The Supreme Court of Ohio Dismisses as Improvidently Accepted Case on Whether a Physician-Employee Needs to Be Named in Medical Negligence Case Against Medical Practice-Employer

By Malorie A. Alverson, Esq.

In an interesting turn of events, the Supreme Court of Ohio dismissed Rush v. Univ. of Cincinnati Physicians, Inc.1 as improvidently accepted. The issue in the case was whether a physician-employee needs to be joined as a party along with the medical practice-employer in a medical negligence case in order to establish respondeat superior liability for the employer.

At trial, defendants, including the medical practice-employer moved for a partial directed verdict in favor of the medical practice, on the grounds that it could not be held vicariously liable for any physician not specifically named in the suit. The trial court agreed and granted the directed verdict, finding that the medical practice-employer could not be liable for the conduct of an unnamed physician.

On appeal, the First District Court of Appeals affirmed the trial court’s decision to grant the partial directed verdict on the issue of vicarious liability. In its opinion, the First District substantially relied on Ohio Supreme Court precedent to conclude that an employer cannot be held vicariously liable for the conduct of a physician that is not a properly identified defendant in the case.

The appellate decision was then appealed to the Supreme Court of Ohio, and accepted for review. After oral arguments, and most likely due to the confusing nature of the underlying facts, the court sua sponte dismissed the case as improvidently accepted (Chief Justice O’Connor and Justices Kennedy, O’Neill, Fischer, and Judge Singer, sitting for the recused Justice DeWine, voted for dismissal). The majority vote to dismiss means that the court of appeals judgment stands in the First District.  Notably, Justices French and O’Donnell voted against dismissing the case and would affirm the reasoning of the appellate court, that a medical practice-employer cannot be held vicariously liable for the conduct of an unnamed physician.

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1 Slip Opinion No. 2017-Ohio-2896