[Cite as Taylor v. Belmont Community Hosp., 2010-Ohio-3986.]




                            STATE OF OHIO, BELMONT COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


LEE TAYLOR,                                     )
                                                )        CASE NO. 09 BE 30
        PLAINTIFF-APPELLANT,                    )
                                                )
        VS.                                     )       OPINION
                                                )
BELMONT COMMUNITY HOSPITAL,                     )
                                                )
        DEFENDANT-APPELLEE.                     )


CHARACTER OF PROCEEDINGS:                           Civil Appeal from Common Pleas Court,
                                                    Case No. 08CV98.


JUDGMENT:                                           Reversed and Remanded.


APPEARANCES:
For Plaintiff-Appellant:                            Attorney Frank Cuomo
                                                    Attorney Jason Cuomo
                                                    1511 Commerce Street
                                                    Wellsburg, West Virginia 26070


For Defendant-Appellee:                             Attorney Gregory Rankin
                                                    Attorney Ray Pantle
                                                    Two Miranova Place, Suite 500
                                                    Columbus, Ohio 43215


JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                    Dated: August 16, 2010
VUKOVICH, P.J.

        ¶{1}    Plaintiff-appellant Lee Taylor appeals the decision of the Belmont County
Common Pleas Court, which granted summary judgment to defendant-appellee
Belmont Community Hospital. The issue on appeal is whether the medical negligence
action filed against the employer hospital for respondeat superior liability could
proceed even though no suit had been filed against the employee physician or the two
employee nurses and where the statute of limitations had expired against these
allegedly primarily liable parties.
        ¶{2}    The only issue presented to the court below was whether the Supreme
Court’s recent Wuerth decision dealing with law firm liability applied here and whether
it precluded suit against the hospital where its employees were not named as
defendants. The trial court found that Wuerth applied, agreeing with the hospital’s
position. However, we refuse to extend the narrow holding of Wuerth to situations
other than those existing in that case. As such, the trial court’s grant of summary
judgment is reversed, and this case is remanded for further proceedings.
                                   STATEMENT OF THE CASE
        ¶{3}    On January 21, 2001, Linda Taylor arrived at the Belmont Community
Hospital after injuring her knee. She was x-rayed and allegedly released prematurely
by a physician. In transferring her from a wheelchair, two nurses then dropped Mrs.
Taylor.1    Other providers then performed two surgeries on her.                     As a result, she
required long-time nursing care.
        ¶{4}    On December 26, 2001, Mrs. Taylor provided a one-hundred-eighty-day
letter to the hospital announcing intent to sue in order to extend the statute of
limitations. On June 20, 2002, Mrs. Taylor, her husband, and the Ohio Department of
Job and Family Services (who had paid $108,000 toward her care) filed a complaint
against only the hospital due to the alleged negligence of an employee physician and
two employee nurses in diagnosing, treating, and caring for her.

        1
         The parties did not dispute that the case involved the one-year statute of limitations for medical
claims. See R.C. 2305.113(A); R.C. 2305.11(B)(1). A medical claim includes not merely claims against
hospitals or physicians but also include a claim against any employee or agent of the hospital or against
any licensed practical nurse or registered nurse that arises out of the medical diagnosis, care, or
treatment of any person. R.C. 2305.113(E)(3); R.C. 2305.11(D)(3) (former version).
       ¶{5}   Mrs. Taylor died in April of 2004. Thus, Mr. Taylor became a party not
only individually but also as the administrator of his wife’s estate. On February 21,
2007, the complaint was voluntarily dismissed without prejudice. It was then refiled
against the hospital under the savings statute on February 14, 2008.
       ¶{6}   The hospital filed for summary judgment alleging that a hospital cannot
commit medical malpractice, that a hospital is not vicariously liable unless its agents
are primarily liable, and that the agents are not liable here because they were never
sued and because the statute of limitations has run against them. The hospital relied
upon a recent Supreme Court case which held that a law firm does not engage in the
practice of law and therefore cannot commit legal malpractice directly and that a law
firm is not vicariously liable for legal malpractice unless one of its principals or
associates is liable for legal malpractice.      See National Union Fire Ins. Co. of
Pittsburgh, P.A. v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601 (where a negligent
partner had been dismissed from the suit against the law firm because the statute of
limitations had expired prior to the suit’s filing and where the other negligent partners
and employee associates had never been sued).
       ¶{7}   Plaintiffs responded that Wuerth did not create new law and that well-
established respondeat superior law allowed suit to be filed against the employee, the
employer, or both. The plaintiff also stated that the statute of limitations had not run
against the employees here at the time the suit had been filed against the hospital.
       ¶{8}   In an October 23, 2009 opinion and a November 17, 2009 judgment
entry, the trial court granted summary judgment in favor of the hospital. Timely notice
of appeal followed.
                                  BACKGROUND LAW
       ¶{9}   Pursuant to the doctrine of respondeat superior liability, an employer or
principal is vicariously or secondarily liable for the negligence of its employee or agent,
whose liability is primary. Clark v. Southview Hosp. & Fam. Health Ctr. (1994), 68
Ohio St.3d 435, 438. “For the wrong of a servant acting within the scope of his
authority, the plaintiff has a right of action against either the master or the servant, or
against both * * *.” Losito v. Kruse (1940), 136 Ohio St. 183, 187. Still, a principal is
vicariously liable only when an agent could be held directly liable, and thus, settlement
with and release of the servant will exonerate the master. Id. at 188.
       ¶{10} In general, a principal is not vicariously liable for the negligence of an
independent contractor.     Id.   However, the Supreme Court has created a fictional
agency relationship, called agency by estoppel, to impose a type of vicarious liability
on hospitals for the conduct of independent contractor physicians under certain
circumstances. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4459, ¶18-19. See,
also, Clark, 68 Ohio St. 3d at 444-445 (if hospital holds itself out as provider of medical
services and, in the absence of notice or knowledge to the contrary, patient looks to
hospital as opposed to individual practitioner to provide medical care). This agency by
estoppel is said to be a derivative claim of vicarious liability. Id. at ¶28.
       ¶{11} The “narrow” issue in Comer was whether a viable claim existed against
a hospital under an agency by estoppel theory when the statute of limitations expired
against the negligent independent contractor physicians. Id. at ¶1. Specifically, two
physicians were alleged to have negligently read x-rays at the hospital. Plaintiff sued
only the hospital, which was granted summary judgment. The Supreme Court upheld
the grant of summary judgment, concluding that “there can be no viable claim for
agency by estoppel if the statute of limitations against the independent-contractor
physician has expired.” Id. at ¶28.
       ¶{12} Two years after Comer, the Supreme Court reviewed a case where the
plaintiff sued a hospital alleging negligence against various agents of the hospital.
Harris v. Mt. Sinai Med. Ctr., 116 Ohio St.3d 139, 2007-Ohio-5587, ¶3. The hospital
cited Comer’s agency by estoppel law and claimed that the trial court should have
precluded evidence of negligence on the part of the anesthesiologist because the
plaintiff failed to join him as a party. The Harris Court disagreed, stating that failure to
join a party is not the same as having an agent’s liability extinguished by operation of
law as was the case in Comer. Id. at ¶44.
       ¶{13} In addition, the Court found that the doctrine of agency by estoppel could
also apply to the nurses. Id. at ¶45. This statement suggests that the nurses were
independent contractors rather than employees because, as aforementioned, agency
by estoppel refers to a fictional agency relationship for the principal and its
independent contractors and is unnecessary for use in cases concerning employees
for whom there exists actual agency. See Comer, 106 Ohio St.3d 185 at ¶19.
       ¶{14} Most recently, the Supreme Court was presented with the following
certified question of state law from the Sixth Circuit Court of Appeals:
       ¶{15} “Under Ohio law, can a legal malpractice claim be maintained directly
against a law firm when all of the relevant principals and employees have either been
dismissed from the lawsuit or were never sued in the first place?” National Union Fire
Ins. Co. of Pittsburgh, PA v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, ¶1.
       ¶{16} In Wuerth, a client was represented by a partner and an associate until
the partner fell ill at which time others in the law firm assisted. The client thereafter
filed a legal malpractice suit in federal district court against the originally retained
partner.   The client also sued the law firm, alleging that it was directly liable for
malpractice and that it was vicariously liable for the negligence of the defendant
partner and for the wrongful acts of several individuals in the firm who were not named
as defendants. Id. at ¶7. The district court dismissed the defendant partner from the
action because the statute of limitations had expired before the suit was filed,
dismissed the vicarious liability claim against the firm because the client had no
cognizable claim against the defendant partner, determined that the firm could not be
held directly liable for legal malpractice because it does not actually practice law, and
found that there was no vicarious liability for the unnamed employees of the firm
because they were never sued. Id. at ¶8.
       ¶{17} In reviewing the case, the Supreme Court began by pointing out that
there are similarities between medical malpractice and legal malpractice and by finding
the precedent concerning medical malpractice to be instructive. Id. at ¶13. The Court
noted that it has held that because only individuals (not hospitals) practice medicine,
only individuals (not hospitals) can commit malpractice.        Id. at ¶14.   The Court
continued that only individuals (not law firms) may practice law and thus a law firm
cannot directly commit malpractice. Id. at ¶16, 18.
       ¶{18} This left the question of “whether a law firm may be vicariously liable for
legal malpractice when no individual attorneys are liable or have been named.” Id. at
¶19. The Court stated: “Although a party injured by an agent may sue the principal,
the agent, or both, a principal is vicariously liable only when an agent could be held
directly liable.” Id. at ¶22, citing Comer, 106 Ohio St.3d 185 at ¶20 and Losito, 136
Ohio St. at 188. The Court then answered the certified question in the negative,
holding that: “a law firm does not engage in the practice of law and therefore cannot
commit legal malpractice directly and that a law firm is not vicariously liable for legal
malpractice unless one of its principals or associates is liable for legal malpractice.” Id.
at ¶2.
         ¶{19} One of the justices signing the majority also wrote a concurrence, which
garnered a majority as well. The concurrence twice emphasized the narrowness of
the holding. Id. at ¶27, 35 (Moyer, C.J., concurring).
                               ASSIGNMENT OF ERROR
         ¶{20} Appellant’s sole assignment of error provides:
         ¶{21} “THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
REVERSIBLE ERROR WHEN IT GRANTED SUMMARY JUDGMENT IN FAVOR OF
APPELLEE HOSPITAL BECAUSE APPELLANT’S LAWSUIT WAS TIMELY FILED
AGAINST SAID HOSPITAL AND APPELLANT’S CHOICE TO SUE THE EMPLOYER,
RATHER THAN ANY SPECIFIC EMPLOYEE, NURSE, AND/OR DOCTOR, WAS IN
ACCORDANCE WITH WELL-SETTLED AND LONG-STANDING OHIO LAW.”
         ¶{22} Appellant states that it is well-established that a plaintiff alleging
respondeat superior liability can sue either the employer, the employee, or both and
that there is no requirement that the employee be named a party. See Losito v. Kruse
(1940), 136 Ohio St. 183, 187. Appellant argues that Comer merely made a slim
exception for certain cases and did not overrule the principle that the employee need
not be named in order to recover from the principal. Appellant relies on Harris as a
post-Comer endorsement of the continuing viability of suits against only hospitals for
the respondeat superior liability for their nurses.
         ¶{23} Appellant also urges that Wuerth was a narrow holding that does not
apply to all master-servant cases. Appellant also attempts to distinguish Wuerth by
noting that the statute of limitations against the main partner ran prior to the time suit
was filed against the law firm. Appellant then states that the statute of limitations
against the physician and the nurses here had not expired at the time suit was filed
against the hospital.   Appellant alternatively states that if Wuerth extends to this
situation, then the holding should not be applied retroactively.
       ¶{24} The hospital urges that Wuerth should apply here because it utilized
medical malpractice precedent in part.        The hospital states that Wuerth is not
distinguishable merely because the statute of limitations had run against the defendant
partner in that case prior to the filing of the lawsuit against the law firm and proposing
that the statute of limitations did not appear to have run against the law firm’s other
employees until after the suit was filed against the firm. The hospital contends that
Wuerth also stands for the proposition that the failure to name an agent in a lawsuit
against a principal bars the action, and below they suggested that Wuerth overruled
Losito. The hospital concludes that Wuerth has retroactive application because no
party had contractual or vested rights under a prior decision and because the Supreme
Court did not state that it would only apply prospectively. See DiCenzo v. A-Best
Prod. Cos., Inc. 120 Ohio St.3d 149, 2008-Ohio-5327, ¶25, 28.
                                       ANALYSIS
       ¶{25} First, Comer dealt with an independent contractor physician in a hospital
setting and defined agency by estoppel as a subspecialty class of vicarious liability.
Comer, 106 Ohio St.3d 185 at ¶28. As aforementioned, Harris also dealt with agency
by estoppel and thus concerned only independent contractors. Harris, 116 Ohio St.3d
139 at ¶45.    The allegedly negligent actors here were all employees, rather than
independent contractors. Thus, traditional respondeat superior law applies.
       ¶{26} Allowing suits against the principal without asserting a claim against the
employee was typical to the cases pre-dating Comer. See, e.g., Holman v. Grandview
Hosp. Med. Ctr. (1987), 37 Ohio App.3d 153 (suit can proceed against hospital where
negligent employee nurse was not sued); Billings v. Falkenburg (Sept. 5, 1986), 6th
Dist. No. L-86-017 (no requirement that the employee be named as a party to the suit
in order to prove his negligent acts). After Comer, courts have refused to extend the
principles therein to employees as Comer applies only to independent contractor
situations.
       ¶{27} This was the position taken by the Eighth District when it was faced with
an argument that the hospital should be dismissed because the statute of limitations
had run against the nurse. Van Doros v. Marymount Hosp., Inc., 8th Dist. 88106,
2007-Ohio-1140.      That court held that Comer applied only to an independent
contractor physician and did not apply to an employee nurse. Id. at ¶20, 22. See,
also, Holland v. Bob Evans Farms, Inc., 3d Dist. No. 17-07-12, 2008-Ohio-1487, ¶5;
Orebaugh v. Wal-Mart Stores, Inc., 12th Dist. No. CA2006-08-185, 2007-Ohio-4969,
¶17-19 (holding that Comer specifically dealt with an independent contractor physician
and agency by estoppel and does not apply to regular respondeat superior cases).
       ¶{28} The Supreme Court specifically warned that Comer was a “narrow”
holding. Comer, 106 Ohio St.3d 185 at ¶1. As Comer dealt only with agency by
estoppel (a specialized derivative claim of typical vicarious liability) in the hospital
setting, extension of the principles therein to different types of cases is not favored.
See id. at ¶28.     Additionally, Comer did not specify exactly when the statute of
limitations had run against the independent contractor physician. However, the Harris
holding suggests that Comer only applies when the statute of limitations extinguished
the independent contractor’s liability prior to the filing of the suit against the hospital.
See Harris, 116 Ohio St.3d 139 at ¶44 (stating that Comer deals with cases where the
liability was extinguished “by operation of law” [emphasis original]). Since the short
statute of limitations on medical claims would have expired in Harris by the time the
hospital’s arguments were set forth in the trial court, the Court must have been
distinguishing between cases where the statute runs against the independent
contractor prior to filing and cases where it was not expired at that time.
       ¶{29} Regardless, the hospital here conceded to the trial court that the law
prior to Wuerth was not in their favor and that it was only the application of Wuerth that
the trial court was being asked to decide.         See Defendant’s Reply to Plaintiff’s
Response to Defendant’s Motion for Summary Judgment at 6. Thus, we need only
focus on whether Wuerth should be extended to the case before us and/or whether it
would preclude suit against the hospital where the employees were not sued and
where the statute of limitations ran against them after suit had been filed against the
hospital.
       ¶{30} We begin by noting that Wuerth did not overrule Losito as the hospital
suggested below. Rather, Wuerth acknowledged the basic premise that the plaintiff
can choose to sue the master, the servant, or both. Id. at ¶21.
       ¶{31} We next note that the hospital provided this court with a “supplemental
brief” at oral argument which had not been time-stamped.            Therein, the hospital
attempted to raise a new argument. The hospital also noted that a Summit County
trial court has opined that Wuerth only applies where the statute of limitations ran prior
to the filing of the action against the principal. York v. Kokosing Constr. Co., Inc. (Oct.
8, 2009 J.E.), Summit County Court of Common Pleas No. CV-2007-10-7079. See,
also, Tausch v. Riverview Hosp. Inst., 2d Dist. No. 22921, 2010-Ohio-502 (holding, in
an independent contractor case, that the Comer rule only applies if the statute of
limitations against the physician expired prior to filing of the action against the
hospital).
       ¶{32} For the first time, the hospital argues that the statute of limitations ran
against the employee physician and the employee nurses prior to the time suit was
filed against the hospital because only the hospital had been provided with a one-
hundred-eighty-day letter. However, appellant argued below and to this court that
Wuerth was distinguishable because the statute of limitations against the employee
physician and nurses here did not run until after the suit had been timely filed against
the hospital. In its responses here and below, the hospital did not make the argument
that the statute of limitations regarding the primarily liable employees had already
expired at the time of the lawsuit against the hospital.        The hospital essentially
admitted that the statute of limitations only ran against the employees after the suit
had been timely filed against the hospital.
       ¶{33} Thus, this argument is waived. Specifically, the hospital is prohibited
from making a new argument such as this to the appellate court that was not made to
the trial court. See, e.g., Litva v. Richmond, 172 Ohio App.3d 349, 2007-Ohio-3499,
¶18 (parties are not entitled to make new summary judgment arguments to appellate
court). Furthermore, the hospital cannot submit off-the-record evidentiary material to
this court that was never presented to or otherwise viewed by the trial court. State v.
Ishmail (1978), 54 Ohio St. 2d 402, 405-406. Thus, even assuming this new argument
was factually and legally true and even assuming Wuerth should be applied pursuant
to the trial court’s belief in York, the hospital has not preserved this argument.
       ¶{34} In any event, Wuerth is inapplicable here. As to the partner in Wuerth,
his relationship with the firm was not that of employer-employee. Rather, each partner
in a law firm is a part owner. Thus, this portion of Wuerth is wholly distinguishable
from the traditional employer-employee relationship existing in the case before us.
       ¶{35} As to the other portions of Wuerth that seemingly apply to the acts of
associates, Chief Justice Moyer twice stressed in his concurrence, that Wuerth was a
narrow holding. Wuerth, 122 Ohio St.3d 594 at ¶27, 35. Most notably, a majority of
the justices signed this concurrence.        Thus, it was actually part of the majority
decision. Consequently, we refuse to extend a Supreme Court case regarding law
firm liability for the acts of partners and associates to the arena of hospital liability for
the acts of its employees.
       ¶{36} For the foregoing reasons, the trial court’s grant of summary judgment to
the hospital is hereby reversed, and this case is remanded for further proceedings
according to law and consistent with this Court’s opinion.

Waite, J., concurs in judgment only.
DeGenaro, J., concurs in judgment only; see concurring in judgment only opinion.




DeGENARO, J., concurring in judgment only
       ¶{37} Appellants’ complaint against the hospital is based upon allegedly
tortious conduct of employees of the hospital. Given that relationship, the doctrine of
respondeat superior is the controlling theory of recovery against the hospital. Contrary
to the assertions of the parties, neither Comer and its progeny nor Wuerth apply to the
resolution of this appeal.
       ¶{38} In any given case, the determination of which of the alleged tortfeasors
to pursue, how to frame the complaint, and which statue of limitations controls is fact
based, and the crucial fact is the relationship of the alleged tortfeasors.
       ¶{39} In this case, there is no genuine issue of material fact that the doctor and
nurses were employees of the hospital. As the Ohio Supreme Court explained in
Clark v. Southview Hosp. & Family Health Ctr. (1994), 68 Ohio St.3d 435, 438, 628
N.E.2d 46, “Generally, an employer or principal is vicariously liable for the torts of its
employees or agents under the doctrine of respondeat superior.” Id.              Therefore,
Appellants properly filed their complaint against the hospital alone. “For the wrong of a
servant acting within the scope of his authority, the 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.” Losito v. Kruse (1940), 136 Ohio St. 183, 187, 16 O.O. 185, 24 N.E.2d 705
       ¶{40} Conversely, Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4459, 833
N.E.2d 712, does not apply to this case because the alleged tortfeasor’s relationship to
the hospital was that of an independent contractor. Nor does Natl. Union Fire Ins. Co.
of Pittsburgh, PA v. Wuerth, 2009 -Ohio- 3601122 Ohio St.3d 594, 913 N.E.2d 939,
apply because it addresses cases involving claims of legal malpractice directly against
a law firm. Although distinguishing Wuerth from this case is that straightforward, the
hospital’s argument that it controls the resolution of this case runs the risk of muddying
case law dealing with tort liability.
       ¶{41} The procedural posture of Wuerth before the Ohio Supreme Court is as
follows, pointing to the limited nature of the issue being resolved:
       ¶{42} “On February 21, 2003, National Union filed the instant action in the
United States District Court for the Southern District of Ohio, claiming that Wuerth had
committed legal malpractice, that Lane Alton was vicariously liable for Wuerth's
malpractice, and that the firm itself had committed malpractice. While National Union
alleged numerous wrongful acts and omissions by several individuals in the firm,
Wuerth was the only individual named as a defendant in the complaint.
       ¶{43} “On a motion for summary judgment filed by Wuerth and Lane Alton, the
district court dismissed Wuerth from the action because National Union had filed its
complaint after the expiration of the one-year statute of limitations for legal-
malpractice claims set forth in R.C. 2305.11(A). Natl. Union Fire Ins. Co. of Pittsburgh,
PA v. Wuerth (S.D.Ohio 2007), 540 F.Supp.2d 900, 911. Because National Union had
no cognizable claims against Wuerth, the district court further dismissed the claims for
vicarious liability against Lane Alton. Id. at 912. Finally, the district court determined
that Lane Alton cannot be held directly liable for legal malpractice because it is not an
attorney and does not practice law. Id. at 913. Thus, the district court entered
summary judgment in favor of Wuerth and Lane Alton.” Id. ¶7-8.2
        ¶{44} The case was appealed and the Sixth Circuit certified a question of law
to the Ohio Supreme Court, which the court framed as two limited issues for review:
“[O]ne, whether a law firm may be directly liable for legal malpractice-i.e., whether a
law firm, as an entity, can commit legal malpractice-and two, whether a law firm may
be held vicariously liable for malpractice when none of its principals or employees are
liable for malpractice or have been named as defendants.” Id. ¶12. The Court in
Wuerth answered these two limited questions straightforwardly: “* * * a law firm does
not engage in the practice of law and therefore cannot directly commit legal
malpractice* * *[and] a law firm may be vicariously liable for legal malpractice only
when one or more of its principals or associates are liable for legal malpractice.” Id.
¶¶18 and 26.
        ¶{45} The hospital argues the holding in Wuerth is more expansive, but the
concurring opinion in that case in which a different majority of the panel joined, refutes
that position: “[O]ur holding today does not foreclose the possibility that a law firm may
be directly liable on a cause of action other than malpractice. Yet the limited record
and the nature of answering a certified question do not permit us to entertain such an
inquiry in this case.” Id. ¶35. The holding in Wuerth is addressing the narrow issue of
liability where the setting of the relationship between the alleged tortfeasors is a law
firm.
        ¶{46} Finally, Wuerth does not even tangentially touch on the issue of the
statute of limitations. Thus it cannot serve as a basis for the hospital’s argument
regarding the statute of limitations, which the majority has correctly concluded that the
hospital has waived.


2
 The District Court in Natl. Union Fire held that the statute of limitations had run against the named
partner, and that none of the other attorneys from Lane Alton had been named in the suit and the
statute of limitations had run as to them.
      ¶{47} In conclusion, because the hospital is the employer of the alleged
tortfeasors, appellants can directly pursue the hospital for their damages under the
theory of respondeat superior, without joining the employees as party defendants. For
these reasons, I concur in judgment only.
