Clawson v. Hts. Chiropractic Physicians, L.L.C.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Clawson v. Hts. Chiropractic Physicians, L.L.C., Slip Opinion No. 2022-Ohio-4154.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2022-OHIO-4154

CLAWSON, APPELLEE, v. HEIGHTS CHIROPRACTIC PHYSICIANS, L.L.C.,

APPELLANT, ET AL.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Clawson v. Hts. Chiropractic Physicians, L.L.C., Slip Opinion

No. 2022-Ohio-4154.]

Civil law—Malpractice—Respondeat superior—Because plaintiff had failed to

timely serve chiropractor with her refiled malpractice complaint and

because the statute of limitations on her claim against the chiropractor had

expired, plaintiff’s right of action against the chiropractor was extinguished

by operation of law—Chiropractor’s employer could not be held

vicariously liable for chiropractor’s alleged malpractice—Court of

appeals’ judgment reversed and trial court’s entry of summary judgment in

favor of employer reinstated.

(No. 2020-1574—Submitted January 26, 2022—Decided November 23, 2022.)

APPEAL from the Court of Appeals for Montgomery County,

No. 28632, 2020-Ohio-5351.

SUPREME COURT OF OHIO

__________________

O’CONNOR, C.J.

{¶ 1} In this appeal, we consider 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. Based

on our holding in Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 122 Ohio

St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939, and basic principles of agency law,

we answer that question in the negative and reverse the court of appeals’ judgment.

I. FACTS AND PROCEDURAL BACKGROUND

{¶ 2} In 2016, appellee, Cynthia Clawson, sued chiropractor Don Bisesi,

D.C., and his employer, appellant, Heights Chiropractic Physicians, L.L.C., for

medical malpractice in the Montgomery County Court of Common Pleas. Clawson

dismissed her initial claims in September 2017,1 but she refiled her claims against

Dr. Bisesi and Heights Chiropractic in August 2018, within the time allowed by

Ohio’s saving statute, R.C. 2305.19(A).

{¶ 3} Clawson’s claims arose from treatment that she received at Heights

Chiropractic on November 7, 2014. On that date, Clawson, a regular patient at

Heights Chiropractic, received treatment from Dr. Bisesi, who was not her usual

chiropractor. Clawson alleges that while she was lying face down on a table, Dr.

Bisesi acted negligently when he applied excessive pressure to her back, causing

her left breast implant to rupture. Clawson claims that as Dr. Bisesi’s employer,

Heights Chiropractic is liable for his negligence. She seeks damages in excess of

$25,000.

{¶ 4} Both Dr. Bisesi and Heights Chiropractic filed answers to Clawson’s

refiled complaint, and both admit that Dr. Bisesi was an employee of Heights

1. Clawson’s original complaint also included claims against another chiropractor who worked for

Heights Chiropractic.

2

January Term, 2022

Chiropractic at all relevant times. In his answer, Dr. Bisesi asserted the affirmative

defense of failure of service of process.

{¶ 5} Clawson first attempted to serve Dr. Bisesi with her refiled complaint

by FedEx at an address in West Melbourne, Florida, but that attempt was

unsuccessful. The trial court then granted Clawson an extension of time in which

to find a current address for Dr. Bisesi and to perfect service on him. But despite

the failure of her initial attempt to serve Dr. Bisesi and her purported attempt to

obtain a valid address for him, Clawson directed a second attempt at service to the

same Florida address. This time, a person identified as “B. Kanapill” signed for

the FedEx envelope. Clawson made no further effort to perfect service on Dr.

Bisesi.

{¶ 6} In August 2019, Dr. Bisesi filed a motion to dismiss Clawson’s refiled

complaint or, alternatively, for summary judgment, based on Clawson’s failure to

perfect service on him within one year of the refiling of her complaint. In an

affidavit filed in support of his motion, Dr. Bisesi averred that he had not resided

at the Florida address to which Clawson directed service of the complaint since

June 2018, which was two months before Clawson refiled her complaint. He

further stated that he did not know the person who signed the FedEx signature card

and that the signer did not contact him or forward the summons and complaint to

him. Dr. Bisesi argued in the motion that because of the failure of service, Clawson

had not commenced her refiled action against him under Civ.R. 3(A)2 and that she

therefore had not complied with R.C. 2305.19(A)’s requirement that she

“commence [the] new action within one year” of the prior voluntary dismissal. Dr.

Bisesi also argued that the one-year statute of limitations applicable to the claims

had expired, thus precluding Clawson from filing a valid new complaint against

him.

2. Civ.R. 3(A) states: “A civil action is commenced by filing a complaint with the court, if service

is obtained within one year from such filing upon a named defendant * * *.”

3

SUPREME COURT OF OHIO

{¶ 7} The trial court granted Dr. Bisesi’s motion to dismiss, finding that

Clawson did not validly serve Dr. Bisesi with her refiled complaint. Thus, the only

claim that was left was Clawson’s claim against Heights Chiropractic, which was

based solely on its status as Dr. Bisesi’s employer.

{¶ 8} Following the trial court’s dismissal of Clawson’s claims against Dr.

Bisesi, Heights Chiropractic moved for summary judgment, arguing that Clawson

could not maintain her vicarious-liability claim against it because, as a matter of

law, she was precluded from maintaining a malpractice claim directly against Dr.

Bisesi. The trial court granted Heights Chiropractic’s motion, determining that

Heights Chiropractic’s vicarious liability was contingent on Dr. Bisesi’s direct

liability and that “because the primary claims against Dr. Bisesi were extinguished,

so too [was] the secondary claim against” Heights Chiropractic.

{¶ 9} Clawson appealed the trial court’s judgment to the Second District

Court of Appeals, challenging both the trial court’s dismissal of her claim against

Dr. Bisesi and its entry of summary judgment in favor of Heights Chiropractic.

2020-Ohio-5351, ¶ 1. The Second District affirmed the trial court’s dismissal of

Clawson’s claim against Dr. Bisesi, but it reversed the trial court’s summary

judgment in favor of Heights Chiropractic. Id. at ¶ 24. The court of appeals held

that Clawson could pursue her claim against Heights Chiropractic for the

negligence of Dr. Bisesi even though the trial court had properly dismissed her

direct claim against him. Id. at ¶ 23.

{¶ 10} This court accepted Heights Chiropractic’s discretionary appeal. See

161 Ohio St.3d 1474, 2021-Ohio-717, 164 N.E.3d 477. Heights Chiropractic asks

us to hold that a plaintiff may not pursue a vicarious-liability claim under the

doctrine of respondeat superior for medical malpractice against a physician’s

employer after the physician’s direct liability has been extinguished. Essentially,

it urges us to extend to the facts of this case our holding in Wuerth, 122 Ohio St.3d

594, 2009-Ohio-3601, 913 N.E.2d 939.

4

January Term, 2022

II. LEGAL ANALYSIS

A. An employer may be vicariously liable for a tort committed by its

employee or independent contractor

{¶ 11} “ ‘It is a fundamental maxim of law that a person cannot be held

liable, other than derivatively, for another’s negligence.’ ” Comer v. Risko, 106

Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 17, quoting Albain v. Flower

Hosp., 50 Ohio St.3d 251, 254-255, 553 N.E.2d 1038 (1990), overruled on other

grounds by Clark v. Southview Hosp. & Family Health Ctr., 68 Ohio St.3d 435,

444-445, 628 N.E.2d 46 (1994). In the employment-law context, “the most

common form of derivative or vicarious liability is that imposed by the law of

agency, through the doctrine of respondeat superior.” Albain at 255.

{¶ 12} We have long recognized that an employer is vicariously liable for

the negligence of its employees under the doctrine of respondeat superior. See

Clark at 438, citing Councell v. Douglas, 163 Ohio St. 292, 295-296, 126 N.E.2d

597 (1955). More than 80 years ago, this court explained that an employer may be

liable for a wrong committed by its employee when the employer delegates a course

of action to the employee and the employee then commits a tortious act while acting

within the scope of his employment as to the delegated course of action. See Losito

v. Kruse, 136 Ohio St. 183, 186, 24 N.E.2d 705 (1940). The employer and the

employee are not jointly liable under that circumstance; the “primary liability” rests

with the employee who committed the wrong, and the “secondary liability” rests

with the employer by reason of its relationship with the employee-wrongdoer. Id.

at 187.

{¶ 13} In Losito, this court stated, “[T]he plaintiff has a right of action

against either the master or the servant, or against both, in separate actions, as a

judgment against one is no bar to an action or judgment against the other until one

judgment is satisfied.” Id., citing Maple v. Cincinnati, Hamilton & Dayton RR.

Co., 40 Ohio St. 313 (1883). An employer who responds in damages for its

5

SUPREME COURT OF OHIO

employee’s wrongful acts, however, has a right of subrogation against the

employee. Id. at 188. In recognizing that right, we stated, “[S]ettlement with and

release of the servant will exonerate the master.” Id. “Otherwise, the master would

be deprived of his right of reimbursement from the servant, if the claim after

settlement with the servant could be enforced against the master.” Id.

{¶ 14} The doctrine of respondeat superior does not extend an employer’s

vicarious liability to a tort committed by an independent contractor, because an

employer generally lacks the right to control the mode and manner of an

independent contractor’s performance. Clark, 68 Ohio St.3d at 438, 628 N.E.2d

46, citing Councell at 295-296. Nevertheless, under the theory of agency by

estoppel, courts have used the concept of a fictional agency relationship to impose

vicarious liability on principals for the acts of their independent contractors. See

Comer, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, at ¶ 18-19, citing

Johnson v. Wagner Provision Co., 141 Ohio St. 584, 49 N.E. 2d 925 (1943),

paragraph four of the syllabus. For example, a hospital may be vicariously liable

under the agency-by-estoppel theory for the negligence of an independent-

contractor medical practitioner to whom it has granted staff privileges, if the

hospital “holds itself out to the public as a provider of medical services and in the

absence of notice or knowledge to the contrary, the patient looks to the hospital, as

opposed to the individual practitioner, to provide competent medical care.” Clark

at 444-445.

{¶ 15} In Comer, this court considered the question whether a plaintiff had

a viable claim against a hospital under the theory of agency by estoppel for the

negligence of its independent-contractor physician when the statute of limitations

for any claim against the physician had expired. Id. at ¶ 1. Before answering that

question in the negative, we rejected as contrary to law and as a “radical[]

depart[ure] from basic agency principles” the lower court’s determination that a

claim of agency by estoppel is a direct claim against the hospital, as opposed to a

6

January Term, 2022

derivative or vicarious-liability claim. Id. at ¶ 17-18. Turning to the viability of the

plaintiff’s vicarious-liability claim in that case, we stated that a “claim against a

hospital premised solely upon the negligence of an agent who cannot be found

liable is contrary to basic agency law.” Id. at ¶ 25. Accordingly, we held that “there

can be no viable claim for agency by estoppel if the statute of limitations against

the independent-contractor physician has expired.” Id. at ¶ 2.

{¶ 16} Although Comer involved an agency-by-estoppel claim, we did not

distinguish between vicarious liability based on the doctrine of respondeat superior

and vicarious liability based on the theory of agency by estoppel. But see State ex

rel. Sawicki v. Lucas Cty. Court of Common Pleas, 126 Ohio St.3d 198, 2010-Ohio-

3299, 931 N.E.2d 1082, ¶ 29 (distinguishing Comer, in part, as having been decided

on the agency-by-estoppel theory). Indeed, we cited Losito, 136 Ohio St. 183, 24

N.E.2d 705, which involved a respondeat-superior claim, id. at 186, for the

principles that vicarious liability “flows through the agent by virtue of the agency

relationship to the principal” and that “[i]f there is no liability assigned to the agent,

it logically follows that there can be no liability imposed upon the principal for the

agent’s actions,” Comer at ¶ 20. See also Herron v. Youngstown, 136 Ohio St. 190,

199-200, 24 N.E.2d 708 (1940).

B. Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth

{¶ 17} In support of its argument that it cannot be held vicariously liable for

Dr. Bisesi’s alleged negligence because the expiration of the statute of limitations

precludes a direct claim of malpractice against Dr. Bisesi, Heights Chiropractic

relies on Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939, in which

this court addressed a question of Ohio law certified to it by the United States Court

of Appeals for the Sixth Circuit, id. at ¶ 1. In that case, National Union Fire

Insurance Company of Pittsburgh, PA, had sued in federal court its former attorney,

Richard Wuerth, and Wuerth’s law firm for legal malpractice, alleging that both

Wuerth and the firm were directly liable for malpractice and that the firm was also

7

SUPREME COURT OF OHIO

vicariously liable for Wuerth’s malpractice. Id. at ¶ 5, 7. The federal district court

dismissed the claim against Wuerth as untimely and, because National Union had

no cognizable claims against Wuerth, the court further dismissed the claims

involving vicarious liability against the firm. Id. at ¶ 8. The court granted summary

judgment in favor of the firm, determining that it could not be held directly liable

for malpractice. Id.

{¶ 18} National Union appealed, and the Sixth Circuit certified the

following question of state law to this court: “Under Ohio law, can a legal

malpractice claim 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 ¶ 1. This court extracted from the certified

question two distinct issues: (1) whether a law firm can commit and “be directly

liable for legal malpractice,” and (2) whether a law firm “may be held vicariously

liable for malpractice when none of its principals or employees are liable for

malpractice or have been named as defendants.” (Emphasis sic.) Id. at ¶ 12. We

answered both of those questions in the negative. Id. at syllabus.

{¶ 19} With respect to the first issue in Wuerth—whether a law firm may

be directly liable for legal malpractice—we looked to our medical-malpractice

precedent and, specifically, to our prior determination that “because only

individuals [can] practice medicine, only individuals can commit medical

malpractice.” Id. at ¶ 14, citing Browning v. Burt, 66 Ohio St.3d 544, 556, 613

N.E.2d 993 (1993) (“A hospital does not practice medicine and is incapable of

committing malpractice”). Analogizing based on that precedent, we held that “a

law firm does not engage in the practice of law and therefore cannot directly

commit legal malpractice.” Id. at ¶ 18.

{¶ 20} We then turned to the second issue—“whether a law firm may be

vicariously liable for legal malpractice when no individual attorneys are liable or

have been named.” (Emphasis added.) Wuerth, 122 Ohio St.3d 594, 2009-Ohio-

8

January Term, 2022

3601, 913 N.E.2d 939, at ¶ 19. In answering that question, we cited the same

general principles of agency law discussed above: (1) a person can be held liable

for another’s negligence only derivatively, id. at ¶ 20, citing Albain, 50 Ohio St.3d

at 255, 553 N.E.2d 1038; (2) generally, an employer is vicariously liable for its

employees’ torts under the doctrine of respondeat superior, id., citing Clark, 68

Ohio St.3d at 438, 628 N.E.2d 46; and (3) “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,” id. at ¶ 22.

{¶ 21} As an illustration of the third principle, we cited our statement in

Losito that a settlement with and release of an employee from liability exonerates

the employer. Wuerth at ¶ 22, citing Losito, 136 Ohio St. at 188, 24 N.E.2d 705.

We also cited our statement in Comer that “ ‘[i]f there is no liability assigned to

the agent, it logically follows that there can be no liability imposed upon the

principal for the agent’s actions.’ ” (Emphasis added in Comer.) Wuerth at ¶ 22,

quoting Comer, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, at ¶ 20.

That rule, we emphasized, is not limited to claims based on the doctrine of

respondeat superior but also applies to other types of vicarious liability. Id. at ¶ 23.

Finding “no basis for differentiating between a law firm and any other principal to

whom Ohio law would apply,” id. at ¶ 24, 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 legal malpractice,” id. at ¶ 26.

C. Heights Chiropractic misreads Wuerth

{¶ 22} Before addressing whether Wuerth applies to medical-malpractice

claims, we pause to consider Heights Chiropractic’s characterization of Wuerth as

this court’s having created an “exception to the general rule” of respondeat-superior

liability in malpractice cases by holding that vicarious liability for malpractice does

not survive the extinguishment of a direct claim against an employee who was

9

SUPREME COURT OF OHIO

licensed to provide the allegedly negligent treatment or service. That argument

conflates this court’s analysis of the two distinct issues presented in Wuerth.

{¶ 23} In support of its proposition of law, Heights Chiropractic relies on

our statement in Wuerth that “because only individuals practice medicine, only

individuals can commit medical malpractice,” 122 Ohio St.3d at 597, 2009-Ohio-

3601, 913 N.E.2d 939, and Wuerth’s extension of that rationale to lawyers and law

firms. This court’s discussion in Wuerth of the practice of medicine or law as being

restricted to licensed individuals, however, related exclusively to the issue whether

a law firm could be directly liable for malpractice. See id. at ¶ 13-18. There is no

suggestion that either Wuerth’s status as an attorney or his law firm’s inability to

directly commit malpractice informed this court’s analysis of the vicarious-liability

issue. See id. at ¶ 19-26. To the contrary, with respect to vicarious liability, we

found “no basis for differentiating between a law firm and any other principal to

whom Ohio law would apply.” Id. at ¶ 24. Accordingly, we reject Heights

Chiropractic’s erroneous premise that Wuerth created a professional-practice

exception to the doctrine of respondeat superior. Because Clawson’s only claim

against Heights Chiropractic is based on the doctrine of respondeat superior, the

fact that Heights Chiropractic cannot directly commit malpractice is irrelevant.

{¶ 24} We now turn to the question whether the analysis that we conducted

regarding the vicarious-liability question in Wuerth applies here and bars

Clawson’s respondeat-superior claim against Heights Chiropractic.

D. Ohio’s appellate courts have offered conflicting interpretations of Wuerth

{¶ 25} In the years since this court decided Wuerth, Ohio’s appellate courts

have offered differing interpretations of that decision’s scope and meaning. Some

courts have purported to limit Wuerth to its facts, noting that the attorney in Wuerth

was a partner in and part owner of his law firm rather than a traditional employee.

See, e.g., Dinges v. St. Luke’s Hosp., 2012-Ohio-2422, 971 N.E.2d 1045, ¶ 38 (6th

Dist.) (reversing summary judgment in favor of a medical corporation based on the

10

January Term, 2022

issue whether the individual doctors were traditional employees or partners/part

owners), citing Tisdale v. Toledo Hosp., 197 Ohio App.3d 216, 2012-Ohio-1110,

967 N.E.2d 280, ¶ 29 (6th Dist.) (stating that Wuerth’s employment relationship

with his firm fell into a third category that is “distinguishable from both respondeat

superior and agency by estoppel”); Taylor v. Belmont Community Hosp., 7th Dist.

Belmont No. 09 BE 30, 2010-Ohio-3986, ¶ 34 (“Rather, each partner in a law firm

is a part owner. Thus, this portion of Wuerth is wholly distinguishable from the

traditional employer-employee relationship existing in the case before us”).

{¶ 26} Contrary to those decisions, Wuerth made no distinction with respect

to a law firm’s exposure to vicarious liability as to an attorney who is an employee

of the firm and an attorney who is a partner in the firm. The certified question in

Wuerth itself referred to a situation in which “all of the relevant principals and

employees” of the law firm had been dismissed from the lawsuit or were not sued.

(Emphasis added.) 122 Ohio St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939, at ¶ 1.

Accordingly, we broadly framed the second issue in Wuerth as whether a law firm

could be vicariously liable for malpractice “when no individual attorneys are liable

or have been named.” (Emphasis added.) Id. at ¶ 19. And our equally broad

holding—that “a law firm is not vicariously liable for legal malpractice unless one

of its principals or associates is liable for legal malpractice” (emphasis added), id.

at ¶ 2—made no distinction based on the involvement of an associate/employee or

a partner/part owner. In fact, the only mention of Wuerth’s status as a partner in

the law firm appeared in the recitation of the case’s facts. See id. at ¶ 5. We

therefore reject any suggestion that Wuerth is limited to claims arising out of the

negligence of a partner/part owner, as opposed to a traditional employee.

{¶ 27} In support of their conclusions purporting to limit Wuerth’s

application, the Seventh District Court of Appeals in Taylor at ¶ 35 and the Sixth

District Court of Appeals in Tisdale at ¶ 28 pointed to Chief Justice Moyer’s

concurring opinion in Wuerth, which was joined by four justices, id. at ¶ 39 (Moyer,

11

SUPREME COURT OF OHIO

C.J., concurring). That concurrence did “stress the narrowness” of the Wuerth

holding, id. at ¶ 35 (Moyer, C.J., concurring), but not in the way that the appellate

courts suggested. Chief Justice Moyer stated, “[W]e answer only the very narrow

certified question before us.” Id. at ¶ 27 (Moyer, C.J., concurring). Again, that

question was whether “a legal malpractice claim [can] 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.” (Emphasis added.) Id. at

¶ 1. Chief Justice Moyer agreed with the majority opinion that the answer to that

question was no: “a law firm’s liability for malpractice is vicarious,” not direct. Id.

at ¶ 27 (Moyer, C.J., concurring). And the next seven paragraphs of the concurring

opinion distinguished cases that National Union had cited for its proposition that a

law firm may be directly liable for malpractice. See id. at ¶ 28-34 (Moyer, C.J.,

concurring).

{¶ 28} Chief Justice Moyer’s concurring opinion went on to stress that the

decision in Wuerth “should not be understood to inhibit law-firm liability for acts

like those [that were] alleged” by National Union. Id. at ¶ 35 (Moyer, C.J.,

concurring). And he noted that a law firm may be directly liable in causes of action

other than for malpractice and may be held vicariously liable for malpractice “as

discussed in the majority opinion.” (Emphasis added.) Id. (Moyer, C.J.,

concurring). It should not be overlooked that Chief Justice Moyer also joined the

majority opinion in Wuerth. Id. at ¶ 27, 36 (Moyer, C.J., concurring). If we may

glean anything relevant to this case from his concurring opinion, it is that Chief

Justice Moyer—and the four justices who joined his concurring opinion—agreed

with the majority opinion’s determination regarding a law firm’s vicarious liability,

which included its conclusion that a law firm has no vicarious liability unless at

least one principal or employee of the firm is liable. Id. at ¶ 24.

12

January Term, 2022

E. Wuerth applies to medical- and legal-malpractice claims alike

{¶ 29} Other of Ohio’s appellate courts, and most notably the First District

Court of Appeals, have applied the reasoning in Wuerth to hold that a cause of

action for vicarious liability against a medical employer is precluded when a

malpractice claim against an employee-doctor is time-barred. See, e.g., McQuade

v. Mayfield Clinic, Inc., 2022-Ohio-785, 186 N.E.3d 278, ¶ 20 (1st Dist.) (“The

statute of repose extinguished [the doctor’s] malpractice liability and, as a result,

extinguished the vicarious liability claim against [his employer]”); Rush v. Univ. of

Cincinnati Physicians, Inc., 2016-Ohio-947, 62 N.E.3d 583, ¶ 25 (1st Dist.)

(“Wuerth * * * leaves no room for vicarious liability for medical malpractice where

a doctor cannot be found to be liable for malpractice”); Henry v. Mandell-Brown,

1st Dist. Hamilton No. C-090752, 2010-Ohio-3832, ¶ 14 (holding that a

respondeat-superior claim against a surgery center could not survive when the

claims against the doctor had been dismissed as time-barred). The Eighth and

Tenth District Courts of Appeals have reached the same conclusion. See Hignite v.

Glick, Layman & Assocs., Inc., 8th Dist. Cuyahoga No. 95782, 2011-Ohio-1698,

¶ 13 (affirming judgment in favor of dental practice when statute of limitations

prevented the plaintiff from establishing the liability of any individual dentist);

Moore v. Mt. Carmel Health Sys., 2020-Ohio-6695, 164 N.E.3d 1041, ¶ 51 (10th

Dist.) (respondeat-superior action against medical practice was barred because the

plaintiff had failed to serve the employee-doctor within the statute of limitations”),

appeal accepted, 163 Ohio St.3d 1439, 2021-Ohio-1896, 168 N.E.3d 1195. In light

of this court’s reliance in Wuerth on basic principles of agency law and the widely

acknowledged similarities between legal malpractice and medical malpractice, we

agree with those courts that Wuerth precludes a vicarious-liability claim for medical

malpractice against a physician’s employer when a direct claim against the

physician is time-barred.

13

SUPREME COURT OF OHIO

F. State ex rel. Sawicki v. Lucas Cty. Court of Common Pleas does not

contradict Wuerth

{¶ 30} Shortly after issuing our decision in Wuerth, this court decided

Sawicki, 126 Ohio St.3d 198, 2010-Ohio-3299, 931 N.E.2d 1082, which concerned

a patient’s right to pursue a malpractice claim against a medical corporation based

on the conduct of a physician who had been employed by both the medical

corporation and the state-medical-college hospital. Id. at ¶ 2-3. In that case, the

trial court dismissed the claim against the physician on the ground that he was a

state employee, and it stayed the respondeat-superior claim against the medical

corporation pursuant to R.C. 2743.02(F) pending a determination by the Ohio Court

of Claims as to whether the physician acted within the scope of his state

employment at the time of the alleged malpractice and was thus entitled to personal

immunity. Id. at ¶ 5.

{¶ 31} The matter reached this court through an appeal of the Sixth

District’s issuance of a writ of procedendo to compel the trial judge to vacate the

stay. Id. at ¶ 1. Relevant here, we rejected the medical corporation’s argument that

it could not be held vicariously liable if the physician-employee were personally

immune from liability based on his co-employment with the state. Id. at ¶ 28. We

concluded that the employee’s potential immunity as a state employee was

“immaterial” to his private employer’s vicarious liability, id. at ¶ 21, because “[a]n

employee’s immunity from liability is no shield to the employer’s liability for acts

under the doctrine of respondeat superior,” id. at ¶ 28, citing Adams v. Peoples, 18

Ohio St.3d 140, 142-143, 480 N.E.2d 428 (1985). And although we acknowledged

our holding in Comer, saying that “a hospital cannot be held liable under a

derivative claim of vicarious liability when the physician cannot be held primarily

liable,” id. at ¶ 29, citing Comer, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d

712, at ¶ 20, we distinguished Comer in part because “[t]he claim against the

hospital [in Comer] was extinguished by the statute of limitations, not by

14

January Term, 2022

application of immunity,” id. A determination of immunity, we stated, is not a

determination of liability, id., whereas a dismissal based on the statute of limitations

is a dismissal on the merits, see Moore v. Mt. Carmel Health Sys., 162 Ohio St.3d

106, 2020-Ohio-4113, 164 N.E.3d 376, ¶ 19, citing LaBarbera v. Batsch, 10 Ohio

St.2d 106, 114-115, 227 N.E.2d 55 (1967).

G. Heights Chiropractic may not be held vicariously liable for Dr. Bisesi’s

alleged malpractice

{¶ 32} In Wuerth, we applied basic principles of agency law and held, “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.” 122 Ohio St.3d 594,

2009-Ohio-3601, 913 N.E.2d 939, at paragraph two of the syllabus. Not only did

we emphasize the similarities between the legal and medical professions with

respect to liability for malpractice, but we also stated, “There is no basis for

differentiating between a law firm and any other principal to whom Ohio law would

apply.” Id. at ¶ 24. Today, we hold that the rule stated in Wuerth applies equally

to claims of vicarious liability for medical malpractice.

{¶ 33} 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.

III. CONCLUSION

{¶ 34} We reverse the Second District Court of Appeals’ judgment and

reinstate the trial court’s entry of summary judgment in favor of Heights

Chiropractic.

Judgment reversed.

KENNEDY, FISCHER, and DEWINE, JJ., concur.

15

SUPREME COURT OF OHIO

BRUNNER, J., dissents, with an opinion joined by DONNELLY and

STEWART, JJ.

_________________

BRUNNER, J., dissenting.

Introduction

{¶ 35} Longstanding Ohio vicarious-liability law permits a plaintiff who

was injured by an employer’s employee or principal’s agent acting within the scope

of his or her duties to seek damages against either the employer/principal, the

employee/agent, or both. Though the plaintiff must prove negligence or

wrongdoing by the employee/agent to succeed on a claim against the

employer/principal, the plaintiff need not actually obtain a judgment against the

employee/agent or even file suit against them in order to prevail against the

employer/principal. I disagree with the majority opinion because it follows a line

of precedent that conflates establishing negligence or wrongdoing on the part of the

employee/agent (which is necessary to hold an employer/principal vicariously

liable) with actually obtaining or being able to obtain a judgment against the

employee/agent (which is not necessary to hold the employer/principal vicariously

liable).

{¶ 36} In this case, the Second District Court of Appeals reversed the trial

court’s grant of summary judgment in favor of appellant, Heights Chiropractic

Physicians, L.L.C., holding that appellee, Cynthia Clawson, was not required to file

suit against the chiropractor, Don Bisesi, D.C., who allegedly injured her, to pursue

an action against Dr. Bisesi’s employer, Heights Chiropractic. See 2020-Ohio-

5351, ¶ 20-24. Though this court has sometimes used language that has created

confusing and incongruous judgments in cases of this type, we have never

repudiated the basic principles of respondeat superior creating liability for an

employer when its employee acts tortiously within the scope of his or her

16

January Term, 2022

employment. Accordingly, I would affirm the judgment of the Second District.

Because the majority does not, I respectfully dissent.

Analysis

{¶ 37} As early as 1940, this court has stated that the law of respondeat

superior is:

For the wrong of a servant acting within the scope of his

authority, the plaintiff has a right of action against either the master

or the servant, or against both, in separate actions, as a judgment

against one is no bar to an action or judgment against the other until

one judgment is satisfied. Maple v. Cincinnati, [Hamilton & Dayton

RR. Co., 40 Ohio St. 313 (1883)]. The plaintiff, in any event, can

have but one satisfaction of his claim. But, under such

circumstances, there exists the right of subrogation to the claim of

the plaintiff and reimbursement upon the part of the master as

against the servant, in case the former is obliged to respond in

damages for the wrongful act of the latter. Clark v. Fry, [8 Ohio St.

358 (1858)]; City of Zanesville v. Fannan, [53 Ohio St. 605, 42 N.E.

703 (1895)]; Morris v. Woodburn, [57 Ohio St. 330, 48 N.E. 1097

(1897)]; City of Chicago v. Robbins, [67 U.S. 418, 17 L.Ed. 298

(1862)]; City of Rochester v. Campbell, [123 N.Y. 405, 25 N.E. 937

(1890)].

A settlement with and release of the servant will exonerate

the master. Otherwise, the master would be deprived of his right of

reimbursement from the servant, if the claim after settlement with

the servant could be enforced against the master. Herron v. City of

Youngstown, [136 Ohio St. 190, 24 N.E.2d 708 (1940)]; Bello v. City

17

SUPREME COURT OF OHIO

of Cleveland, [106 Ohio St. 94, 138 N.E. 526 (1922)]; Brown v.

Town of Louisburg, [126 N.C. 701, 36 S.E. 166 (1900)].

Losito v. Kruse, 136 Ohio St. 183, 187-88, 24 N.E.2d 705 (1940). Based on the

right to indemnification on the part of the employer/principal as against its

negligent employee/agent, courts have consistently concluded that once the primary

liability is extinguished by either settlement and release or a judgment on the merits,

the secondary liability is also necessarily extinguished. See, e.g., Comer v. Risko,

106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 20-24, citing with

approval Radcliffe v. Mercy Hosp. Anderson, 1st Dist. Hamilton Nos. C-960424

and 960425, 1997 WL 249436 (May 14, 1997). And when the plaintiff cannot

prevail on the merits by showing negligence (or satisfy the standard for whatever

wrongdoing has been alleged) by the employee/agent, no claim exists against the

employer/principal. See Comer at ¶ 20. None of these basic principles of

secondary liability, however, makes it necessary for the plaintiff to actually obtain

a judgment against the negligent employee/agent or to even sue them. See Losito

at 187-188. Under this precedent, proving the negligence or wrongdoing of an

employee/agent in an action against the employer/principal is enough for liability

to attach against the employer/principal, who may then pursue an indemnification

claim against the employee/agent.

{¶ 38} But starting in 2005, this court’s holdings on the issue began to drift

from this simple and direct legal construct. The responsibility of securing

indemnification began to shift from the employer/principal to the aggrieved

plaintiff, blurring the distinction between establishing the negligence of an

employee/agent and actually obtaining a judgment against the employee/agent.

This court in Comer somewhat incautiously stated, “If there is no liability assigned

to the agent, it logically follows that there can be no liability imposed upon the

principal for the agent’s actions.” Id. at ¶ 20. We cited Losito and Herron for that

18

January Term, 2022

proposition, even though both Losito and Herron clearly express that a plaintiff

need not even sue the employee/agent primary tortfeasor, to say nothing of

“assign[ing]” “liability” to that person, Comer at ¶ 20. See also Losito at 187-188;

Herron at paragraph two of the syllabus.

{¶ 39} Comer detoured from what was the existing law of vicarious liability

in Ohio. In Comer, this court held that when an independent-contractor physician

was not (and could not be) made a party to a negligence lawsuit due to the expiration

of the statute of limitations, the physician’s hospital-principal could not be held

liable for the physician’s negligence. Comer at ¶ 1-2. Justice Pfeifer (joined by

Justice Resnick) persuasively dissented, observing that the law under Losito did not

require a plaintiff to sue the primary-tortfeasor employee/agent. See id. at ¶ 34

(Pfeifer, J., dissenting). Justice Pfeifer stated that protecting an

employer’s/principal’s rights to subrogation and indemnification was not the

plaintiff’s responsibility, especially because the employer/principal may bring

other defendants into the action through Civ.R. 14. Comer at ¶ 34-36 (Pfeifer, J.

dissenting).

{¶ 40} Four years later, this court decided Natl. Union Fire Ins. Co. of

Pittsburgh, PA v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939,

in which we clearly stated that a plaintiff may choose to proceed against only an

employer/principal:

As we explained in Clark v. Southview Hosp. & Family

Health Ctr., 68 Ohio St.3d 435, 438, 628 N.E.2d 46 (1994),

“[g]enerally, an employer or principal is vicariously liable for the

torts of its employees or agents under the doctrine of respondeat

superior.” Id., citing Councell v. Douglas, 163 Ohio St. 292, 295-

296, 126 N.E.2d 597 (1955). Similarly, in Albain v. Flower Hosp.,

50 Ohio St.3d 251, 553 N.E.2d 1038 (1990), we stated that “[i]t is a

19

SUPREME COURT OF OHIO

fundamental maxim of law that a person cannot be held liable, other

than derivatively, for another’s negligence. * * * [T]he most

common form of derivative or vicarious liability is that imposed by

the law of agency, through the doctrine of respondeat superior.” Id.

at 255, 553 N.E.2d 1038, overruled on other grounds by Clark, 68

Ohio St.3d at 444-445, 628 N.E.2d 46. This doctrine of liability

depends on the existence of control by a principal (or master) over

an agent (or servant), terms that we have used interchangeably.

Hanson v. Kynast, 24 Ohio St.3d 171, 173, 494 N.E.2d 1091 (1986).

In Losito v. Kruse, 136 Ohio St. 183, 24 N.E.2d 705 (1940),

we discussed the respective liabilities of a master and servant,

stating, “For the wrong of a servant acting within the scope of his

authority, the plaintiff has a right of action against either the master

or the servant, or against both, in separate actions, as a judgment

against one is no bar to an action or judgment against the other until

one judgment is satisfied.” Id. at 187, 24 N.E.2d 705, citing Maple

v. Cincinnati, Hamilton & Dayton RR. Co., 40 Ohio St. 313 (1883).

See also State ex rel. Flagg v. Bedford, 7 Ohio St.2d 45, 47-48, 218

N.E.2d 601 (1966) (“This court follows the rule that until the injured

party receives full satisfaction, he may sue either the servant, who is

primarily liable, or the master, who is secondarily liable, and a mere

judgment obtained against the former is not a bar to an action or

judgment against the latter”). “The plaintiff, in any event, can have

but one satisfaction of his claim.” Losito, 136 Ohio St. at 187-188,

24 N.E.2d 705.

(Brackets and ellipsis added in Wuerth.) Id. at ¶ 20-21.

20

January Term, 2022

{¶ 41} However, also in Wuerth, we then slipped once more into appearing

to conflate the need for proof of the employee’s/agent’s negligence and the need to

actually sue and obtain a judgment of liability against them:

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. As we held in Losito, for

example, “[a] settlement with and release of the servant will

exonerate the master. Otherwise, the master would be deprived of

his right of reimbursement from the servant, if the claim after

settlement with the servant could be enforced against the master.”

Id. at 188, 24 N.E.2d 705, citing Herron v. Youngstown, 136 Ohio

St. 190, 24 N.E.2d 708 (1940); Bello v. Cleveland, 106 Ohio St. 94,

138 N.E. 526 (1922); Brown v. Louisburg, 126 N.C. 701, 36 S.E.

166 (1900). Similarly, in Comer v. Risko, 106 Ohio St.3d 185, 2005-

Ohio-4559, 833 N.E.2d 712, we recognized that “[t]he liability for

the tortious conduct flows through the agent by virtue of the agency

relationship to the principal. If there is no liability assigned to the

agent, it logically follows that there can be no liability imposed upon

the principal for the agent’s actions.” (Emphasis added.) Id. at

¶ 20, citing Losito and Herron. See also Munson v. United States,

380 F.2d 976, 979 (6th Cir.1967) (applying Ohio law and stating

that “the master’s sole liability depends upon a finding of liability

on the part of the servant, so he cannot be held accountable where

there is no such finding”).

(Brackets added in Wuerth.) Id. at ¶ 22.

21

SUPREME COURT OF OHIO

{¶ 42} In Wuerth, we held that “a law firm does not engage in the practice

of law and therefore cannot commit legal malpractice directly and that a law firm

is not vicariously liable for legal malpractice unless one of its principals or

associates is liable for legal malpractice.” Id. at ¶ 2. Thus, we held that absent any

underlying malpractice by its members or associates, a law firm cannot be liable

for malpractice. But the certified question that this court answered in Wuerth was

whether a law firm could be liable for malpractice when “all of the relevant

principals and employees ha[d] either been dismissed from the lawsuit or were

never sued in the first instance.” (Emphasis added.) Id. at ¶ 1. Apparently, because

of this ambiguity, the last part of the question addressed in Wuerth is read by the

majority today to justify disposing of actions for reasons other than on the merits

when the plaintiff failed to maintain an action against the employee/agent and only

sued the employer/principal. See also Rush v. Univ. of Cincinnati Physicians, Inc.,

2016-Ohio-947, 62 N.E.3d 583, ¶ 22-26 (1st Dist.).

{¶ 43} In this case, the only reason that Dr. Bisesi is not still a defendant in

Clawson’s lawsuit is that Clawson apparently could not figure out where to perfect

service of the complaint on him. There appears to be little dispute that Dr. Bisesi

was an employee of Heights Chiropractic, and Clawson may be able to prove that

Dr. Bisesi was negligent and caused her injury while working within the scope of

his employment for Heights Chiropractic. The sole reason that the trial court

granted summary judgment to Heights Chiropractic was Clawson’s inability to

obtain a judgment against Dr. Bisesi due to her failure to perfect service on him.

But what if Clawson had never sued Dr. Bisesi at all? That would have been

perfectly permissible under our precedent prior to the majority’s decision today,

and there would have been no need for Clawson to even attempt service. If Heights

Chiropractic were concerned about its ability to seek indemnification from Dr.

Bisesi, it could have “cause[d] a summons and complaint to be served upon” him

under Civ.R. 14(A).

22

January Term, 2022

{¶ 44} I would refrain from expanding this court’s decision in Wuerth as

the majority does today. Rather, I would hold, consistent with Chief Justice

Moyer’s concurring opinion in Wuerth (with which a majority of this court—

Justices Pfeifer, Lanzinger, and O’Connor, and Judge Mary DeGenaro, sitting by

assignment—concurred) that Wuerth stands for only the uncontroversial

proposition that a law firm cannot be directly liable for malpractice when its

principals and associates did not commit malpractice, because a law firm, itself,

does not engage in the practice of law. See Wuerth, 122 Ohio St.3d 594, 2009-

Ohio-3601, 913 N.E.2d 939, at ¶ 27, 35 (Moyer, C.J., concurring). I would overrule

Comer, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, and I would clarify

Wuerth so it is clear that with respect to vicarious-liability cases,

“[f]or the wrong of a servant acting within the scope of his authority,

the plaintiff has a right of action against either the master or the

servant, or against both, in separate actions, as a judgment against

one is no bar to an action or judgment against the other until one

judgment is satisfied.”

Id. at ¶ 21, quoting Losito, 136 Ohio St. at 187, 24 N.E.2d 705.

{¶ 45} Our caselaw should be consistent, so as to avoid the illogical

dichotomy that an employee/agent who has caused the plaintiff’s harm need not be

sued for vicarious liability to attach to the employer/principal, but that if the

employee/agent is sued and there is a failure of service, then the procedural bar to

obtaining a judgment against the employee/agent is, in and of itself, fatal to a claim

of vicarious liability against the employer/principal.

Conclusion

{¶ 46} Over a century of our caselaw has established that an injured plaintiff

need not sue the employee/agent that caused the harm in order for the plaintiff to

23

SUPREME COURT OF OHIO

sue and prevail against the employer/principal vicariously. Of course, to prevail

against the employer/principal, the plaintiff must prove the requisite wrongdoing

by the employee/agent. But actually maintaining a lawsuit and obtaining a

judgment against the employee/agent is not the same as proving negligence or

wrongdoing on the part of the employee/agent. Technical or procedural defects in

litigation such as failure of service that prevent a judgment against an

employee/agent do not prevent a showing of negligence or wrongdoing or an action

against the employer/principal.

{¶ 47} Clawson is entitled to show negligence by Dr. Bisesi for the purposes

of establishing the vicarious liability of Dr. Bisesi’s employer, Heights

Chiropractic, without making Dr. Bisesi a party to the action. If Heights

Chiropractic had desired that Dr. Bisesi be a party to the action, for example for

indemnity purposes, Heights Chiropractic could have joined him to the action as a

third-party defendant under Civ.R. 14(A). That Clawson did not obtain service of

the complaint on Dr. Bisesi should not be a trap to bar the vicarious liability of Dr.

Bisesi’s employer.

{¶ 48} I respectfully dissent.

DONNELLY and STEWART, JJ., concur in the foregoing opinion.

_________________

Staton, Fisher & Conboy, L.L.C., P.J. Conboy II, and James C. Staton, for

appellee.

Patsfall, Yeager & Pflum, L.L.C., Charles J. Davis, and Jacob E. Bischoff,

for appellant.

Paul W. Flowers Co., L.P.A., Paul W. Flowers, and Louis E. Grube, urging

affirmance for amicus curiae Ohio Association of Justice.

Bricker & Eckler, L.L.P., Victoria Flinn McCurdy, Anne Marie Sferra, and

Christopher T. Page, urging reversal for amici curiae Ohio Hospital Association,

Ohio State Medical Association, Ohio Osteopathic Association, Ohio State

24

January Term, 2022

Chiropractic Association, Ohio Alliance for Civil Justice, Ohio Radiological

Society, Ohio Insurance Institute, and Academy of Medicine of Cleveland &

Northern Ohio.

_________________

25