Expanding on Wuerth, the Supreme Court of Ohio Holds That an Employer Cannot Be Held Vicariously Liable for an Employee’s Negligence When the Claims Against the Employee Are Extinguished

Grace M. Karam By Grace M. Karam

On November 22, 2022, the Supreme Court of Ohio decided that an employer could not be held vicariously liable for an employee’s alleged negligence when the plaintiff’s claims against the employee were extinguished by the statute of limitations. See Clawson v. Hts. Chiropractic Physicians, L.L.C., Slip Opinion No. 2022-Ohio-4154.

After seeking treatment from a chiropractor employed by Heights Chiropractic Physicians, L.L.C., the plaintiff filed an initial suit, which was voluntarily dismissed, and later refiled her complaint against the chiropractor and Heights Chiropractic. She alleged the chiropractor acted negligently in applying excessive pressure to her back. In his answer, the chiropractor asserted the affirmative defense of failure of service of process and thereafter filed a motion to dismiss the plaintiff’s complaint or, alternatively, for summary judgment. The motion was based on the plaintiff’s failure to perfect service within one year of refiling her complaint on claims subject to a one-year statute of limitations.

The trial court granted the chiropractor’s motion to dismiss. Heights Chiropractic then moved for summary judgment, arguing that the plaintiff could not maintain her vicarious-liability claim against the employer because she was precluded from maintaining a malpractice claim against the employee. The trial court granted the motion for summary judgment in favor of Heights Chiropractic, but the Second District Court of Appeals reversed.

In a 4-to-3 decision, the Supreme Court of Ohio reversed the court of appeals and reinstated the trial court’s entry of summary judgment in favor of Heights Chiropractic. In the majority opinion, the Court revisited its decision in Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 122 Ohio St. 3d 594, 2009-Ohio-3601. In Wuerth, the plaintiff had sued its former attorney and his law firm for legal malpractice. The claims against the attorney were dismissed for being untimely, and because no discernible claims existed against the attorney, the claims involving vicarious liability against the firm were also dismissed. In analyzing Wuerth, the Court cited to several appellate decisions that had extended the Wuerth holding to medical malpractice cases. The Court ultimately held:

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 Wuerthprecludes a vicarious-liability claim for medical malpractice against a physician’s employer when a direct claim against the physician is time-barred.

Clawson at ¶ 29.

The Court emphasized that, in addition to “the similarities between the legal and medical professions with respect to liability for malpractice,” no basis existed that would require it to differentiate between a law firm and any other principal and agent relationship to which Ohio law would apply. Id. at ¶ 32. The Court concluded that because the plaintiff had failed to timely serve the chiropractor with her refiled complaint, and because the statute of limitations had expired, the right of action was extinguished against the chiropractor. In turn, Heights Chiropractic as the employer “may not be held vicariously liable for [the chiropractor’s] alleged malpractice.” Id.