[Cite as Schelling v. Humphrey, 123 Ohio St.3d 387, 2009-Ohio-4175.]




   SCHELLING ET AL., APPELLEES, v. HUMPHREY; COMMUNITY HOSPITAL OF
                          WILLIAMS COUNTY, APPELLANT.
    [Cite as Schelling v. Humphrey, 123 Ohio St.3d 387, 2009-Ohio-4175.]
Negligent credentialing — Medical malpractice — Bifurcation of claims —
        Plaintiffs may pursue negligent-credentialing claim against hospital when
        doctor is no longer amenable to suit for medical malpractice because of
        bankruptcy.
  (No. 2007-2202 — Submitted October 7, 2008 — Decided August 26, 2009.)
    APPEAL from the Court of Appeals for Williams County, No. WM-07-001,
                                    2007-Ohio-5469.
                                 __________________
        CUPP, J.
        {¶ 1} This case presents the issue of whether a plaintiff can pursue a
negligent-credentialing claim against a hospital without a prior finding that the
plaintiff’s injury was caused by the negligence of an independent-contractor
physician, when the physician who is the subject of the negligent-credentialing
claim has filed for bankruptcy protection.
        {¶ 2} Plaintiffs, Loretta and Brent Schelling, sued Dr. Stephen
Humphrey for medical malpractice arising out of two surgeries he performed on
Loretta Schelling’s feet at the Community Hospital of Williams County. The
Schellings also sued the hospital for negligently granting staff privileges to
Humphrey.
        {¶ 3} After Humphrey filed a petition in bankruptcy, the Schellings
dismissed their claims against him without prejudice. The hospital then moved to
dismiss the negligent-credentialing claim, arguing that to prevail upon such a
claim, the Schellings must first show that Loretta Schelling’s injury was caused
                              SUPREME COURT OF OHIO




by Humphrey’s negligence. The trial court granted the motion to dismiss, but the
Sixth District Court of Appeals reversed. The appellate court held that the element
of the doctor’s negligence could be proven without the doctor being named as a
party in the case. The hospital sought review in this court, and we accepted the
hospital’s appeal.
       {¶ 4} Because the physician’s bankruptcy filing impeded the Schellings
from pursuing their claim against the physician through no fault of their own, we
conclude that in the unusual circumstances of this case, the Schellings may pursue
their negligent-credentialing claim against the hospital by first proving that
Humphrey was negligent and that his negligence was the proximate cause of
Loretta Schelling’s injury.
                                         I
                                         A
       {¶ 5} Loretta Schelling saw defendant Humphrey for foot pain. To
address her foot pain, he performed two tarsal tunnel release surgeries on her
heels, one on January 23, 2003, and the other on February 20, 2003, at defendant-
appellant hospital. Schelling alleged that she has continued to experience foot
pain and has suffered a permanent and partially disabling condition. The
Schellings sued Humphrey and the hospital, alleging that Loretta Schelling’s
ongoing foot pain was the result of complications from the two surgeries
Humphrey had performed and that Humphrey had committed malpractice in those
surgeries. Brent Schelling also alleged a claim of loss of consortium.
       {¶ 6} The Schellings then amended their complaint to assert a negligent-
credentialing claim against the Community Hospital of Williams County. The
Schellings alleged that the hospital failed to adequately review and evaluate
Humphrey’s education, character, and fitness to practice medicine and his past
performance as a doctor and that the hospital’s negligent granting of staff
privileges to Humphrey caused Loretta Schelling’s injuries.




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                                      January Term, 2009




         {¶ 7} Humphrey and the hospital denied the allegations. The hospital
moved to bifurcate the negligent-credentialing claim and the Schellings’ medical-
malpractice claim against the doctor. The hospital argued that the negligent-
credentialing claim did not become ripe until the doctor’s negligence was
determined, so the trial should be bifurcated and the negligent-credentialing claim
stayed until the Schellings obtained a finding of negligence against the doctor.
The trial court granted the motion to bifurcate the trial over the Schellings’
opposition but denied the motion to stay the negligent-credentialing claim.
         {¶ 8} Humphrey then filed a petition for bankruptcy. Upon receiving
notice of that petition, the trial court stayed the proceedings in this case in
accordance with the automatic stay of claims in a pending bankruptcy case
required by Section 362(a), Title 11, U.S.Code. Thereafter, the Schellings
dismissed their action against Humphrey without prejudice on October 30, 2006.
(No document reflecting the terms of any settlement of the claim against
Humphrey with the bankruptcy trustee was filed in this case, although the
Schellings acknowledged that a “settlement has been reached to some extent with
the Bankruptcy Trustee for Dr. Humphrey.”1) The Schellings then requested that
the stay of the common pleas court action be lifted, given the dismissal of
Humphrey from the case, and the trial court granted the motion. The bankruptcy
court later granted Humphrey a discharge in bankruptcy. By that order, any
attempt to collect a discharged debt from Humphrey was prohibited. See generally
Section 524(a)(2),        Title 11, U.S.Code. (The parties do not dispute that the
discharge applied to the Schellings’ claims against Humphrey.)
         {¶ 9} After the stay was lifted in the trial court, the hospital moved to
dismiss the negligent-credentialing claim. The hospital argued that, to its
knowledge, the bankruptcy court had not found that Humphrey was negligent in

1. No issue of contribution or indemnity is before us in this case.




                                                  3
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his treatment of Loretta Schelling and that Humphrey had not admitted
negligence, and without such a finding, the negligent-credentialing claim could
not be established. The trial court granted the motion to dismiss, holding that
without a finding or an admission that the doctor was negligent, the Schellings
could not proceed on the negligent-credentialing claim. The Schellings appealed.
                                         B
       {¶ 10} The Sixth District Court of Appeals reversed. That court concluded
that the Schellings were not precluded from maintaining their negligent-
credentialing claim because they could establish the element of the doctor’s
negligence even if the doctor was not a party to the case. Schelling v. Humphrey,
6th Dist. No. WM-07-001, 2007-Ohio-5469, ¶ 16-17. The court of appeals
rejected the hospital’s argument that a finding of the doctor’s negligence is a legal
prerequisite to a negligent-credentialing claim. Id. at ¶ 18. The hospital appealed
to this court, and we granted review. 117 Ohio St.3d 1423, 2008-Ohio-969, 882
N.E.2d 444.
                                         II
       {¶ 11} The issue in this case is whether a plaintiff can proceed on a
negligent-credentialing claim against a hospital without a prior finding, either by
adjudication or stipulation, that the plaintiff’s injury was caused by the
physician’s malpractice.
                                         A
       {¶ 12} This issue requires us to review the general principles in our cases
involving the relationship between an independent doctor and the hospital when
the doctor has been granted staff privileges. The parties do not dispute that
Humphrey was an independent contractor, not an employee of the hospital.
       {¶ 13} Doctors with staff privileges generally have the right to admit their
own private patients to the hospital and the right to use the hospital’s facilities.
Albain v. Flower Hosp. (1990), 50 Ohio St.3d 251, 256, 553 N.E.2d 1038, fn. 5,




                                         4
                               January Term, 2009




citing Classen, Hospital Liability for Independent Contractors: Where Do We Go
from Here? (1987), 40 Ark.L.Rev. 469, 478, fn. 44, overruled in part on other
grounds by Clark v. Southview Hosp. & Family Health Ctr. (1994), 68 Ohio St.3d
435, 628 N.E.2d 46. While the hospital has the power to grant and revoke staff
privileges and establish policies and procedures regarding patient care,
“accredited hospitals must allow their staff physicians ‘to provide patient care
services independently within the scope of their clinical privileges.’ ” Albain, 50
Ohio St.3d at 256, 553 N.E.2d 1038, quoting Joint Commission on Accreditation
of Hospitals, Accreditation Manual for Hospitals: 1986 Edition (1985) 101.
       {¶ 14} Ohio law requires hospitals to set standards and procedures to be
applied. See R.C. 3701.351(A). But “only licensed physicians, not hospitals, are
permitted to practice medicine or surgery in this state.” Albain, 50 Ohio St.3d at
259, 553 N.E.2d 1038, citing R.C. 4731.41.
       {¶ 15} A hospital does not need “to constantly supervise and second-
guess the activities of its physicians,” or to “ ‘pass upon the efficacy of
treatment’ ” or “ ‘decide for a doctor whether an operation is necessary.’ ” Id. at
259, 553 N.E.2d 1038, quoting Hendrickson v. Hodkin (1937), 250 App.Div. 619,
621, 294 N.Y.S. 982, 984-985 (Lazansky, J., dissenting), reversed (1937), 276
N.Y. 252, 11 N.E.2d 899. Nor is a hospital an insurer of the skills of the private
doctors to whom it has granted staff privileges. Id. at paragraph two of the
syllabus.
       {¶ 16} This court’s jurisprudence recognizes generally that an employer is
not vicariously liable for the negligence of an independent contractor, since the
employer has no right to control the mode and manner used by the independent
contractor to perform the work. Clark, 68 Ohio St.3d at 438, 628 N.E.2d 46; see
also Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 18.
Accordingly, a hospital’s mere granting of privileges to a doctor, which the
hospital may later revoke under its procedures, does not permit a court to hold the



                                        5
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hospital liable for the doctor’s negligent acts under a theory of respondeat
superior, or vicarious liability. Albain, 50 Ohio St.3d 251, 553 N.E.2d 1038,
paragraph one of the syllabus.
          {¶ 17} However, we also have held that a hospital has a direct duty to
grant and continue staff privileges only to competent doctors. Id. at paragraph two
of the syllabus. Thus, a hospital has a duty to remove “a known incompetent.” Id.
at 258.
          {¶ 18} To prove a negligent-credentialing claim, a plaintiff injured by the
negligence of a staff doctor must show that but for the lack of care in the selection
or retention of the doctor, the doctor would not have been granted staff privileges,
and the plaintiff would not have been injured. Albain, 50 Ohio St.3d 251, 553
N.E.2d 1038, paragraph two of the syllabus.2
          {¶ 19} The parties to this case do not dispute that to recover against a
hospital on a negligent-credentialing claim, the plaintiff must establish the
underlying medical malpractice of the doctor. The required element of the
plaintiff’s injury having been caused by the doctor’s malpractice goes to the
question of whether the hospital’s alleged negligent credentialing of the doctor
proximately caused the plaintiff’s injury. “Although medical malpractice claims
against the doctor and negligent credentialing claims against the hospital are
separate causes of action, * * * both causes of action fail without proof that the
physician’s failure to abide by ordinary standards of care proximately caused the
patient’s harm.” Browning v. Burt (1993), 66 Ohio St.3d 544, 566, 613 N.E.2d
993 (Moyer, C.J., concurring in part and dissenting in part).
                                              B



2. This case arose before the April 9, 2003 effective date of Sub.S.B. No. 179, 149 Ohio Laws,
Part II, 3596, 3602, which amended former R.C. 2305.25, now R.C. 2305.251, to provide for
rebuttable presumptions applicable to negligent-credentialing claims against a hospital. The
amended statute is not before us.




                                              6
                               January Term, 2009




       {¶ 20} The parties sharply dispute when a doctor’s malpractice must be
determined in regard to a negligent-credentialing claim. The hospital contends
that the doctor must be found negligent before a negligent-credentialing claim can
proceed against the hospital. The Schellings argue that the doctor’s negligence
may be proved in the same case and at the same time as the negligent-
credentialing claim against the hospital—a case within a case. The parties also
dispute whether the hospital should be required to defend against an allegation
that an independent-contractor doctor committed malpractice when the doctor is
not (and cannot be made) a party to the case. Compare Schelling v. Humphrey, 6th
Dist. No. WM-07-001, 2007-Ohio-5469, ¶ 18 (“Determining that staff physician
negligence must be proven as an element of a negligent-credentialing claim
against an employer does not interpose a legal requirement to name the staff
physician as a defendant and prove the negligence claim in the same complaint”)
and Davis v. Immediate Med. Servs., Inc. (Dec. 12, 1995), 5th Dist. No. 94 CA
0253, 1995 WL 809478, *7, reversed in part on other grounds (1997), 80 Ohio
St.3d 10, 684 N.E.2d 292 (finding no abuse of discretion in bifurcating the
medical-malpractice issue and the negligent-credentialing issue at trial when
doctors and hospital were named parties, reasoning that “the matter * * * did not
become ripe as to the issue of negligent credentialing until and if medical
negligence was found on behalf of appellee [doctor]”[emphasis added]).
       1.
       {¶ 21} The hospital contends that the trial court properly dismissed this
case on the basis that a prior finding of negligence is a legal prerequisite to
maintaining a negligent-credentialing claim. The hospital relies in part on Chief
Justice Moyer’s partial dissent in Browning, 66 Ohio St.3d at 566, 613 N.E.2d
993, in which he opined that “Albain requires that the underlying malpractice of
the physician be proven before the plaintiff can recover damages against the
hospital for its own negligence [in credentialing the physician].”



                                         7
                            SUPREME COURT OF OHIO




       {¶ 22} But Browning did not address the issue we are called upon to
decide in this case—whether a doctor’s medical malpractice must be determined
before a hospital may be called upon to defend against a negligent-credentialing
claim. In Browning, the plaintiffs sued two doctors for medical malpractice and a
hospital for the negligent credentialing of the doctors. 66 Ohio St.3d at 545, 613
N.E.2d 993. The plaintiffs obtained a default judgment—i.e., a previous finding
of malpractice—against one doctor, but the other doctor remained a party. Id. at
554, 613 N.E.2d 993, fn. 10. We held that an action against a hospital for bodily
injury arising out of the negligent credentialing of a doctor is subject to the two-
year statute of limitations in R.C. 2305.10 rather than the one-year statute in R.C.
2305.11 that is applicable to medical-malpractice actions. Id. at paragraphs three
and four of the syllabus. Chief Justice Moyer dissented in part, reasoning that
“[w]ithout an underlying harm to the hospital’s patient through medical
malpractice, an action against the hospital for negligent credentialing will never
arise.” Id. at 566. The Chief Justice thus opined that a negligent-credentialing
claim was subject to the same one-year statute of limitations as a medical claim,
not the two-year statute of limitations as a bodily-injury claim. The ruling in
Browning regarding the statute of limitations for a negligent-credentialing claim
does not answer the question of when a finding that a plaintiff’s injury was caused
by a doctor’s medical malpractice must be made in regard to the negligent-
credentialing claim.
       {¶ 23} Nor did Browning hold that a negligent-credentialing claim can be
established without the doctor being a party in the case, as the court of appeals in
this case determined. Schelling, 2007-Ohio-5469 at ¶ 14. As noted above, in
Browning, one of the doctors was still a party, and a default judgment had been
issued against the other doctor on the plaintiffs’ medical-malpractice claim. 66
Ohio St.3d at 554, 613 N.E.2d 993, fn. 10. Thus, Browning does not answer the
question here—whether the Schellings can establish the independent-contractor




                                         8
                                     January Term, 2009




doctor’s malpractice, for the purposes of a negligent-credentialing claim, without
the doctor remaining a party in the action and without a prior finding of the
doctor’s negligence.
        {¶ 24} The hospital argues that it would be inappropriate to require
hospitals to defend against a claim of an independent-contractor doctor’s
negligence when there has been no prior finding of malpractice and when the
doctor is not a party to the case. The hospital claims that such a requirement
would be inconsistent with Comer and Albain. Comer held that agency by
estoppel imposes vicarious liability on a hospital only when the independent-
contractor physician has been found liable. Albain held that a hospital may not be
held vicariously liable under respondeat superior for a doctor’s negligence merely
because the hospital granted privileges to the doctor. But the only claim against
the hospital in this case is for negligent credentialing, not agency by estoppel. The
Schellings are not arguing that the hospital is vicariously liable for the doctor’s
negligence.
        {¶ 25} The hospital and its amici also contend that the effect of the court
of appeals’ ruling, which allowed the Schellings to proceed with their negligent-
credentialing claim without the physician being a named party, is to require the
hospital to defend the medical-negligence claim against Humphrey even though
the hospital did not direct or control his treatment of Schelling. Cf. Albain, 50
Ohio St.3d at 259, 553 N.E.2d 1038. The hospital asserts that it is inequitable to
require it to defend against Humphrey’s negligence because he is no longer a
party to the case and has no incentive to cooperate in the defense.3
        2.



3. The hospital asserts that due to the expiration of the statute of limitations to sue for medical
malpractice, Humphrey can no longer be sued. That issue is not before us today. The hospital also
asserts that Humphrey no longer practices medicine, a matter that does not appear in the record of
this case.




                                                9
                             SUPREME COURT OF OHIO




       {¶ 26} In a negligent-credentialing case, when the doctor is or has been
amenable to suit, either the doctor ordinarily will have been found liable for
medical malpractice in a prior proceeding or the claim against the doctor for
medical malpractice will be joined to the claim against the hospital for negligent
credentialing. Thus, the hospital would not be required to defend against a
negligent-credentialing claim before the physician’s malpractice has been
determined, either in a prior proceeding, or as the first part of the case against
both the doctor and the hospital.
       {¶ 27} The bifurcation of a negligent-credentialing claim and the
underlying medical-malpractice claim avoids the problems of jury confusion or
prejudice that may result from admitting evidence of prior acts of malpractice in a
combined trial on both claims. Evidence of prior acts of malpractice by the doctor
may be relevant to a negligent-credentialing claim, see Albain, 50 Ohio St.3d at
258, 553 N.E.2d 1038, but presents the risk of unfair prejudice in determining
whether the doctor committed malpractice, see Evid.R. 403(A).
       {¶ 28} Bifurcation also allows a negligent-credentialing claim against a
hospital to be dismissed if the plaintiff does not prevail on the malpractice claim
against the doctor. If the fact-finder determines that negligence of the doctor was
not the proximate cause of the plaintiff’s injury, then a hospital’s grant of staff
privileges to a doctor is not the cause of the plaintiff’s injury, as required by
Albain. 50 Ohio St.3d 251, 553 N.E.2d 1038, paragraph two of the syllabus (“a
plaintiff injured by the negligence of a staff physician must demonstrate that but
for the lack of care in the selection or the retention of the physician, the physician
would not have been granted staff privileges, and the plaintiff would not have
been injured” [emphasis added]).
       3.
       {¶ 29} This case presents an unusual fact pattern in which the doctor
(Humphrey) is no longer amenable to suit and the Schellings were prohibited




                                         10
                                January Term, 2009




from pursuing a claim against him shortly after they sued him, initially because of
the automatic stay in place after he filed his bankruptcy petition. See Section
362(a), Title 11, U.S.Code (generally barring commencement or continuation of
actions against the bankruptcy debtor). The bankruptcy court’s order discharging
Humphrey’s debts also notified claimants that they could not attempt to collect
any debts that had been discharged. The Schellings did not present any document
memorializing a settlement with the bankruptcy trustee of the Schellings’
malpractice claim against Humphrey, but their lawyer represented at oral
argument that the trustee had paid them a percentage of the bankruptcy estate. The
parties do not dispute that there was no finding in the bankruptcy proceeding that
Humphrey was negligent in treating Loretta Schelling, nor did they dispute that
Humphrey did not contest the Schellings’ claim of medical malpractice in the
bankruptcy proceeding.
       {¶ 30} Under the unusual circumstances of this case, where the
bankruptcy proceedings impeded the Schellings from joining the physician as a
party, we conclude that the Schellings should be permitted to prove that
Humphrey committed medical malpractice and that the alleged malpractice
caused the Schellings’ injury, as an element of their negligent-credentialing claim
against the hospital. We have held that a negligent-credentialing claim against a
hospital is not one for vicarious (or secondary) liability for the doctor’s (primary)
liability for medical malpractice and that it stems from a hospital’s direct duty to
grant and continue staff privileges only to competent doctors. Albain, 50 Ohio
St.3d 251, 553 N.E.2d 1038, paragraphs one and two of the syllabus; Browning,
66 Ohio St.3d at 556, 613 N.E.2d 993. Thus, Humphrey’s present lack of
amenability to suit does not in and of itself extinguish the Schellings’ negligent-
credentialing claim against the hospital. Accordingly, the Schellings should be
permitted to present their claim that the hospital’s alleged negligent credentialing
of Humphrey caused their injuries.



                                         11
                             SUPREME COURT OF OHIO




       {¶ 31} Consistent with our analysis in this opinion, however, bifurcating
the determination of whether Humphrey committed medical malpractice and the
Schellings’ negligent-credentialing claim against the hospital would appropriately
allow the fact-finder to determine whether Humphrey was negligent in his
medical treatment of Loretta Schelling before the hospital must defend against the
rest of the negligent-credentialing claim at trial. Only if the Schellings prevail on
the issue of Humphrey’s alleged malpractice should the rest of their negligent-
credentialing claim against the hospital proceed.
                                        III
       {¶ 32} Accordingly, in the usual case, either a plaintiff must obtain a prior
determination that a doctor committed medical malpractice and that the
malpractice proximately caused the plaintiff’s injury or the doctor will be a party
to the case that includes the negligent-credentialing claim against the hospital.
However, in the unusual circumstances of this case, Humphrey, the doctor, is no
longer amenable to suit because of the bankruptcy stay and discharge, and the
plaintiffs, through no fault of their own, cannot maintain their malpractice claim
against him. Therefore, the Schellings are permitted to pursue their negligent-
credentialing claim against the hospital, as discussed above.
       {¶ 33} For the reasons stated in this opinion, the judgment of the court of
appeals is affirmed, and the cause is remanded to the trial court for further
proceedings not inconsistent with this opinion.
                                                                Judgment affirmed.
       MOYER, C.J., and PFEIFER and O’CONNOR, JJ., concur.
       LUNDBERG STRATTON, O’DONNELL, and LANZINGER, JJ., dissent.
                              __________________
       LUNDBERG STRATTON, J., dissenting.
       {¶ 34} I respectfully dissent. I believe that the majority is making an
exception to the law merely because of the “unusual fact pattern” of this case, i.e.,




                                         12
                                January Term, 2009




the allegedly negligent doctor is no longer amenable to suit because any debt to
these plaintiffs has been discharged in bankruptcy. Consequently, the hospital is
burdened with defending an allegation of negligence against a doctor who is not a
hospital employee but rather is a nonparty with no stake in the outcome and no
duty to cooperate or participate in the defense of the case.
       {¶ 35} Furthermore,      the    majority    ordered     bifurcation—a    tacit
acknowledgement that a finding of the doctor’s negligence, or lack thereof, must
be made prior to proceeding on the remaining elements of the negligent-
credentialing claim. As a result, the hospital is forced to defend a separate, albeit
related, allegation of negligence against a nonparty doctor before the negligent-
credentialing claim is ripe. I believe that this outcome requires the hospital to
become an insurer of the doctor, a result that is contrary to Albain v. Flower Hosp.
(1990), 50 Ohio St.3d 251, 553 N.E.2d 1038, overruled in part on other grounds,
Clark v. Southview Hosp. & Family Health Ctr. (1994), 68 Ohio St.3d 435,628
N.E.2d 46, in which we held that a hospital is not an insurer of the skills of a
private physician.
       {¶ 36} The plaintiffs dismissed the doctor in this action. Unfortunately,
he is no longer amenable to a suit because of the bankruptcy discharge. I believe
that in the absence of a prior determination that he committed medical malpractice
that proximately caused the plaintiff’s injury, the plaintiff is unable to maintain a
negligent-credentialing claim against the hospital. The unusual facts of this case
do not justify creating an exception to the law for these plaintiffs and placing a
burden, not authorized by law, upon the hospital to defend an action against a
nonparty so that the plaintiffs may pursue their action against the hospital.
       {¶ 37} Consequently, I dissent.
       O’DONNELL and LANZINGER, JJ., concur in the foregoing opinion.
                               __________________




                                         13
                             SUPREME COURT OF OHIO




       Williams DeClark Tuschman Co., L.P.A., Chad M. Tuschman, and Peter
O. DeClark, for appellees.
       Reminger Co., L.P.A., and Jeanne M. Mullin, for appellant.
       Bricker & Eckler, L.L.P., Catherine M. Ballard, and Anne Marie Sferra,
urging reversal for amici curiae, Ohio Hospital Association and Ohio Osteopathic
Hospital Association.
                             ______________________




                                       14
