H.B 179 and its Effect on Clawson

On May 22, 2023, the Ohio House of Representatives introduced H.B. 179, which seeks to amend R.C. 2305.15 and introduce R.C. 2307.241. The Bill was passed by the House on January 10, 2024, and thereafter was introduced to the Ohio Senate on January 16, 2024. On June 26, 2024, the Ohio Senate passed the Bill and sent it Governor DeWine on July 15, 2024. I anticipate H.B. 179 will be signed into law by Governor DeWine soon.

So, why does H.B. 179 matter in the context of medical malpractice defense? The Bill's introduction of 2307.241 may affect the vicarious liability standard set in Clawson v. Heights Chiropractic Physicians, LLC and Natl. Union Fire Insu. v. Wuerth. Within these cases, the Supreme Court of Ohio held a claim against a healthcare entity fails if the plaintiff does not also bring a claim against a healthcare provider. The logic behind this is that a healthcare entity does not practice medicine; only healthcare providers practice medicine.

However, with regards to medical, dental, optometric, chiropractic, physical therapy, and podiatry claims, H.B. 179 states:

(B) In a tort action alleging respondeat superior or vicarious liability, the following apply:

(1) If liability arises against both a principal and agent, master and servant, employer and employee, or other persons having a vicarious liability relationship, the injured party may sue either the primarily liable agent, servant, employee, or person or the secondarily liable principal, master, employer, or person, or both.

(2) For the injured party to prevail in a tort action alleging respondeat superior or vicarious liability against a secondarily liable principal, master, employer, or other person, both of the following apply:

(a) A primarily liable agent, servant, employee, or person committed the act or omission on which the tort action is based, while in the course of, and within the scope of, that agent's, servant's, employee's, or person's agency or servant relationship with, or employment by, the secondarily liable principal, master, employer, or other person.

(b) A primarily liable agent, servant, employee, or person is not a necessary party to the tort action alleging respondeat superior or vicarious liability against a secondarily liable principal, master, employee, or other person, unless the tort action is any of the following:

(i) An action upon a medical claim against a physician, podiatrist, or physical therapist;

(ii) An action upon a dental claim against a dentist;

(iii) An action upon an optometric claim against an optometrist;

(iv) An action upon a chiropractic claim against a chiropractor[.]

At first, I did not see anything different between this language and the language of Clawson. However, it seems while a plaintiff must name a physician, dentist, optometrist, etc., the plaintiff does not need to name support staff. This includes, among others, RNs, CNPs, CRNAs, PAs, LPNs, dieticians, and aides. Thus, the plaintiff could bring a suit against a healthcare entity for acts of its nursing staff without naming the individual nursing staff.

In my personal experience, defense attorneys have used Clawson to defend against claims where the plaintiff has failed to name any individual provider. Ironically, this tactic has instigated Plaintiff's attorneys to name every single provider within the medical records, whether they allegedly caused the injury or not. Thus, healthcare providers who had minimal or no involvement in a patient's care are being named in lawsuits, which incurs costs for insurance providers and could be reported to the National Practitioner Data Bank.

I see an argument for and against enactment of the statute. On one hand, it is a fact that healthcare providers, whether physicians, dentists, or nurses, practice medicine, not healthcare entities. This is especially true in nursing homes, where a majority of the staff is composed of nurses. Thus, it would be unfair to name the healthcare entity without specific allegations of wrongdoing by the entity's staff. On the other hand, I see a silver lining for defense attorneys as they no longer have to worry about frivolous claims for their insurance clients. If plaintiffs' attorneys no longer need to name everyone in the medical records, then defense attorneys can focus on cases with actual merit.

I look forward to seeing how R.C. 2307.241 will be cited in motions and interpreted by courts in Ohio. If you have thoughts on the potential impact of H.B. 179 and R.C. 2307.241, let me know down in the comments. I'm curious what other attorneys, both defense and plaintiff, think of this Bill.