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Legal Malpractice Decision May Create Problems for Plaintiff Medical Malpractice Claimants
Post on November 1st, 2009

The Ohio Supreme Court recently determined that a legal malpractice claim must be filed against the lawyers individually who committed the malpractice. Filing suit against a law firm, without naming the lawyers for which the firm may be vicariously liable, was not adequate, Nat. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, et al., 2009-Ohio-3601 (decided July 31, 2009).

We understand that some hospitals are now using Wuerth to argue that since the hospital or medical facility is only vicariously liable for the acts or omissions of its staff, failure to have timely sued the hospital staff involved in treatment therefore bars any claim against the hospital or medical facility. At least for new claims not yet filed, it may be possible for the hospital or medical facility to agree that it accepts liability, thus relieving the claimant from filing suit naming every person, including technical staff and nurses, who appear on the treatment – medical charts of the facility who may have given treatment to the claimant. The other alternative is to name numerous Doe defendants when filing a complaint, and then bring in the responsible persons, if any, but this procedure may not be acceptable if the name of the staff appears in the medical records for the claimant, and the statute of limitations was not preserved against such staff persons. A case now accepted for review by the Supreme Court demonstrates this potential problem.

In Erwin, Admin. of the Estate of Erwin v. Bryan, M.D., et al., 2009-Ohio-758 (5th Dist.) the

plaintiff named Doe defendants when the complaint was filed. Later in time, the primary defendant, Dr. Bryan, claimed that another doctor involved in the treatment of the deceased, Dr. Swoger, had responsibility for the medical condition ultimately leading to the death of Mr. Erwin. The complaint was amended pursuant to Civil Rule 15, and Dr. Swoger brought into the case. In a 2-1 decision, the Court of Appeals for Tuscarawas County held that the discovery of the alleged malpractice of Dr. Swoger did not occur until he was implicated during discovery in the case. Therefore, the amended complaint was timely filed. However, the dissenting judge noted that Dr. Swoger’s name was in the medical records, was known prior to the time he was brought into the case, and therefore, the statute of limitations has run regarding any claim now filed. Again, this case has been accepted for review by the Ohio Supreme Court, so relying on the appellate case as precedent is subject to question at this point in time.

One other note area regarding plaintiffs’ medical malpractice claims is continued concern with actual service of a “180-day letter” on potential defendants. In Edens v. Barberton Area Family Practice Ctr. (1989), 43 O.S.3d 176, the Supreme Court held that a 180-day letter extending the statute of limitations for medical malpractice claims was effective upon receipt by the intended recipient. If service is attempted by certified mail, for example, and a signature is obtained that is not that of the intended recipient, it is possible that the defendant will contend that they were not provided the letter timely, and that the person signing the receipt was not authorized to do so. Fulton v. Firelands Community Hosp., 2006-Ohio-111, (6th Dist.). Therefore, it is good practice to serve in a

manner that is likely to provide for actual receipt by potential defendant.