Practice Areas

Wuerth Revisited

By Jeffrey W. Van Wagner

In the September 2010 quarterly newsletter, Bret Perry authored an article regarding vicarious liability and the hospital defendant, and provided an excellent survey as to the evolution of agency by estoppel and the doctrine of respondeat superior. At that time the case law was evolving relative to the interpretation of the National Union Fire Ins. Co. v. Wuerth (2009), 122 Ohio St.3d 594. Indeed, in the September 2010 article, a case somewhat contrary to the initial understanding of Wuerth was cited and discussed at length; to wit, Taylor v. Belmont Cmty. Hosp., Seventh Dist., 2010-Ohio-3986.

Since September 2010, several other appellate courts have addressed issues pertaining to the immediate holding in Wuerth and certain practical applications of the issues raised by the Ohio Supreme Court in the Wuerth decision warrant discussion.

In mid-March 2011, the Second District Court of Appeals in Stanley v. Community Hospital, 2011-Ohio-1290, examined a trial court ruling in which summary judgment was granted to a hospital due to the plaintiff's failure to individually name a nurse who attempted to inject medication through an IV port causing IV infiltration and the eventual amputation of the plaintiff's left thumb. The lawsuit was timely commenced against the hospital; however, in its motion for summary judgment the hospital relied upon the holding in Wuerth and asserted that since the nurse at issue was not individually named as a defendant and since the statute of limitations as against this nurse had expired, a claim for respondeat superior liability could not be maintained directly against the nurse's employer. On appeal, plaintiff-appellant argued that the trial court abused its discretion and committed reversible error by dismissing the defendant hospital simply based upon the plaintiff-appellant's choice to sue the employer rather than a specific employee. The appellate court analyzed the specific factual scenario and narrowly applied the Wuerth standard in determining that the trial court's decision must be reversed and the cause remanded to the trial court for proceedings consistent with the appellate court's decision. The court held: "The holding in Wuerth must be given a narrow application. Nowhere in the Wuerth decision does the Supreme Court conclude, expressly or otherwise, that a medical claim brought against a hospital for the alleged negligence of one of its nurse employees constitutes a claim for malpractice under R.C. 2305.11. Further, we have held that a suit against a hospital could proceed where the negligent employee nurse was not named as a defendant. Traditionally, claims such as the one brought by plaintiff against the hospital for the negligence of its employee nurses have been governed by the law of respondeat superior. Simply put, Wuerth does not preclude a suit against Community Hospital for the negligence of its employee nurses despite the fact that the nurse or nurses were not named as defendants in Stanley's complaint. Thus, Wuerth is inapplicable to the instant case, and there being no dispute that the Stanley suit was timely filed against the hospital for the alleged negligence of its employee nurses, respondeat superior law applies and the trial court erred when it sustained the hospital's motion for summary judgment."

Less than one month following the Second District opinion, the Eighth Appellate District, Cuyahoga County, Ohio, employed a contrary analysis and held that Wuerth did preclude the maintenance of a dental malpractice claim against a dental group where the individual dentist was not sued within the time permitted by the applicable statute of limitations. In Hignite v. Glick, Layman & Assoc., Inc., 2011-Ohio-1698, the Eight Appellate District upheld summary judgment disposition of plaintiff/s claim and observed as follows: "[Plaintiff] contends that the trial court erroneously relied on the Ohio Supreme Court's decision in Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, (citations omitted) in granting judgment in favor of the dental practice. In Wuerth, the court addressed the issue of a law firm's liability for legal malpractice. Applying this same reasoning used in the context of medical malpractice suits, the court held that (1) a law firm does not engage in the practice of law and therefore cannot commit legal malpractice; and (2) a law firm is not vicariously liable for legal malpractice unless one of its principles or associates is liable for legal malpractice. Id. at paragraphs 1 and 2 of the syllabus."

Relying on Wuerth, the trial court granted judgment in favor of the dental practice, recognizing that the dental practice "could not possibly be found vicariously liable for malpractice if [plaintiff] did not sue any of the named dentists individually." The trial court further noted that plaintiff could no longer name the individual dentists because the statute of limitations on any action against them had run.

The court applied the Wuerth holding quite literally and held that since plaintiff could not demonstrate that any of the individual dentists were liable for dental malpractice the dental practice itself could not be held liable to the plaintiff.

The evolution of appellate case law interpreting the Wuerth decision will continue and review of individual appellate districts must be considered as one moves forward in preparing and filing dispositive motions in situations where the plaintiff has failed to join the actual care provider as a party defendant.

The Wuerth holding and the eventual decision to strictly or liberally construe that holding will have significant impact on litigation and the involvement of health care providers in lawsuits on a going-forward basis. Quite notably, more and more frequently lawsuits are filed against institutional health care providers, hospitals, long term acute care facilities and nursing homes in which the plaintiff names each individual care provider including physicians, nurses, therapists and every other discipline involved in the rendering of care to a patient. Indeed, in an abundance of caution, lawyers representing potential plaintiffs are issuing 180-day letters to individually identified care providers on a mass scale at times serving as many as 25 individual care providers at a health care facility with 180-day letters.

One of the most practical considerations for institutional care providers, and this is particularly true of long term acute care and nursing home facilities, relates to the signing of certified mail for independent contractors and former employees at a facility creating the impression that proper service of a 180-day letter or a summons and Complaint has been completed. Facilities must vigilantly educate their mailroom and front desk staff to take great care never to sign for a certified mail item from the United States Postal Service unless the individual to whom the envelope is addressed is a current employee of the facility. Mailrooms and front desks at facilities must not sign for certified mail for former employees of the facility or for independent contractors who provide services within the facility. It should be a simple matter for the front desk and the mailroom in these facilities to have a list of current employees and to crosscheck a certified mail letter directed to an individual with the current roster of employees so that inadvertent acceptance of certified mail service for a lawsuit or for a 180-day letter cannot happen.

Further, to the extent 180-day letters are hand-delivered, no front desk personnel or anyone else in the facility should sign as the recipient of such a letter or document unless the individual is truly an employee of the facility. Finally, even regular mail service of a 180-day letter on a non-employee, independent contractor, or former employee must be met with a "return to sender" remark on the envelope to avoid the inadvertent acceptance of either a lawsuit or a letter which may unilaterally extend a statute of limitations against an individual without that person's knowledge.