[Cite as Cope v. Miami Valley Hosp., 195 Ohio App.3d 513, 2011-Ohio-4869.]




                          IN THE COURT OF APPEALS OF OHIO
                             SECOND APPELLATE DISTRICT
                                MONTGOMERY COUNTY

COPE et al.,                                     :
                                                 :       Appellate Case No. 24458
        Appellants,                              :
                                                 :       Trial Court Case No. 2009-CV-01469
v.                                               :
                                                 :
MIAMI VALLEY HOSPITAL et al. ,                   :       (Civil Appeal from
                                                 :       (Common Pleas Court)
        Appellees.                      :
                                            ...........


                                            OPINION

                       Rendered on the 23rd day of September, 2011.

                                             .........

        Flanagan, Lieberman, Hoffman & Swaim and Bradley C. Smith, for appellants.

       Ewing, McMillin & Willis P.L.L.C., C. David Ewing, and Anne Milton McMillin,
for appellee Radiology Physicians, Inc.

      Freund, Freeze & Arnold, Neil F. Freund, and Kelly M. Schroeder, for appellee
Miami Valley Hospital.

      Arnold Todaro & Welch and John Welch, for appellees Anesthesia Services
Network, Nancy Kwon, M.D., and David Bennett, C.R.N.A.

        Susan Blasik-Miller, for appellee Michael Gregg, M.D.

                                             .........

        CANNON, Judge.

        {¶ 1} Appellants, Eva G. Cope and Edward Cope, appeal from the decision

of the Montgomery County Court of Common Pleas granting appellee Miami Valley
                                                                                    2


Hospital’s motion for summary judgment.

      Factual Background

      {¶ 2} In December 2007, Mrs. Cope underwent an MRI procedure at Miami

Valley Hospital (“MVH”), allegedly performed by David Bennett, Nancy Kwon, and

unidentified MRI technicians. During the procedure, Mrs. Cope was anesthetized.

Immediately after the procedure, a large blister was noticed on Mrs. Cope’s arm,

which was soon after diagnosed as a third-degree burn. As a result, Mrs. Cope

bears a permanent scar from the burn.

      {¶ 3} The Copes filed a suit alleging medical-negligence claims against the

following defendants: MVH, Nicole Lockhart (associated with MVH), Anesthesia

Services Network (“ASN”), David Bennett (associated with ASN), Nancy Kwon

(associated with ASN), Radiology Physicians, Inc., and Michael Gregg (associated

with Radiology Physicians, Inc.).    Subsequently, the Copes voluntarily dismissed

Nicole Lockhart of MVH, Radiology Physicians, Inc. and Michael Gregg of Radiology

Physicians Inc., leaving only MVH and defendants associated with ASN.

      {¶ 4} MVH soon filed for summary judgment on the grounds that the Copes

had dismissed the only agent or employee of MVH, and the statute of limitations

against any other employee has run.       The court agreed that the Copes had no

cognizable claim against MVH and entered summary judgment.

      {¶ 5} The Copes then filed a motion for reconsideration, adding that MVH

could still be found vicariously liable under an agency-by-estoppel theory as a result

of the conduct of the remaining individual defendants. Ultimately, the trial court also

rejected this theory of liability and affirmed its original judgment granting MVH’s
                                                                                     3


motion for summary judgment.

       {¶ 6} The Copes requested that the trial court certify “no just reason for

delay,” pursuant to Civ.R. 54(B), as “[i]t is well-established that in a situation where

there are multiple claims and/or parties involved, an entry that enters final judgment

as to one or more but fewer than all of the claims is not a final appealable order in

the absence of Civ.R. 54(B) language stating that ‘there is no just reason for

delay[.]’ ” Montello v. Ackerman, Lake App. No. 2009-L-111, 2009-Ohio-6383, at

¶ 6, quoting Girard v. Leatherworks Partnership, Trumbull App. No. 2001-T-0138,

2002-Ohio-7276, at ¶ 17. Here, the trial court granted the Copes’ request, making

the entry of summary judgment a final, appealable order and conferring jurisdiction

on this court to hear this appeal.

       Assignment of Error

       {¶ 7} The Copes timely appeal and assert a sole assignment of error:

       {¶ 8} “The trial court erred in granting Miami Valley Hospital’s motion for

summary judgment.”

       {¶ 9} Specifically, the Copes set forth two reasons why the court erred.

First, the Copes contend that MVH is vicariously liable for the negligence of its

nonphysician MRI technicians (though not named as defendants) and of its agents,

servants, and employees acting on behalf of MVH. Second, they argue that MVH

can still be found vicariously liable through Nancy Kwon and David Bennett via an

agency-by-estoppel theory.

       {¶ 10} Conversely, MVH contends that because the Copes dismissed all

employees of MVH and the statute of limitations has expired, the hospital cannot be
                                                                                     4


found vicariously liable since only individuals can commit malpractice, not the

hospital as an entity. Further, MVH argues that the issue of agency by estoppel is

improperly before this court and should not be considered.

         Standard of Review

         {¶ 11} An appellate court reviews an award of summary judgment de novo.

Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. Thus, the court of

appeals applies “the same standard as the trial court, viewing the facts in the case in

a light most favorable to the non-moving party and resolving any doubt in favor of the

non-moving party.”      Stanley v. Community Hosp., Clark App. No. 2010 CA 53,

2011-Ohio-1290, at ¶ 7, citing Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d

7, 12.

         {¶ 12} Pursuant to Civ.R. 56(C), summary judgment is proper in the following

circumstance:

         {¶ 13} “ ‘(1) No genuine issue as to any material fact remains to be litigated;

(2) the moving party is entitled to judgment as a matter of law; and (3) it appears

from the evidence that reasonable minds can come to but one conclusion, and

viewing such evidence most strongly in favor of the party against whom the motion

for summary judgment is made, that conclusion is adverse to that party.’ ” Stanley

at ¶ 9, quoting Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.

         {¶ 14} To prevail on a motion for summary judgment, the moving party must

be able to prove there is no genuine issue as to any material fact, and therefore

judgment as a matter of law is appropriate. Id., citing Dresher v. Burt (1996), 75

Ohio St.3d 280, 293. “The non-moving party must then present evidence that some
                                                                                       5


issue of material fact remains for the trial court to resolve.” Id. As explained in

Dresher:

       {¶ 15} “That is, the moving party bears the initial burden of demonstrating that

there are no genuine issues of material fact concerning an essential element of the

opponent’s case.      To accomplish this, the movant must be able to point to

evidentiary materials of the type listed in Civ.R. 56(C) that a court is to consider in

rendering summary judgment.         The evidentiary materials listed in Civ.R. 56(C)

include ‘the pleading, depositions, answers to interrogatories, written admissions,

affidavits, transcripts of evidence in the pending case, and written stipulations of fact,

if any.’ These evidentiary materials must show that there is no genuine issue as to

any material fact, and that the moving party is entitled to judgment as a matter of

law.” (Emphasis sic.) Dresher, 75 Ohio St.3d at 292-293.

       Application of Wuerth

       {¶ 16} In granting MVH’s motion for summary judgment, the trial court relied

on Natl. Union Fire Ins. Co. of Pittsburgh v. Wuerth, 122 Ohio St.3d 594,

2009-Ohio-3601.      In Wuerth, the Supreme Court of Ohio was faced with the

question of whether a legal-malpractice claim can be maintained against a law firm

when all of the principals and employees had been dismissed or had never been

sued in the first instance. Id. at ¶ 1.

       {¶ 17} Wuerth began its analysis by addressing the similarities between legal

and medical malpractice: “in the medical context, we have recognized that because

only individuals practice medicine, only individuals can commit medical malpractice.

For instance, in Browning v. Burt (1993), 66 Ohio St.3d 544, 556, “we explained that
                                                                                        6


‘[a] hospital does not practice medicine and is incapable of committing malpractice.’ ”

 Id. at ¶ 14. Rather “only physicians can commit medical malpractice.” Id., citing

Richardson v. Doe (1964), 176 Ohio St. 370. Thus, applying this rationale to the law

firm, the court held that a law firm is not vicariously liable for legal malpractice unless

one of its principals or associates is first found to be liable because only individuals,

and not the entity of a firm, can commit malpractice. Id. at ¶ 26.

       {¶ 18} Despite this holding, Wuerth does not necessarily distort the contours

of respondeat superior. Claims for the negligence of a hospital’s employee, such as

a nurse, or here, a technician, are still governed by the law of respondeat superior,

and indeed, Wuerth acknowledges that a plaintiff may sue a master, or servant, or

both. Id. at ¶ 21, quoting Losito v. Kruse (1940), 136 Ohio St. 183. Wuerth instead

carves a careful distinction—that individuals (attorneys and physicians) commit

malpractice, but whole entities (firms and hospitals) do not, meaning that a

malpractice claim cannot be maintained directly against an entity when all the

relevant principals and employees have either been dismissed or were never sued.

Id. at ¶ 23.

       {¶ 19} In this case, the trial court found that because there is no agent or

employee of MVH left active in the case, summary judgment is appropriate because

a hospital cannot commit malpractice. Specifically, the court in its entry of summary

judgment continued that “a hospital may only be vicariously liable for medical

malpractice only when one or more of its principals or associates are liable for

malpractice.”

       {¶ 20} This court recently discussed Wuerth, summary judgment, and
                                                                                        7


respondeat superior pertaining to hospital employees in Stanley v. Community

Hosp., Clark App. No. 2010CA53, 2011-Ohio-1290, which was decided the same

day that the Copes filed their initial brief. In Stanley, George Stanley alleged that

Community Hospital was liable for injuries sustained during treatment as a result of

the negligence of employee nurses. Id. at ¶ 3. Community Hospital argued that its

nurses are not liable because they were never sued and because the statute of

limitations had run. Further, Community Hospital argued that because a hospital

cannot commit medical malpractice and because a hospital cannot be vicariously

liable unless its employees are found to be liable, summary judgment was

appropriate. Id. at ¶ 5. The trial court agreed with Community Hospital and entered

summary judgment, relying on the holding in Wuerth. Id. at ¶ 6.

       {¶ 21} On appeal, this court held that the holding in Wuerth must be applied

narrowly—that is, specifically to malpractice suits, and not to other medical claims.

Id. at ¶ 22.    This distinction between malpractice and other medical claims is

important because the Supreme Court of Ohio continues to take the traditional

narrow view of who may commit malpractice: “ ‘[I]t is well-established common law of

Ohio that malpractice is limited to the negligence of physicians and attorneys.’ ”

Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, at ¶ 15, quoting Thompson v.

Community Mental Health Ctrs. of Warren Cty., Inc., 71 Ohio St.3d 194, 195. While

“ ‘the term, malpractice, is sometimes used loosely to refer to the negligence of a

member of any professional group, * * * legally and technically, it is still subject to the

limited common-law definition.’ ”     Thompson at 195, quoting Richardson v. Doe

(1964), 176 Ohio St. 370.
                                                                                      8


      {¶ 22} Thus, no other medical employees are subject to malpractice; for

instance, “[t]he Ohio Supreme Court has held that the negligence of nurses

employed by a hospital does not fall under the definition of ‘malpractice’ as

discussed in R.C. 2305.11(A). Lombard v. Good Samaritan Med. Ctr. (1982), 69

Ohio St.2d 471 * * *. Rather, the alleged negligence of a nurse employee falls under

the definition of a ‘medical claim’ in R.C. 2305.113(A).               Id.”     Stanley,

2011-Ohio-1290, at ¶ 22.

      {¶ 23} Physicians and attorneys must be alone in this category: “ ‘[I]it is the

misfortune of both physicians and lawyers that, in a very considerable proportion of

their cases, they are unable to accomplish the purpose desired.               * * * Since

physicians must often fail to fulfill expectations, they, along with lawyers, are

peculiarly susceptible to the charge of failure in the performance of their professional

duties.’ ” Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, at ¶ 13, quoting Richardson

v. Doe, 176 Ohio St. at 372.

      {¶ 24} Additionally, the distinction between “malpractice” and “medical claims”

is specifically noted in the Ohio Revised Code: “R.C. 2305.11(A) states that ‘an

action for malpractice other than an action upon a medical * * * claim * * * shall be

commenced within one year after the cause of the action accrued.’                   R.C.

2305.113(A) states that ‘an action upon a medical * * * claim shall be commenced

within one year after a cause of action accrued.’ ” (Emphasis added by Supreme

Court.) Stanley, 2011-Ohio-1290, at ¶ 21.

      {¶ 25} As noted in Stanley, nowhere in Wuerth does the court conclude that a

medical claim brought against a hospital for the alleged negligence of one of its
                                                                                        9


employees constitutes a malpractice claim.         Id. at ¶ 22.    Ultimately, this court’s

decision to give Wuerth a narrow application is supported by the public-policy

considerations found at the heart of the “respondeat superior” doctrine, which

supports vicarious liability. A hospital employs a wide range of people who provide

a variety of medical service to patients. The hospital is in exclusive control of hiring

criteria, training, and routine performance evaluation and review. A hospital should

be responsible for the negligence of its employees who perform medical services

and act in the scope of their employment. To allow a hospital to be shielded from

the rule of “respondeat superior” liability due to a court’s liberal application of the

distinction carved out by Wuerth would effectively allow the distinction to swallow the

rule.

        {¶ 26} There is no reason to treat a medical technician differently from a

nurse—neither is considered a physician.         While MVH urges this court to treat

radiological technicians as physicians due to some similarities between the two (e.g.,

Ohio certification and continuing-education requirements), a radiological technician is

not a physician. Even if a technician or nurse is doing work similar to that of a

physician, “the fact that a particular act is within the duty of care owed to a patient by

an attending physician does not necessarily exclude it from the duty of care owed to

the patient by a nurse [or technician.]” Berdyck v. Shinde (1993), 66 Ohio St.3d

573, paragraph five of the syllabus.

        {¶ 27} MVH urges this court to delay this decision until the Supreme Court of

Ohio decides whether it will accept jurisdiction over Stanley. However, the court

declined jurisdiction to hear Stanley after MVH filed its brief.
                                                                                     10


       Agency by Estoppel

       {¶ 28} Next, we must address the agency-by-estoppel theory presented by the

Copes in their motion to reconsider. At the onset, MVH is incorrect in asserting that

this court is precluded from addressing this argument.         It is well founded that

“ ‘reviewing courts do not consider questions not presented to the court whose

judgment is sought to be reversed.’ ” State ex rel. Quarto Mining Co. v. Foreman

(1997), 79 Ohio St.3d 78, 81, quoting Goldberg v. Indus. Comm. (1936), 131 Ohio

St. 399. See also State ex rel. Ohio Civ. Serv. Employees Assn., AFSCME, Local

11, AFL-CIO v. State Emp. Relations Bd., 104 Ohio St.3d 122, 2004-Ohio-6363, at

¶ 10. However, the agency-by-estoppel theory was presented by the Copes in their

motion to reconsider. MVH argued against this theory in its response to the Copes’

motion.   The trial court, in denying the reconsideration motion and upholding

summary judgment for MVH, noted that it considered all motions set forth by the

parties, which would naturally include the agency-by-estoppel argument. Thus, this

argument is properly before this court.

       {¶ 29} “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 or knowledge to the contrary, the patient looks to the hospital,

as opposed to the individual practitioner, to provide competent medical care.” Clark

v. Southview Hosp. & Family Health Ctr. (1994), 68 Ohio St.3d 435, syllabus.

       {¶ 30} “Agency by estoppel is not a direct claim against a hospital, but an

indirect claim for the vicarious liability of an independent contractor with whom the
                                                                                  11


hospital contracted for professional services.” Comer v. Risko, 106 Ohio St.3d 185,

2005-Ohio-4559, at ¶ 27. Relying on these cases, in Tausch v. Riverview Health

Inst., L.L.C., 187 Ohio App.3d 173, 2010-Ohio-502, this court observed that “ ‘agency

by estoppel is a derivative claim of vicarious liability whereby the liability of the

hospital must flow through the independent-contractor physician.’ ”      Id. at ¶ 19,

quoting Comer v. Risko at ¶ 28.

      {¶ 31} Here, the Copes properly alleged this agency theory in their motion to

reconsider as an avenue by which agency might be proven. MVH, as the party

moving for summary judgment, bore the burden of demonstrating that there were no

genuine issues of material fact concerning an essential element of the Copes’

theory. In an effort to meet this burden, MVH presented evidence to the trial court

revealing that Mrs. Cope had a treating physician who ordered an MRI procedure.

Deposition testimony attached to MVH’s response in opposition to reconsideration

additionally revealed that the parties knew the procedure was going to be an MRI

under anesthesia because Mrs. Cope was uncomfortable lying flat and still for the

length of time that was necessary.

      {¶ 32} However, it is not clear whether Mrs. Cope’s physician specifically

selected Bennett and Kwon as the individuals to serve Mrs. Cope while she was at

MVH. It is also not clear whether the physician selected MVH as the site of the

procedure.   Thus, Mrs. Cope’s reliance, or lack thereof, on the hospital is not

entirely clear. MVH attached only a portion of the deposition transcript to its motion

before the trial court. The transcript proves only that Mrs. Cope had a physician

who ordered an MRI. The complete scope of this physician’s involvement and Mrs.
                                                                                         12


Cope’s reliance on her physician is unknown.              With this essential question

remaining, MVH did not meet its burden to establish that no genuine issue of

material fact remained to be litigated.

       {¶ 33} Furthermore, there is no record that the deposition transcripts were

filed with the trial court.   As noted supra, “the movant must be able to point to

evidentiary materials of the type listed in Civ.R. 56(C).” Dresher, 75 Ohio St.3d at

292.    “While the movant is not necessarily obligated to place any of these

evidentiary materials in the record, the evidence must be in the record or the motion

cannot succeed.” Id. at 293. Based on the evidence in the record, and considering

the motions and attachments thereto, MVH failed to present sufficient evidence to

prove that no genuine issue of material fact remained with the case.                 In fact,

genuine issues of material fact exist, including Mrs. Cope’s level of reliance on her

physician and the physician’s involvement in ordering the MRI.

       Affirming Summary Judgment on Separate Grounds

       {¶ 34} Finally, we must note a separate argument by appellee. MVH alleges

that this court should affirm the trial court’s summary judgment because the Copes

“failed to submit an affidavit of merit critical” to the radiologist technician or

technicians. While the Copes acknowledge this argument by responding to it in a

reply brief, this issue is not properly before the court for two distinct reasons:

       {¶ 35} First, if MVH wished to allege that the summary-judgment ruling was

correct on a separate basis, the avenue to do so would have been via a

cross-assignment of error.        A cross-assignment of error is distinct from a

cross-appeal.    R.C. 2505.22 provides:      “In connection with an appeal of a final
                                                                                   13


order, judgment, or decree of a court, assignments of error may be filed by an

appellee who does not appeal * * *.”            See Ohio Assn. of Pub. School

Employees/AFSCME Local 4, AFL-CIO v. Madison Local School Dist. Bd. of Edn.,

190 Ohio App.3d 254, 2010-Ohio-4942, at ¶ 83-89 (Cannon, J., concurring). Here,

although MVH had the option to do so, it did not file any cross-assignments of error

for this court to consider.

       {¶ 36} Second, MVH did not allege to the trial court that summary judgment

should be entered for the additional reason of a missing affidavit. It is a universal

principle of appellate procedure that “[a] party who fails to raise an argument in the

court below waives his or her right to raise it [on appeal].” State ex rel. Zollner v.

Indus. Comm. (1993), 66 Ohio St.3d 276, 278.         MVH did not raise the affidavit

argument to the trial court in support of summary judgment. While an appellate

court may affirm a trial court’s decision on separate grounds, the evidentiary basis on

which the appellate court relies still must have been adduced before the trial court.

State v. Peagler (1996), 76 Ohio St.3d 496, 499. MVH did not direct the trial court

to an evidentiary basis supporting such a contention, as required by Civ.R. 56(C).

Thus, this argument cannot and will not be considered now.

       Conclusion

       {¶ 37} This court has held that a suit against a hospital could proceed where

an alleged negligent employee was not named as a defendant.                   Stanley,

2011-Ohio-1290 at ¶ 22, citing Holman v. Grandview Hosp. Med. Ctr. (1987), 37

Ohio App.3d 151.      We hold, as this court did in Stanley, that Wuerth does not

preclude a suit against MVH for the negligence of its employee technicians, despite
                                                                                  14


the fact the technician or technicians were not named as defendants in the Copes’

complaint. Because the suit containing the medical-negligence claims was timely

filed for the alleged negligence of an MRI technician or technicians, respondeat

superior applies.   Since Wuerth is inapplicable to the instant medical-negligence

claim, summary judgment was not appropriate.            Additionally, because factual

questions exist about the agency-by-estoppel theory of liability, summary judgment

was not appropriate with regard to that claim.

       {¶ 38} As a result, MVH is not entitled to judgment as a matter of law, and the

trial court erred in granting MVH’s motion for summary judgment.

       {¶ 39} The Copes’ sole assignment of error is therefore sustained.         The

judgment of the trial court is reversed, and this cause is remanded for proceedings

consistent with this opinion.

                                                                   Judgment reversed

                                                                and cause remanded.

                                  ..............

GRADY, P.J., and FROELICH, J., concur.

TIMOTHY P. CANNON, J., of the Eleventh District Court of Appeals, sitting by
assignment.
