Moore v. Mt. Carmel Health Sys., 2020 Ohio 6695

Justin Moore suffered a hypoxic, anoxic brain injury after alleged negligent care and failed endotracheal intubation at Mount Carmel in Jan. 2014; Michael Moore was appointed conservator and sued on Justin’s behalf.
Plaintiff sued Mount Carmel, Central Ohio Anesthesia, Inc. (COA), and Dr. Eric Humphreys; Dr. Humphreys was not served within Civ.R. 3(A)’s one‑year commencement period.
Trial court granted summary judgment dismissing claims against Dr. Humphreys and, because no direct liability remained against him, dismissed COA and Mount Carmel on vicarious‑liability grounds and statute‑of‑limitations reasoning.
The Tenth District initially reversed under Ohio’s savings statute (R.C. 2305.19), but the Ohio Supreme Court reversed that holding and remanded, directing the appellate court to decide Moore’s third assignment of error about respondeat superior liability of COA.
On remand the Tenth District considered whether Wuerth (law‑firm malpractice rule), Sawicki, Dinges and related authority control, and whether Dr. Humphreys was a traditional employee or a shareholder/owner of COA.
The court held Wuerth governs here (a corporation cannot be vicariously liable when the individual wrongdoer has no direct liability), found Humphreys was a part‑owner/shareholder (not a traditional employee), and affirmed summary judgment for COA.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an employer (COA) can be vicariously liable where the allegedly negligent physician was not timely served and thus has no direct liability	Moore: Sawicki and related authority permit vicarious liability even when the employee is immune or procedurally dismissed; respondeat superior imputes the negligent act, not the employee’s civil liability	COA: Under Wuerth, a corporation cannot be held vicariously liable for malpractice unless the individual actor is directly liable; absence of direct liability for Humphreys bars COA’s liability	Court applied Wuerth; held COA cannot be vicariously liable because Dr. Humphreys has no direct liability due to the limitations/service issue
Whether Dr. Humphreys was a "traditional employee" (Dinges test) such that COA could still face respondeat superior liability	Moore: Humphreys testified he was "employed" by COA and shareholders can also be employees; this raises a genuine issue of fact	COA: Evidence (affidavits, distribution/draw structure) shows Humphreys was a shareholder/part‑owner who received draws and profit distributions, not a salaried traditional employee	Court found Humphreys was a part‑owner/shareholder, not a traditional employee; no genuine issue of material fact and summary judgment for COA affirmed

Natl. Union Fire Ins. Co. of Pittsburgh, Pa. v. Wuerth, 122 Ohio St.3d 594, 913 N.E.2d 939 (Ohio 2009) (a law firm cannot be held directly liable for malpractice absent direct liability of an identifiable lawyer)
State ex rel. Sawicki v. Lucas Cty. Court of Common Pleas, 126 Ohio St.3d 198, 931 N.E.2d 1082 (Ohio 2010) (employer may remain liable under respondeat superior even if employee has immunity; immunity does not negate the imputed wrongful act)
Dinges v. St. Luke's Hosp., 971 N.E.2d 1045 (Ohio Ct. App. 2012) (distinguishes partner/owner status from traditional employee; material fact may exist whether doctors are employees or owners)
Tisdale v. Toledo Hosp., 967 N.E.2d 280 (Ohio Ct. App. 2012) (Wuerth is narrow and may be sui generis; relationship classification matters for vicarious liability)
Verrastro v. Bayhospitalists, LLC, 208 A.3d 720 (Del. 2019) (declining to extend procedural time‑bar dismissal of physician into a shield for employer; examines respondeat superior and Restatement provisions)