Comer v. Risko, 2004-0284.

Citation106 Ohio St.3d 185,833 N.E.2d 712,2005 Ohio 4559
Decision Date14 September 2005
Docket NumberNo. 2004-0284.,2004-0284.
PartiesCOMER, Admr. of Estate of Clark, Appellee, v. RISKO; Knox Community Hospital, Appellant.
CourtUnited States State Supreme Court of Ohio

Rourke & Blumenthal, L.L.P., and Michael J. Rourke, Columbus, for appellee.

Bricker & Eckler, L.L.P., and Bobbie S. Sprader, Columbus, for appellant.

Bricker & Eckler, L.L.P., Catherine M. Ballard, and Natalie C. Trishman, Columbus, urging reversal for amicus curiae Ohio Hospital Association.

Tucker & Ellis, L.L.P., and Irene C. Keyse-Walker, Cleveland, urging reversal for amici curiae Ohio Association of Civil Trial Attorneys, Center for Health Affairs, and University Hospitals of Cleveland.

LUNDBERG STRATTON, J.

{¶ 1} The narrow issue before us is whether, within the constraints of Clark v. Southview Hosp. & Family Health Ctr. (1994), 68 Ohio St.3d 435, 628 N.E.2d 46, a viable claim exists against a hospital under a theory of agency by estoppel for the negligence of an independent-contractor physician when the physician cannot be made a party because the statute of limitations has expired.

{¶ 2} We hold that agency by estoppel is a derivative claim of vicarious liability whereby the liability of the hospital must flow through the independent-contractor physician. Consequently, there can be no viable claim for agency by estoppel if the statute of limitations against the independent-contractor physician has expired.

{¶ 3} This case arose when plaintiff, Patricia L. Clark, now deceased, filed a complaint against James H. Risko, M.D., and others for medical negligence, including the failure to timely diagnose and treat cancer. (The administrator of Clark's estate, Carmen Comer, is now the appellee before this court.) She asserted a cause of action against Knox Community Hospital ("Knox") based on a theory of agency by estoppel. The plaintiff alleged that she had relied on Knox to provide necessary and proper radiology services, including the interpretation of x-rays by Knox employees and/or agents.

{¶ 4} The plaintiff further alleged that she underwent chest x-rays at Knox on July 1 and September 2, 1998. The x-rays, Knox later established, were interpreted by Mary J. Wall, M.D., and Alan P. Schlesinger, M.D. Their reports did not mention the presence of an enlarged mass on the x-ray films. It was not until the plaintiff underwent a third chest x-ray on January 27, 1999, that doctors detected a mass subsequently diagnosed as a carcinoma.

{¶ 5} The plaintiff did not name Dr. Wall or Dr. Schlesinger as defendants in the complaint filed on July 17, 2000, or the amended complaint filed on December 26, 2001. Knox moved for summary judgment on the basis that no viable claim existed against the hospital because the statute of limitations against Drs. Wall and Schlesinger, the primary tortfeasors, had expired. The trial court granted the motion and dismissed Knox as a defendant.

{¶ 6} The court of appeals reversed the summary judgment as to Knox and remanded the cause for further proceedings. The appellate court held that "a plaintiff may pursue a claim based upon agency by estoppel against a hospital even if it has not named the independent contractor tortfeasor as a party and/or a claim against the tortfeasor is not viable, if the hospital meets the criteria of [Clark v. Southview, 68 Ohio St.3d 435, 628 N.E.2d 46]." 2003-Ohio-7272, ¶ 20.

{¶ 7} The cause is before this court upon the acceptance of a discretionary appeal.

{¶ 8} Because this case was decided upon summary judgment, we review this matter de novo, governed by the standard set forth in Civ.R. 56. Albain v. Flower Hosp. (1990), 50 Ohio St.3d 251, 553 N.E.2d 1038.

{¶ 9} Plaintiff's sole theory of liability against Knox is based upon an agency-by-estoppel relationship between the hospital and Drs. Wall and Schlesinger, who allegedly misinterpreted plaintiff's x-ray films. The doctors, independent contractors who provided their services pursuant to a contract with the hospital, were not named as parties to this action. The statute of limitations expired, and their liability, if any, was extinguished.

{¶ 10} The appellate court held as a matter of law that "the agency by estoppel claim is a direct claim against the hospital and it is irrelevant whether the statute of limitations has run against the independent contractor."1 2003-Ohio-7272, ¶ 13. The appellate court based its decision on this court's expanded definition of agency by estoppel in Clark v. Southview Hosp. & Family Health Ctr., 68 Ohio St.3d 435, 628 N.E.2d 46. Southview held: "A hospital may be held liable under the doctrine of agency by estoppel for the negligence of independent medical practitioners practicing in the hospital when: (1) it holds itself out to the public as a provider of medical services; and (2) in the absence of notice of knowledge to the contrary, the patient looks to the hospital, as opposed to the individual practitioner, to provide competent medical care." Id. at syllabus. The appellate court reasoned that Southview created independent liability for hospitals and implied that courts should make no distinction between independent contractors and employees of hospitals.

{¶ 11} The sole proposition of law advanced by Knox is that a hospital's liability for the actions of an independent-contractor physician is based upon vicarious liability and must flow through the independent physician. Thus, Knox argues, the appellate court's creation of a new and direct cause of action that would impose primary liability upon a hospital violates the agency principles that underlie vicarious liability. According to Knox, if the underlying liability of the independent contractor is extinguished, it follows that the hospital's secondary liability is likewise extinguished.

I. HISTORY OF HOSPITAL LIABILITY

{¶ 12} Historically, in Ohio, a hospital was immune from liability for the negligence of its employees under the doctrine of charitable immunity. Clark v. Southview, 68 Ohio St.3d at 441, 628 N.E.2d 46; Taylor v. Protestant Hosp. Assn. (1911), 85 Ohio St. 90, 96 N.E. 1089. Ohio later abolished the doctrine of charitable immunity and imposed liability upon a hospital for the torts of its employees committed within the scope of employment under the theory of respondeat superior. Avellone v. St. John's Hosp. (1956), 165 Ohio St. 467, 60 O.O. 121, 135 N.E.2d 410; Klema v. St. Elizabeth's Hosp. of Youngstown (1960), 170 Ohio St. 519, 11 O.O.2d 326, 166 N.E.2d 765. The new liability did not include liability for "persons working in a hospital, such as doctors and nurses, under circumstances where the hospital has no authority or right of control over them." Avellone, 165 Ohio St. at 477, 60 O.O. 121, 135 N.E.2d 410.

{¶ 13} As hospitals grew in size and importance, courts looked to agency theories to expand liability to hospitals for the negligence of their independent contractors. In Albain v. Flower Hosp., Ohio adopted a theory of vicarious liability based on the Restatement of the Law 2d, Agency (1958), Section 267. The court held that a hospital may be liable under the doctrine of agency by estoppel for the negligence of a physician to whom it has granted staff privileges. "In order to establish such liability, a plaintiff must show that: (1) the hospital made representations leading the plaintiff to believe that the negligent physician was operating as an agent under the hospital's authority, and (2) the plaintiff was thereby induced to rely upon the ostensible agency relationship." Albain v. Flower Hosp., 50 Ohio St.3d 251, 553 N.E.2d 1038, at paragraph four of the syllabus.

{¶ 14} This approach comported with Ohio precedent in which agency by estoppel had been used in the commercial context. Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584, 26 O.O. 161, 49 N.E.2d 925. This court has previously held that for agency by estoppel to apply, there must be some reliance by a third person upon the appearance of an agency relationship with harm resulting from the induced reliance. Councell v. Douglas (1955), 163 Ohio St. 292, 56 O.O. 262, 126 N.E.2d 597.

{¶ 15} In adopting the test of the Restatement of Agency, Albain rejected the theory of vicarious liability based upon 2 Restatement of the Law 2d, Torts (1965), Section 429, which required the employer to "hold out" the independent contractor as his own employee and required proof that the third person reasonably believed that the services were being performed by the principal or its agent. Albain, 50 Ohio St.3d at 262, 553 N.E.2d 1038. Albain distinguished agency by estoppel from a hospital's direct liability for its owns actions, including the negligent granting and continuing of staff privileges to staff physicians and respondeat superior liability for the torts of actual agents.

{¶ 16} Four years later, in Clark v. Southview, 68 Ohio St.3d at 440, 628 N.E.2d 46, a divided court criticized the Albain test as too narrow, making it "virtually impossible" for a plaintiff to establish reliance. Southview overruled Albain's definition in favor of a new, less stringent test and justified the new test by the demands of public policy in response to the growth of the modern-day full-service hospital, its use of media for advertising, and public expectations about medical care. Southview relaxed the reliance requirement by intermingling the law of agency with tort law found in 2 Restatement of the Law 2d, Torts (1965), Section 429, that had been expressly rejected in Albain. The new test in Southview merely required that the hospital "holds itself out to the public as a provider of medical services" and that the patient looks to the hospital, not a particular doctor, for medical care. Southview, 68 Ohio St.3d at 444-445, 628 N.E.2d 46. The dissenting justices sharply criticized this expanded standard. It is the Southview test that the appellate court interpreted as creating independent...

To continue reading

Request your trial
444 cases
  • Cefaratti v. Aranow
    • United States
    • Connecticut Supreme Court
    • June 14, 2016
    ...be held vicariously liable for the medical malpractice of their agents, employees and apparent agents. See Comer v. Risko, 106 Ohio St. 3d 185, 187, 833 N.E.2d 712 (2005) (hospital may be held liable for torts of employees under doctrine of respondeat superior and for torts of apparent agen......
  • Cefaratti v. Aranow
    • United States
    • Connecticut Supreme Court
    • June 14, 2016
    ...cannot be held vicariously liable for the medical malpractice of their agents, employees and apparent agents. See Comer v. Risko, 106 Ohio St.3d 185, 187, 833 N.E.2d 712 (2005) (hospital may be held liable for torts of employees under doctrine of respondeat superior and for torts of apparen......
  • Kaminski v. Metal & Wire Prod.S Co.
    • United States
    • Ohio Supreme Court
    • March 23, 2010
    ...St.3d 158, 2007-Ohio-5584, 876 N.E.2d 1217, ¶ 29. Our consideration of whether summary judgment is appropriate is de novo. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. {¶ 104} Nothing in this case implicates R.C. 2745.01(C) or (D). Furthermore, construing all mat......
  • Lima v. State
    • United States
    • Ohio Court of Appeals
    • December 3, 2007
    ...judgment de novo. Sharonville v. Am. Employers Ins. Co., 109 Ohio St.3d 186, 2006-Ohio-2180, 846 N.E.2d 833, ¶ 5, citing Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Summary judgment is appropriate when "(1) there is no genuine issue of material fact; (2) the mov......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT