Medical Negligence in Two Late 2022 Opinions

The conservative majority of the Ohio Supreme Court held firm and clarified two important medical negligence defenses in back-to-back decisions issued in the last 10 days.

In Clawson v. Heights Chiropractic Physicians LLC, Slip Opinion No. 2022-Ohio-4154 (November 23, 2022), the court upheld the Comer[1] decision which required that a physician must be timely joined in any medical negligence claim proceeding against an entity for which vicarious liability for the physician’s negligence is sought. The court also clarified that its holding in Wuerth[2] applies equally to all medical malpractice claims, and to all types of agents – whether employees or ostensible agents under Clark[3]. Immediately following, the court issued its opinion in Walling v. Brenya et al; Toledo Hospital, Slip Opinion No. 2022-Ohio-4265 (December 1, 2022), wherein the court confirmed and refused to expand exceptions under Schelling; [4] thus, precluding an independent claim for negligent credentialing against a hospital to be pursued where a physician’s negligence has not previously been established by trial or stipulation – finding it a legal prerequisite to a negligent-credentialing claim.

Practice pointers: While Clawson was largely an affirmation of the manner in which Comer and Wuerth have been argued by the defense and applied by most courts, are there claims where summary judgment could be pursued where the statute of limitations has run for other medical negligence claims, i.e. mid-level providers? Is it advantageous to pursue expansion in a manner which may result in the naming of all providers when suit is brought? Does Clawson effectively reverse appellate decisions declining to apply Wuerth to nursing claims, for example? Will we see filings joining all providers again, with defense stipulations to dismiss with vicarious liability sorted out early in the cases?

Will plaintiffs argue that the headnote in Walling creates a new opportunity to pursue medical negligence and negligent credentialing simultaneously? See the text of the decision which cites to the stay practice acknowledged in Schelling, with a finding of negligence required before proceeding to trial on negligent credentialing.

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Congratulations to James E. Brazeau and Kayla L. Henderson of RCO Law’s professional negligence practice group on securing the favorable Walling decision.

[1] Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712

[2] Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939

[3] Clark v. Southview Hosp. & Family Health Ctr., 68 Ohio St.3d 435, 444-445, 628 N.E.2d 46 (1994)

[4] Schelling v. Humphrey, 123 Ohio St.3d 387, 2009-Ohio-4175, 916 N.E.2d 1029