Weiler v. Knox Community Hospital

2021-Ohio-2098

RICHARD WEILER, ET AL. Plaintiffs-Appellants v. KNOX COMMUNITY HOSPITAL, ET AL. Defendant-Appellee

No. 20CA000018

Court of Appeals of Ohio, Fifth District, Knox

June 22, 2021

Appeal from the Knox County Court of Common Pleas, Case No 18PM01-0014

JUDGMENT AFFIRMED

For Plaintiffs-Appellants:

GERALD S. LEESEBERG,

CRAIG S. TUTTLE

Leesburg & Valentine

For Defendant-Appellant:

FREDERICK A. SEWARDS

Poling Law

JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

OPINION

DELANEY, J.

{¶1} Plaintiffs-Appellants Richard and Sherre Weiler appeal the October 23, 2020, judgment entry of the Knox County Court of Common Pleas granting summary judgment in favor of Defendant-Appellee Knox Community Hospital.

FACTS AND PROCEDURAL HISTORY

{¶2} Edward Blackburn, M.D. was the primary care physician for Plaintiff-Appellant Richard Weiler. At the time Weiler was a patient, Dr. Blackburn was an employee, agent, and/or member of Fredericktown Family Practice, Inc., and Defendant-Appellee Knox Community Hospital. In 2011, Dr. Blackburn ordered Weiler a Prostate-Specific Antigen (PSA) Test to measure the amount of PSA in Weiler's blood. The result of that PSA test was normal. After 2011, Dr. Blackburn did not order any further prostate cancer screening for Weiler, but Weiler thought he was receiving the PSA test in his bloodwork ordered by Dr. Blackburn. In 2016, Weiler was diagnosed with prostate cancer. The cancer has progressed to a stage that it is no longer responding to treatment.

{¶3} On May 22, 2017, Plaintiffs-Appellants Richard and Sherre Weiler filed a complaint in the Richland County Court of Common Pleas against Knox Community Hospital; Fredericktown Family Practice, Inc.; Christopher V. Blackburn as the Executor of the Estate of Edward Blackburn, M.D.^[1]; Sarah Jackson, CNP; and Holly Mast, CNP. The complaint brought claims for medical negligence and failure to obtain informed consent for the defendants' alleged failure to conduct prostate cancer screening and timely diagnose Weiler's prostate cancer. The complaint alleged Dr. Blackburn was an employee, agent, and/or member of Fredericktown Family Practice and Knox Community Hospital.

{¶4} Weiler voluntarily dismissed Fredericktown Family Practice, Inc. as a defendant. Defendant Sarah Jackson, CNP filed a motion for summary judgment, which the Richland County Court of Common Pleas granted, and Jackson was dismissed as a party.

{¶5} The defendants also filed a motion to change venue to Knox County. The trial court granted the motion to change venue on January 10, 2018. The complaint was transferred to the Knox County Court of Common Pleas on January 19, 2018.

{¶6} After the transfer of the case to Knox County, Weiler dismissed Holly Mast, CNP as a defendant. Weiler also voluntarily dismissed his claim for informed consent.

{¶7} The only claim pending was medical malpractice against the remaining defendants, Christopher V. Blackburn as the Executor of the Estate of Edward Blackburn, M.D. ("Estate of Dr. Blackburn"), and Defendant-Appellee Knox Community Hospital ("KCH").

{¶8} Weiler entered into settlement negotiations with the Estate of Dr. Blackburn and KCH. Dr. Blackburn was the named insured on an individual insurance policy issued by The Doctors Company. KCH was the named insured on an insurance policy issued by Coverys Insurance Company. Dr. Blackburn and KCH were initially represented by the same trial counsel; as the settlement negotiations progressed, however, The Doctors Company retained separate counsel to represent it and the Estate of Dr. Blackburn during the negotiations.

{¶9} Weiler and the Estate of Dr. Blackburn entered into a Release and Settlement Agreement. On April 24, 2020, Weiler voluntarily dismissed the Estate of Dr. Blackburn as a defendant, with prejudice.

{¶10} On May 12, 2020, KCH filed a motion to compel Weiler to produce the full and complete copy of the Release and Settlement Agreement between Weiler and the Estate of Dr. Blackburn. KCH became aware there was allegedly language in the Release and Settlement Agreement that would preserve the right of Weiler to continue the negligence claim against KCH. Weiler opposed the motion and argued the parties to the Release and Settlement Agreement agreed it was confidential. The trial court ordered Weiler to provide only excerpted provisions of the Release and Settlement Agreement, which were pertinent to Weiler's reservation of rights. Weiler could make any redactions necessary to preserve the confidentiality of the Release and Settlement Agreement.

{¶11} KCH filed a motion for summary judgment on August 31, 2020. It contended that while Weiler brought a claim for medical negligence against both the Estate of Dr. Blackburn and KCH, liability attached to KCH via vicarious liability through the actions of its former employee, Dr. Blackburn. Via the Release and Settlement Agreement, Weiler settled with and released the Estate of Dr. Blackburn from his claim of medical negligence. Weiler voluntarily dismissed the Estate of Dr. Blackburn from the action, with prejudice. KCH argued it was black-letter law that the settlement with and the release of the employee who was primarily liable extinguishes the secondary liability of the employer, KCH. Based on the Release and Settlement Agreement, there was no genuine issue of material fact that KCH was entitled to judgment as a matter of law on the claim for medical negligence. The redacted Release and Settlement Agreement was filed under seal.

{¶12} Weiler filed a response to the motion for summary judgment. The Release and Settlement Agreement defined the term "RELEASEE" to exclude Dr. Blackburn's employer, KCH. Weiler described the settlement with the Estate of Dr. Blackburn as a partial settlement. Weiler argued Ohio law permitted a plaintiff to settle with a primarily liable employee and continue to pursue vicarious liability claims against the secondarily liable employer when the consideration paid by the employee was only a partial satisfaction of the plaintiff's damages.

{¶13} On October 23, 2020, the trial court granted KCH's motion for summary judgment. It is from this judgment that Weiler now appeals.

ASSIGNMENTS OF ERROR

{¶14} Weiler raises one Assignment of Error:

{¶15} "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO APPELLEE, WRONGLY HOLDING THAT AN EMPLOYER HOSPITAL CAN ONLY BE HELD LIABLE WHEN THE EMPLOYEE PHYSICIAN REMAINS SUBJECT TO LIABILITY."

ANALYSIS

{¶16} The issue before this Court is whether the trial court erred when it granted summary judgment in favor of KCH in finding that a settlement with the employee, as the primarily liable party, extinguishes the claim of liability against the employer, the secondarily liable party. Based upon our interpretation of current Ohio case law on this issue, we find the trial court did not err.

Standard of Review

{¶17} We refer to Civ.R. 56(C) in reviewing a motion for summary judgment. The moving party bears the initial responsibility of informing the trial court of the basis for the motion and identifying those portions of the record before the trial court, which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). The nonmoving party then has a reciprocal burden of specificity and cannot rest on the allegations or denials in the pleadings but must set forth "specific facts" by the means listed in Civ.R. 56(C) showing that a "triable issue of fact" exists. Mitseff v Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).

{¶18} Pursuant to the above rule, a trial court may not enter summary judgment if it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).

{¶19} As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and review summary judgments on the same standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987).

Respondeat Superior

{¶20} The Ohio Supreme Court explained in Clark v. Southview Hosp. & Family Health Ctr., 68 Ohio St.3d 435, 438 628 N.E.2d 46 (1994), that "[g]enerally, an employer or principal is vicariously liable for the torts of its employees or agents under the doctrine of respondeat superior." Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939, ¶ 20. The Court adopted a theory of vicarious liability in Albain v. Flower Hosp., 50 Ohio St.3d 251, 553 N.E.2d 1038 (1990). It held that "[i]t was a fundamental maxim of law that a person cannot be held liable, other than derivatively, for another's negligence. * * * [T]he most common form of derivative or vicarious liability is that imposed by the law of agency, through the doctrine of respondeat superior." Wuerth, ¶ 20 quoting Albain at 255, overruled on other grounds by Clark, 68 Ohio St.3d at 444-445. Vicarious liability "depends on the existence of control by a principal (or master) over an agent (or servant), terms that [the Court] have used interchangeably." Wuerth at ¶ 20 citing Hanson v. Kynast, 24 Ohio St.3d 171, 173, 494 N.E.2d 1091 (1986).

{¶21} In the instant case, the employment relationship between of KCH and Dr. Blackburn is not before this Court. The parties agree that Dr. Blackburn was an employee of KCH and acting within the scope of his employment at the time of the alleged medical negligence.

{¶22} The Ohio Supreme Court analyzed the issue of respondeat superior in Natl. Union Fire Ins. Co. of Pittsburgh, PA v....