An Akron hospital claims it can’t be sued for negligent supervision of a doctor since the patient didn’t sue the doctor first.

An Akron hospital claims it can’t be sued for negligent supervision of a doctor since the patient didn’t sue the doctor first.

Conflicting interpretations of a single sentence in a 1998 Ohio Supreme Court ruling have brought employer groups and personal-injury victim advocates back to the state’s highest court to determine if a person harmed by an employee must first pursue civil or criminal charges against the employee before being allowed to sue the employer for negligent hiring and supervision.

The Supreme Court’s Strock v. Presnell decision stated that “an underlying requirement in actions for negligent supervision and negligent training is that the employee is individually liable for a tort or guilty of a claimed wrong against a third person, who then seeks recovery against the employer.”

A woman who claimed she was sexually assaulted by a doctor in an Akron hospital emergency room sued the hospital for negligent hiring and supervision, but didn’t lodge a civil lawsuit against the doctor and isn’t pursuing criminal charges against him. At its March 10 oral argument session, the Court will consider the Akron General Medical Center’s assertion that since the doctor wasn’t found liable for a tort or convicted of a crime, the employers can’t be held liable for negligently hiring or supervising him.

The case has drawn statewide interest from organizations representing medical professionals and employers as well as from lawyers representing employees and personal-injury-victim advocates, which submitted amicus curiae briefs.

Dispute Arises From 2012 Incident
In 2012, Malieka Evans claimed that while she was admitted to Akron General Medical Center emergency room, she was given pain medication, and then sexually assaulted by the doctor who examined her. She did not pursue a civil lawsuit against the doctor within the one-year statute of limitations. Two years after the incident, while the matter was still under investigation by the Akron Police Department, she filed a lawsuit against the hospital for failing to supervise, and for negligently retaining, Dr. Amir Shahideh.

The hospital and the employer groups maintain the Strock decision means there must be a judgment against the employee before the employer can be sued. Advocates for employees and injury victims claim a judgment against the offending employee isn’t necessary as long as there are grounds to pursue the employee’s wrongdoing.

Oral Argument Details
The Court will hear oral arguments in Evans v. Akron General Medical Center and two other cases on March 10. The Court will hear four more cases on March 11. Oral arguments begin at 9 a.m. at the Thomas J. Moyer Ohio Judicial Center in Columbus. All arguments are streamed live online at sc.ohio.gov and broadcast live and archived on The Ohio Channel.

In addition to these highlights, the Court’s Office of Public Information released preview articles today about each case, available through the case-name links.

Tuesday, March 10
A Cincinnati man convicted in 2010 for the serial murders of two teenage girls and two women was granted new mitigation and sentencing proceedings after a 2016 U.S. Supreme Court ruling. The new Hamilton County jury also recommended death, and the trial court imposed that sentence. In State v. Kirkland, the man’s automatic appeal to the Ohio Supreme Court, he contests the questioning of jurors in groups, the seating of jurors who were likely to impose the death penalty automatically, statements provided to jurors about the possible disclosure of jury questionnaires, the stun cuff he had to wear in the courtroom, and the admission of certain evidence , among other arguments.

Two businesses that rent vehicles in the island village of Put-In-Bay are contesting the constitutionality of the village’s 1995 vehicle-for-hire tax placed on businesses using any “horse-driven, motorized or manpowered” vehicle to transport passengers. The tax opponents argue that Article XII, Section 5a of the Ohio Constitution allows only the state to tax or license the operation of motor vehicles on public roads, and that Ohio law allows only a $5 “piggyback” tax to be imposed on top of the motor vehicle registration fees the state levies. In Village of Put-In-Bay v. Mathys and Islander Inn, the village argues it’s collecting a legal business tax that has withstood prior court challenges over the past 25 years.

Wednesday, March 11
A Romanian refugee was indicted in 2016 in two Cuyahoga County cold cases from 1996. The offenses included multiple counts of rape, gross sexual imposition, and complicity. The refugee’s attorney checked with an immigration lawyer about the possible deportation consequences. After receiving that information, the man agreed to plead to lesser charges  in the county’s case, but then was detained by federal authorities. Stating that the attorney didn’t definitively find out the deportation consequences, the appeals court concluded the refugee could withdraw his guilty pleas. The prosecutor in State v. Bozso maintains the man didn’t offer enough of the required evidence to support withdrawal of his pleas.

A widowed Toledo doctor wrote a will on a 3x5-inch notecard in 2006, leaving a quarter of his estate to a woman he described as his “meaningful other.” After the doctor’s death in 2015, the woman submitted the notecard to probate court, making a claim against the doctor’s estate. One of the man’s sons in In re Estate of Shaffer argues that because the woman was one of the witnesses to the 2006 notecard will, anything she was entitled to based on that document is void under state law. The woman asserts that a witness also can be a beneficiary of a will if the will falls under a statute that allows for certain other informal documents to be accepted as wills.

In 2016, a Cleveland woman filed a medical malpractice and wrongful death lawsuit against a doctor and hospital system. After about five hours of deliberations on a Friday afternoon, the jury wrote a note to the judge, stating they were deadlocked 4-4. The judge instructed them to keep deliberating.  Later that night the jury told the judge, “We are tired, cranky, and see no change in our opinions….” The bailiff was instructed to inform the jury that they were to come back Monday morning, and about 15 minutes later, two jurors changed positions and issued a 6-2 verdict in favor of the hospital and doctor. In Jones v. The Cleveland Clinic Foundation, the woman claims the judge should have declared a mistrial because the verdict changed only because some jurors didn’t want to return on Monday.

The state’s professional conduct board found that the Columbus attorney in Columbus Bar Association v. Bulson neglected clients in three cases and didn’t cooperate initially in the disciplinary proceedings. The board recommends an 18-month suspension, completely stayed, but the bar association, which investigated the complaints, argues the attorney needs an actual suspension. The bar association contends that he hasn’t demonstrated a sustained period of successful treatment of his mental health conditions and he shouldn’t take on clients for a while. The attorney maintains his doctor’s testimony established he has shown marked improvements over six years.