If a physician cannot be held directly liable for malpractice, then a lawsuit seeking to hold the physician’s employer vicariously liable must be dismissed, the Supreme Court of Ohio ruled today.

In a 4-3 decision, the Supreme Court upheld the dismissal of a lawsuit filed by a patient of a Montgomery County chiropractic firm. The decision reversed a ruling by Second District Court of Appeals, which held that Cynthia Clawson could sue Heights Chiropractic Physicians even though her malpractice claim against the chiropractor who allegedly harmed her had been dismissed as untimely.

Writing for the Court majority, Chief Justice Maureen O’Connor explained the Court was following the precedent of its holding in a 2009 case, which found a law firm could not be held liable for legal malpractice when none of the firm’s lawyers could be held liable for malpractice. In this case, because Clawson’s claim against the chiropractor has been dismissed because she failed to serve him with the lawsuit within the statute of limitations, the case against Heights Chiropractic could not continue.

Patient Sues for Ruptured Implant
Clawson was a regular patient of Heights Chiropractic, but she saw Dr. Don Bisesi for the first time during a 2014 visit. Clawson alleges that while lying face down on a table, Bisesi applied excessive pressure to her back, causing her left breast implant to rupture. In 2016, she sued Bisesi and Heights Chiropractic. She sued Bisesi directly for malpractice and also claimed Heights Chiropractic was vicariously liable for Bisesi’s negligence.

At the time of the lawsuit, Bisesi had left his employment with Heights Chiropractic and was living in Florida. Clawson dismissed her initial complaint and refiled her case in August 2018. She twice attempted to serve Bisesi with the complaint at a Florida address. In 2019, Bisesi asked the Montgomery County Common Pleas Court to dismiss the case, stating he had not lived at that address since June 2018, two months before Clawson refiled her case, and that he had not been served with the complaint  The trial court agreed with Bisesi that Clawson failed to serve him with her complaint in the required amount of time, and that Bisesi could no longer be held directly liable for malpractice.

Firm Seeks to Have Case Dropped
Once Bisesi was dismissed from Clawson’s lawsuit, Heights Chiropractic asked to be dismissed from the case, and the trial court agreed. Clawson appealed, and the Second District held that Heights Chiropractic could be sued even if Bisesi could not.

Heights Chiropractic appealed to the Supreme Court, which agreed to hear the case.

Supreme Court Applies 2009 Decision
In today’s opinion, Chief Justice O’Connor noted the Court’s 2009 National Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth decision is not limited to malpractice claims by legal professionals, but also applies to cases regarding medical professionals. The Court ruled a physician’s employer cannot be held vicariously liable for medical malpractice when a claim against the physician is no longer legally permitted.

Justices Sharon L. Kennedy, Patrick F. Fischer, and R. Patrick DeWine joined the chief justice’s opinion.

Employer Can Be Sued Without Including Employee, Dissent Maintained
In a dissenting opinion, Justice Jennifer Brunner wrote the majority has veered away from more than a century of precedent in Ohio law that allows a person injured by an employee acting within the scope of his or her employment to sue the employer.

Justice Brunner noted Ohio law does not even require the employee to be sued in order to sue the employer for the worker’s negligence. She wrote if Clawson had not pursued a case against Bisesi, and only sued Heights Chiropractic, the case would have remained in court. She stated it is wrong to allow the firm to escape responsibility simply because Clawson could not locate Bisesi.

The dissenting opinion stated that to win a lawsuit against Heights Chiropractic, Clawson would still have to prove Bisesi was negligent. The dissent maintained the majority has wrongly equated winning a judgment against the physician with proving the physician committed malpractice. Only proving malpractice is required, the dissent concluded.

Justices Michael P. Donnelly and Melody Stewart joined the opinion.

2020-1574. Clawson v. Hts. Chiropractic Physicians, LLC, Slip Opinion No. 2022-Ohio-4154.

View oral argument video of this case.

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