Clawson v. Heights Chiropractic Physicians, L.L.C., 2020-1574

CourtUnited States State Supreme Court of Ohio
Writing for the CourtO'Connor, C.J.
Citation2022 Ohio 4154
PartiesClawson, Appellee, v. Heights Chiropractic Physicians, L.L.C., Appellant, et al.
Docket Number2020-1574
Decision Date23 November 2022


Clawson, Appellee,

Heights Chiropractic Physicians, L.L.C., Appellant, et al.

No. 2020-1574

Supreme Court of Ohio

November 23, 2022

Submitted January 26, 2022

Appeal from the Court of Appeals for Montgomery County, No. 28632, 2020-Ohio-5351.

Staton, Fisher & Conboy, L.L.C., P.J. Conboy II, and James C. Staton, for appellee.

Patsfall, Yeager & Pflum, L.L.C., Charles J. Davis, and Jacob E. Bischoff, for appellant.

Paul W. Flowers Co., L.P.A., Paul W. Flowers, and Louis E. Grube, urging affirmance for amicus curiae Ohio Association of Justice.

Bricker & Eckler, L.L.P., Victoria Flinn McCurdy, Anne Marie Sferra, and Christopher T. Page, urging reversal for amici curiae Ohio Hospital Association, Ohio State Medical Association, Ohio Osteopathic Association, Ohio State Chiropractic Association, Ohio Alliance for Civil Justice, Ohio Radiological Society, Ohio Insurance Institute, and Academy of Medicine of Cleveland & Northern Ohio.


O'Connor, C.J.

{¶ 1} In this appeal, we consider whether a plaintiff may prevail on a claim of chiropractic malpractice against a chiropractor's employer under the doctrine of respondeat superior when the expiration of the applicable statute of limitations has extinguished the chiropractor's direct liability for the alleged malpractice. Based on our holding in Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939, and basic principles of agency law, we answer that question in the negative and reverse the court of appeals' judgment.


{¶ 2} In 2016, appellee, Cynthia Clawson, sued chiropractor Don Bisesi, D.C., and his employer, appellant, Heights Chiropractic Physicians, L.L.C., for medical malpractice in the Montgomery County Court of Common Pleas. Clawson dismissed her initial claims in September 2017,[1] but she refiled her claims against Dr. Bisesi and Heights Chiropractic in August 2018, within the time allowed by Ohio's saving statute, R.C. 2305.19(A).

{¶ 3} Clawson's claims arose from treatment that she received at Heights Chiropractic on November 7, 2014. On that date, Clawson, a regular patient at Heights Chiropractic, received treatment from Dr. Bisesi, who was not her usual chiropractor. Clawson alleges that while she was lying face down on a table, Dr. Bisesi acted negligently when he applied excessive pressure to her back, causing her left breast implant to rupture. Clawson claims that as Dr. Bisesi's employer, Heights Chiropractic is liable for his negligence. She seeks damages in excess of $25,000.

{¶ 4} Both Dr. Bisesi and Heights Chiropractic filed answers to Clawson's refiled complaint, and both admit that Dr. Bisesi was an employee of Heights


Chiropractic at all relevant times. In his answer, Dr. Bisesi asserted the affirmative defense of failure of service of process.

{¶ 5} Clawson first attempted to serve Dr. Bisesi with her refiled complaint by FedEx at an address in West Melbourne, Florida, but that attempt was unsuccessful. The trial court then granted Clawson an extension of time in which to find a current address for Dr. Bisesi and to perfect service on him. But despite the failure of her initial attempt to serve Dr. Bisesi and her purported attempt to obtain a valid address for him, Clawson directed a second attempt at service to the same Florida address. This time, a person identified as "B. Kanapill" signed for the FedEx envelope. Clawson made no further effort to perfect service on Dr. Bisesi.

{¶ 6} In August 2019, Dr. Bisesi filed a motion to dismiss Clawson's refiled complaint or, alternatively, for summary judgment, based on Clawson's failure to perfect service on him within one year of the refiling of her complaint. In an affidavit filed in support of his motion, Dr. Bisesi averred that he had not resided at the Florida address to which Clawson directed service of the complaint since June 2018, which was two months before Clawson refiled her complaint. He further stated that he did not know the person who signed the FedEx signature card and that the signer did not contact him or forward the summons and complaint to him. Dr. Bisesi argued in the motion that because of the failure of service, Clawson had not commenced her refiled action against him under Civ.R. 3(A)[2] and that she therefore had not complied with R.C. 2305.19(A)'s requirement that she "commence [the] new action within one year" of the prior voluntary dismissal. Dr. Bisesi also argued that the one-year statute of limitations applicable to the claims had expired, thus precluding Clawson from filing a valid new complaint against him.


{¶ 7} The trial court granted Dr. Bisesi's motion to dismiss, finding that Clawson did not validly serve Dr. Bisesi with her refiled complaint. Thus, the only claim that was left was Clawson's claim against Heights Chiropractic, which was based solely on its status as Dr. Bisesi's employer.

{¶ 8} Following the trial court's dismissal of Clawson's claims against Dr. Bisesi, Heights Chiropractic moved for summary judgment, arguing that Clawson could not maintain her vicarious-liability claim against it because, as a matter of law, she was precluded from maintaining a malpractice claim directly against Dr. Bisesi. The trial court granted Heights Chiropractic's motion, determining that Heights Chiropractic's vicarious liability was contingent on Dr. Bisesi's direct liability and that "because the primary claims against Dr. Bisesi were extinguished, so too [was] the secondary claim against" Heights Chiropractic.

{¶ 9} Clawson appealed the trial court's judgment to the Second District Court of Appeals, challenging both the trial court's dismissal of her claim against Dr. Bisesi and its entry of summary judgment in favor of Heights Chiropractic. 2020-Ohio-5351, ¶ 1. The Second District affirmed the trial court's dismissal of Clawson's claim against Dr. Bisesi, but it reversed the trial court's summary judgment in favor of Heights Chiropractic. Id. at ¶ 24. The court of appeals held that Clawson could pursue her claim against Heights Chiropractic for the negligence of Dr. Bisesi even though the trial court had properly dismissed her direct claim against him. Id. at ¶ 23.

{¶ 10} This court accepted Heights Chiropractic's discretionary appeal. See 161 Ohio St.3d 1474, 2021-Ohio-717, 164 N.E.3d 477. Heights Chiropractic asks us to hold that a plaintiff may not pursue a vicarious-liability claim under the doctrine of respondeat superior for medical malpractice against a physician's employer after the physician's direct liability has been extinguished. Essentially, it urges us to extend to the facts of this case our holding in Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939.



A. An employer may be vicariously liable for a tort committed by its employee or independent contractor

{¶ 11} " 'It is a fundamental maxim of law that a person cannot be held liable, other than derivatively, for another's negligence.'" Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 17, quoting Albain v. Flower Hosp., 50 Ohio St.3d 251, 254-255, 553 N.E.2d 1038 (1990), overruled on other grounds by Clark v. Southview Hosp. & Family Health Ctr., 68 Ohio St.3d 435, 444-445, 628 N.E.2d 46 (1994). In the employment-law context, "the most common form of derivative or vicarious liability is that imposed by the law of agency, through the doctrine of respondeat superior." Albain at 255.

{¶ 12} We have long recognized that an employer is vicariously liable for the negligence of its employees under the doctrine of respondeat superior. See Clark at 438, citing Councell v. Douglas, 163 Ohio St. 292, 295-296, 126 N.E.2d 597 (1955). More than 80 years ago, this court explained that an employer may be liable for a wrong committed by its employee when the employer delegates a course of action to the employee and the employee then commits a tortious act while acting within the scope of his employment as to the delegated course of action. See Losito v. Kruse, 136 Ohio St. 183, 186, 24 N.E.2d 705 (1940). The employer and the employee are not jointly liable under that circumstance; the "primary liability" rests with the employee who committed the wrong, and the "secondary liability" rests with the employer by reason of its relationship with the employee-wrongdoer. Id. at 187.

{¶ 13} In Losito, this court stated, "[T]he plaintiff has a right of action against either the master or the servant, or against both, in separate actions, as a judgment against one is no bar to an action or judgment against the other until one judgment is satisfied." Id., citing Maple v. Cincinnati, Hamilton & Dayton RR. Co., 40 Ohio St. 313 (1883). An employer who responds in damages for its


employee's wrongful acts, however, has a right of subrogation against the employee. Id. at 188. In recognizing that right, we stated, "[Settlement with and release of the servant will exonerate the master." Id. "Otherwise, the master would be deprived of his right of reimbursement from the servant, if the claim after settlement with the servant could be enforced against the master." Id.

{¶ 14} The doctrine of respondeat superior does not extend an employer's vicarious liability to a tort committed by an independent contractor, because an employer generally lacks the right to control the mode and manner of an independent contractor's performance. Clark, 68 Ohio St.3d at 438, 628 N.E.2d 46, citing Councell at 295-296. Nevertheless, under the theory of agency by estoppel, courts have used the concept of a fictional agency relationship to impose vicarious liability on principals for the acts of their independent contractors. See Comer, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, at 18-19, citing Johnson v. Wagner Provision Co., 141 Ohio St. 584, 49 N.E.2d 925 (1943), paragraph four of the syllabus....

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