      [Cite as Meehan v. AMN Healthcare, Inc., 2012-Ohio-557.]

                       IN THE COURT OF APPEALS
              FIRST APPELLATE DISTRICT OF OHIO
                        HAMILTON COUNTY, OHIO




DANIEL T. MEEHAN                             :          APPEAL NO. C-110442
                                                        TRIAL NO. A-1004478
     and                                     :
                                                             O P I N I O N.
MARY MEEHAN,                                 :

    Plaintiffs-Appellants,                   :

     vs.                                     :

AMN HEALTHCARE, INC.,                        :

CHRISTINA BERGFIELD,                         :

     and                                     :

BETHESDA HOSPITAL, INC.,                     :

     Defendants-Appellees.                   :



Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: February 15, 2012


Weber & Knapp, Co., L.P.A., and William C. Knapp, for Plaintiffs-Appellants.

Reminger Co., L.P.A. and Robert W. Hojnoski, for Defendants-Appellees AMN Healthcare,
Inc. and Christina Bergfield.

Frost Brown Todd, LLC and Douglas R. Dennis, for Defendant-Appellee Bethesda, Inc..



Please note: This case has been removed from the accelerated calendar
SYLVIA SIEVE HENDON, Judge.

       {¶1}    Plaintiffs-appellants Daniel and Mary Meehan appeal the trial court’s order

entering summary judgment in favor of defendants-appellees AMN Healthcare, Inc.

(“AMN”), Christina Bergfield (“Bergfield”), and Bethesda Hospital, Inc. (“Bethesda”). For

the following reasons, we affirm in part, reverse in part, and remand this case for further

proceedings.

                                               Facts

       {¶2}     The Meehans sued AMN, Bergfield, and Bethesda for damages resulting

from two decubitus ulcers that developed on Daniel Meehan’s skin while he was recovering

from hip surgery at Bethesda. Bergfield was working at Bethesda as a nurse through an

assignment from AMN, a temporary nursing service. Hospital records indicate that at 10:00

p.m. on May 20, 2009─aside from a surgical incision─Meehan’s skin integrity was good. By

8:00 a.m. on May 21, 2009, two decubitus ulcers, commonly referred to as “bedsores,” were

discovered on Meehan’s buttocks. Meehan required two surgeries to repair his damaged

skin and was thereafter confined to a nursing home for several weeks.

       {¶3}    According to discovery provided by Bethesda, Bergfield was Meehan’s nurse

during the time that his bedsores had developed. Meehan’s expert witnesses, a medical

doctor and a nurse, opined respectively (1) that bedsores did not normally progress as

rapidly as Meehan’s had, and that, due to their shape and positioning, the bedsores had

most likely been caused because Meehan had been left on a bed pan for an extended period

of time, and (2) that the nursing staff had breached the nursing standard of care by failing to

take the necessary steps to prevent the development of Meehan’s bedsores.              Dr. Ari

Masturzo, a wound-management physician at Bethesda, had examined Meehan in the

hospital and had charted that the bedsores were “likely device induced.” Meehan himself
had no recollection of the events that had transpired that night─he was lethargic and non-

responsive due to the effects of postoperative medication. And Bergfield was not available

to be deposed.

       {¶4}   AMN and Bergfield moved for summary judgment, arguing that there was no

expert testimony connecting Bergfield to the alleged breach in the nursing standard of care.

Bethesda moved for summary judgment on the same grounds. AMN and Bethesda both

further argued that, since the Meehans could not prove that Bergfield had been negligent,

they could not establish that AMN or Bethesda were vicariously liable. The defendants also

claimed that Meehan’s attorney had made several binding admissions that there was no

evidence that Bergfield had been negligent, and that summary judgment could be entered

on that ground as well.

       {¶5}   The trial court granted both motions and entered judgment in favor of AMN,

Bergfield, and Bethesda. The Meehans now appeal, raising one assignment of error.

                                     Standard of Review

       {¶6}   We review the granting of summary judgment de novo. Temple v. Wean, 50

Ohio St.2d 317, 364 N.E.2d 267 (1977); Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d

35, 506 N.E.2d 212 (1987). Summary judgment is appropriate only when the moving party

demonstrates (1) that no genuine issue of material fact exists, (2) that the moving party is

entitled to judgment as a matter of law, and (3) that reasonable minds could come to but

one conclusion and that conclusion is adverse to the party against whom the motion for

summary judgment is made. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations Bd.,

78 Ohio St. 3d 181, 183, 1997-Ohio-221, 677 N.E.2d 343.
                           Nurse Bergfield’s Alleged Negligence

       {¶7}   In a negligence action involving the professional skill and judgment of a

nurse, expert testimony must be presented to establish the prevailing standard of care, a

breach of that standard, and that the nurse’s negligence, if any, was the proximate cause of

the patient’s injury. Ramage v. Cent. Ohio Emergency Serv., Inc., 64 Ohio St.3d 97, 592

N.E.2d 828 (1992), paragraph one of the syllabus; see also Berdyck v. Shinde, 66 Ohio St.3d

573, 1993-Ohio-183, 613 N.E.2d 1014.

       {¶8}   The Meehans argue that because Bergfield was Meehan’s nurse when his

bedsores developed, and because expert testimony established that a breach in the nursing

standard of care led to Meehan’s injury, the trial court should not have entered judgment in

favor of the defendants. We disagree. Based on Ramage, the Meehans were required to

produce expert testimony specifically linking Bergfield to Meehan’s injuries in order to

properly support their cause of action. They did not. We, therefore, hold that the trial court

correctly entered summary judgment in favor of Bergfield.

       {¶9}   AMN, Bergfield, and Bethesda also claim that summary judgment was

appropriate because the Meehans’ attorney made numerous binding admissions to the

effect that there was no evidence that Bergfiled had been negligent. These “admissions,”

however, were made before the close of discovery and before Bethesda had informed the

Meehans that Bergfield had been the only nurse to care for or to have contact with Meehan

the night that his bedsores developed. Consequently, we find this argument to be without

merit. See generally Haney v. Law, 1st Dist. No. C-070313, 2008-Ohio-1843.

                                       Bethesda and AMN

       {¶10} The Meehans next contend that the trial court’s entry of summary judgment

in favor of AMN and Bethesda must be reversed. AMN and Bethesda argue that, because
the Meehans are unable to prove that Bergfield was negligent, AMN and Bethesda cannot be

held liable.

       {¶11} Medical claims alleging the negligence of a hospital employee, such as a

nurse, are governed by the doctrine of respondeat superior. Cope v. Miami Valley Hosp.,

2nd Dist. No. 24458, 2011-Ohio-4869, ¶ 18. Under that doctrine, a plaintiff may elect to sue

only the employer or both the employer and the employee. Id.; see also Losito v. Kruse, 136

Ohio St. 183, 24 N.E.2d 705 (1940). Therefore, even without Bergfield as a defendant, the

Meehans may nevertheless maintain a lawsuit against Bethesda for the alleged negligence of

Bethesda’s nursing staff. See Stanley v. Community Hosp., 2nd Dist. No. CA 2101 53, 2011-

Ohio-1290. And there is sufficient evidence in the record to show that there remain genuine

issues of fact concerning whether Bethesda’s nursing staff was negligent. Consequently, the

trial court erred in entering summary judgment in favor of Bethesda.

       {¶12} AMN’s only connection to this case, however, was that Bergfield was allegedly

on assignment from AMN while working at Bethesda.           Since summary judgment was

properly entered in favor of Bergfield, and since there is no evidence that AMN could

otherwise be held liable for the alleged negligence of Bethesda’s nursing staff, we hold that

summary judgment was properly entered in favor of AMN.

                                           Conclusion

       {¶13} For the foregoing reasons, the Meehans’ assignment of error is sustained in

part and overruled in part. The trial court’s judgment entering summary judgment in favor

Bergfield and AMN is affirmed. We reverse the court’s entry of summary judgment in favor

of Bethesda and remand this case for further proceedings.

       SUNDERMANN, J., concurs.,
       HILDEBRANDT, P.J., dissents.
       HILDEBRANDT, P.J., dissenting.

       {¶14} Because I would conclude that expert testimony was not necessary to

establish a link between Bergfield and the negligence alleged, and because I disagree with

the majority’s analysis concerning Bethesda’s potential liability, I respectfully dissent.

       {¶15} Expert testimony is required only where the testimony relates to matters

“beyond the ken” of the average layperson. State v. Koss, 49 Ohio St.3d 213, 216, 551

N.E.2d 970 (1990). Expert testimony is not required to establish “matters of common

knowledge and experience” or “subjects that are within the ordinary, common and general

knowledge and experience of mankind. ” Ramage, 64 Ohio St.3d at 103, 1992-Ohio-109,

592 N.E.2d 828, citing Johnson v. Grant Hosp., 32 Ohio St.2d 169, 291 N.E.2d 440 (1972);

see also Bostick v. Connor, 37 Ohio St.3d 144, 524 N.E.2d 881 (1988), paragraph three of

the syllabus.

       {¶16} Given the state of this record, it is well within the “general knowledge and

experience of mankind” to infer that Bergfield was the nurse responsible for Meehan’s

injuries. According to discovery provided by Bethesda, the only nurse who took care of or

had any contact with Meehan during the time in question was Bergfield. This fact is

undisputed. And the Meehans met their burden under Ramage to present expert testimony

establishing that a breach in the prevailing standard of nursing care had proximately caused

Meehan’s bedsores. I would, therefore, find that genuine issues of fact exist in regard to

Bergfield’s liabiliy, and that summary judgment should not have been entered in favor of

Bergfield, AMN, or Bethesda.

       {¶17} And although the majority correctly cites the proposition of law that, under

the doctrine of respondeat superior, the Meehans could have chosen to sue only Bethesda,

that doctrine “holds an employer liable for its employee’s torts committed in the scope of

employment.” Groob v. KeyBank, 155 Ohio App.3d 510, 2003-Ohio-6915, 801 N.E.2d 919
(1st Dist.), ¶ 31; Osborne v. Lyles (1992), 63 Ohio St.3d 326, 587 N.E.2d 825. Here, there

can be no employer liability because the only employee potentially responsible for the tort

alleged─i.e., negligence by the nurse who took care of Bergfield at the time that his bedsores

developed─is no longer a party in this case.

       {¶18} I would sustain in full the Meehans’ assignment of error.
