Ohio Supreme Court Issues Terrible Decision, And Leaves Attorneys Guessing About Its Implications

In Clawson v. Heights Chiropractic Physicians, LLC, 2020-Ohio-1577, the Ohio Supreme Court MAY HAVE overturned 80 years of legal precedent to protect hospitals and insurance companies. But it’s not entirely clear. In fact, it’s maddening.

The Ohio Supreme Court is supposed to interpret the law and provide clarity to attorneys and the public. In Clawson, however, the Court did the opposite: it essentially overruled long-standing precedent under Ohio law without actually saying so. This has left attorneys – on both sides of the aisle – guessing as to what the decision means and what ramifications may come from it.

Before Clawson, a medical malpractice victim could sue the physician’s employer – e.g., a hospital or practice group – without having to personally sue the individual physician. The Supreme Court has taken away that option. Now, if a malpractice victim does not personally sue each and every individual physician who may be liable for a medical mistake within the applicable time limit (and jump through a bunch of other hoops), the lawsuit will be thrown out.  

This is not good for physicians. They now must be personally sued in every medical malpractice case. Moreover, they will have to be personally served with the Summons and Complaint. In Clawson, the defendant-physician was dismissed because the plaintiff could not prove the defendant was personally served with the Summons and Complaint (he claimed someone else signed the certified mail receipt). Because the physician was dismissed, the Court held that his employer could not be held liable, either. So, lawyers now must be hyper-vigilant about obtaining personal service on all defendants. This may require lawyers to send film crews and reporters to the physician’s home, office, and hospital to make sure service has been “perfected.” This may be embarrassing – and even humiliating – for physicians, but it’s what the Ohio State Medical Association asked for.

This is maddening. Lawsuits are supposed to be decided on their merits, not on technicalities like whether the physician personally signed a certified mail receipt.

It’s also maddening because the Ohio Supreme Court has created uncertainty in the law, when its job is to provide clarification. Medical malpractice cases already are some of the most challenging causes of action to pursue in Ohio. The Supreme Court has made it even more difficult by inviting confusion about basic principles of agency law that have been in effect for 80 years.

What’s worse, the Clawson decision is not narrowly limited to physicians. In fact, it may not even be limited to “licensed professionals” such as chiropractors, dentists, attorneys, engineers, etc. This decision could conceivably require injury victims of every kind to sue every single person who may have caused their injury, as opposed to suing only the employer. For instance, if a person slips and falls at Wal-Mart, they may no longer be able to file suit against Wal-Mart only, without also suing the janitor, stock-room guy, supervisor, and every other person that may have been involved in the incident. Likewise, if a person is injured in a hospital because of a nursing error (as opposed to a physician committing medical malpractice), the person may no longer be able to sue the hospital only, without also suing every nurse, nurse’s aide, technician, etc.

This would be maddening enough if the Supreme Court had clearly announced this is the new law in Ohio. It’s even more frustrating that the Ohio Supreme Court not only has failed to provide such clarity, it actually has invited confusion and wild speculation.

At The Eisen Law Firm, we have been handling medical negligence cases for decades. We stay on top of the ins and outs of Ohio medical negligence laws – which are constantly changing – and we treat each case with the unique focus it deserves. If you or someone you know might have a case, please contact us as soon as possible, so that we can determine whether you have a valid claim that isn’t too late to be filed. You can reach us at 216-687-0900 or www.malpracticeohio.com for your free case evaluation.