On July 09, 2018 a
Motion,Ex Parte
was filed
involving a dispute between
and
for PROFESSIONAL TORT
in the District Court of Franklin County.
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 12 10:51 AM-18CV005809
0G580 - U9
IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO
CIVIL DIVISION
Deborah D. Mitchell,
Plaintiff, Case No. 18CV-5809
v
OrthoNeuro, Registered Trade, Judge Serrott
Name of Orthopedic &
Neurological Surgeons, LLC, et al.,
Defendants.
JUDGMENT ORDER AND ENTRY
This matter is before the Court on New Albany Surgery Center and New Albany Surgery
Center, LLC’s (collectively “New Albany”) motion to reconsider the Court’s decision denying
the Defendants’ motion for summary judgment. This Court’s decision was rendered prior to the
parties raising the issue of the Supreme Court’s decision in Clawson v. Heights Chiropractic
Physicians, LLC (2022) 170 Ohio St.3D 451. In Clawson, the Court determined that a medical
provider could not be held liable for a medical claim/malpractice claim unless the
employee/doctor was liable. Thus, the Court ruled an employer could not be liable unless the
employee was liable pursuant to the doctrine of respondent superior. Id. Paragraphs 26, 29, and
32.
The Defendants herein argue the Clawson case controls the issue herein and forms the
basis for the motion for reconsideration. The matter is briefed and ready for decision. In the
case at bar, the Plaintiff did not name as defendants nurses employed by “New Albany.” The
Plaintiff’ s claims against “New Albany” whether labeled as malpractice or as medical claims are
against nurses employed by “New Albany.” “New Albany is only liable as an entity under a
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 12 10:51 AM-18CV005809
0G580 - U9
respondent superior or agency theory. The Clawson case in broad terms outlines why employers
are only liable through its employees. A law firm and a medical entity cannot be held liable
except through the acts of employees!. In Clawson, the Court rendered the conclusion broadly
applying general agency principles. Id. Paragraphs 26. 29, and 32. Nothing in the opinion limits
the case to doctors and lawyers.
Therefore, in applying C/awson to the case at bar, the statute as it relates to the nurses
employed by “New Albany.” The nurses were not named as individual defendants. Therefore,
because the nurses cannot now be held liable, the Defendants “New Albany” cannot be held
liable under an agency or respondent superior. The Clawson case controls the issue and this
Court is bound to follow it. While this Court might agree with the three (3) dissents in Clawson,
it is bound by the decision of the majority of the Court.
As the Court previously stated, “Civ. R. 56(C) provides that before summary judgment may
be granted, it must be determined that
(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 nonmoving party, that conclusion is
adverse to the party against whom the motion for summary judgment is made.”
Davis v. Loopco Industries, Inc., 66 Ohio St. 3d 64, 65-66, 609 N.E.2d 144, 145 (internal citations
omitted). “Because summary judgment is a procedural device to terminate litigation, it must be
awarded with caution.” Jd. “Doubts must be resolved in favor of the nonmoving party.” /d.
[P]leadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of
1 Legal entities could be liable for the entity’s direct negligence such as negligent hiring or for corporate
policy decisions.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 12 10:51 AM-18CV005809
0G580 - U9
evidence, and written stipulations of fact” may be relied upon in determining the appropriateness of
summary judgment. See Civ. R. 56 (C).
Given the Ohio Supreme Court’s recent ruling, this Court, in applying the law to the facts,
holds that no reasonable mind could come to a differing conclusion: New Albany is entitled to
Summary Judgment as a matter of law.
For all these reasons, the Court GRANTS the motion for reconsideration and ORDERS
“New Albany” dismissed from the case.
IT IS SO ORDERED.
Electronically Signed By:
JUDGE MARK A. SERROTT
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 12 10:51 AM-18CV005809
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Franklin County Court of Common Pleas
Date: 10-12-2023
Case Title: DEBORAH D MITCHELL ET AL -VS- ORTHONEURO ET AL
Case Number: 18CV005809
Type: ORDER
It Is So Ordered.
Yuh. Ce faew*
/s/ Judge Mark A. Serrott
Electronically signed on 2023-Oct-12 page 4 of 4
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 12 10:51 AM-18CV005809
0G580 - U9
Court Disposition
Case Number: 18CV005809
Case Style: DEBORAH D MITCHELL ET AL -VS- ORTHONEURO
ETA
Motion Tie Off Information:
1. Motion CMS Document Id: 18CV0058092023-01-1799980000
Document Title: 01-17-2023-MOTION TO RECONSIDER -
DEFENDANT: NEW ALBANY SURGERY CENTER
Disposition: MOTION GRANTED
2. Motion CMS Document Id: 18CV0058092023-08- 1499980000
Document Title: 08-14-2023-MOTION FOR CONTINUANCE -
PLAINTIFF: DEBORAH D. MITCHELL
Disposition: MOTION IS MOOT
Document Filed Date
October 12, 2023
Case Filing Date
July 09, 2018
Category
PROFESSIONAL TORT
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Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 12 10:51 AM-18CV005809 0G580 - U9 IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO CIVIL DIVISION Deborah D. Mitchell, Plaintiff, Case No. 18CV-5809 v OrthoNeuro, Registered Trade, Judge Serrott Name of Orthopedic & Neurological Surgeons, LLC, et al., Defendants. JUDGMENT ORDER AND ENTRY This matter is before the Court on New Albany Surgery Center and New Albany Surgery Center, LLC’s (collectively “New Albany”) motion to reconsider the Court’s decision denying the Defendants’ motion for summary judgment. This Court’s decision was rendered prior to the parties raising the issue of the Supreme Court’s decision in Clawson v. Heights Chiropractic Physicians, LLC (2022) 170 Ohio St.3D 451. In Clawson, the Court determined that a medical provider could not be held liable for a medical claim/malpractice claim unless the employee/doctor was liable. Thus, the Court ruled an employer could not be liable unless the employee was liable pursuant to the doctrine of respondent superior. Id. Paragraphs 26, 29, and 32. The Defendants herein argue the Clawson case controls the issue herein and forms the basis for the motion for reconsideration. The matter is briefed and ready for decision. In the case at bar, the Plaintiff did not name as defendants nurses employed by “New Albany.” The Plaintiff’ s claims against “New Albany” whether labeled as malpractice or as medical claims are against nurses employed by “New Albany.” “New Albany is only liable as an entity under a Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 12 10:51 AM-18CV005809 0G580 - U9 respondent superior or agency theory. The Clawson case in broad terms outlines why employers are only liable through its employees. A law firm and a medical entity cannot be held liable except through the acts of employees!. In Clawson, the Court rendered the conclusion broadly applying general agency principles. Id. Paragraphs 26. 29, and 32. Nothing in the opinion limits the case to doctors and lawyers. Therefore, in applying C/awson to the case at bar, the statute as it relates to the nurses employed by “New Albany.” The nurses were not named as individual defendants. Therefore, because the nurses cannot now be held liable, the Defendants “New Albany” cannot be held liable under an agency or respondent superior. The Clawson case controls the issue and this Court is bound to follow it. While this Court might agree with the three (3) dissents in Clawson, it is bound by the decision of the majority of the Court. As the Court previously stated, “Civ. R. 56(C) provides that before summary judgment may be granted, it must be determined that (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 nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made.” Davis v. Loopco Industries, Inc., 66 Ohio St. 3d 64, 65-66, 609 N.E.2d 144, 145 (internal citations omitted). “Because summary judgment is a procedural device to terminate litigation, it must be awarded with caution.” Jd. “Doubts must be resolved in favor of the nonmoving party.” /d. [P]leadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of 1 Legal entities could be liable for the entity’s direct negligence such as negligent hiring or for corporate policy decisions. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 12 10:51 AM-18CV005809 0G580 - U9 evidence, and written stipulations of fact” may be relied upon in determining the appropriateness of summary judgment. See Civ. R. 56 (C). Given the Ohio Supreme Court’s recent ruling, this Court, in applying the law to the facts, holds that no reasonable mind could come to a differing conclusion: New Albany is entitled to Summary Judgment as a matter of law. For all these reasons, the Court GRANTS the motion for reconsideration and ORDERS “New Albany” dismissed from the case. IT IS SO ORDERED. Electronically Signed By: JUDGE MARK A. SERROTT Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 12 10:51 AM-18CV005809 0G580 - U9 Franklin County Court of Common Pleas Date: 10-12-2023 Case Title: DEBORAH D MITCHELL ET AL -VS- ORTHONEURO ET AL Case Number: 18CV005809 Type: ORDER It Is So Ordered. Yuh. Ce faew* /s/ Judge Mark A. Serrott Electronically signed on 2023-Oct-12 page 4 of 4 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 12 10:51 AM-18CV005809 0G580 - U9 Court Disposition Case Number: 18CV005809 Case Style: DEBORAH D MITCHELL ET AL -VS- ORTHONEURO ETA Motion Tie Off Information: 1. Motion CMS Document Id: 18CV0058092023-01-1799980000 Document Title: 01-17-2023-MOTION TO RECONSIDER - DEFENDANT: NEW ALBANY SURGERY CENTER Disposition: MOTION GRANTED 2. Motion CMS Document Id: 18CV0058092023-08- 1499980000 Document Title: 08-14-2023-MOTION FOR CONTINUANCE - PLAINTIFF: DEBORAH D. MITCHELL Disposition: MOTION IS MOOT