In a unanimous decision on Dec. 8 authored by Justice Michael Donnelly, Evans v. Akron Gen. Med. Ctr., Slip Opinion No. 2020-Ohio-5535, the Ohio Supreme Court expanded the cause of action for negligent hire, retention and/or supervision to allow for customers (and presumably other third parties) to sue companies even if there is no underlying civil or criminal finding that the employee(s) at issue engaged in wrongdoing. The seven justices rejected the efforts of Akron General Medical Center (AGMC) to block the suit of a patient who alleges that she was abused, assaulted and battered by an emergency room doctor who allegedly touched her sexually in ways unrelated to treatment she was seeking in 2012.
The patient filed a complaint in 2014 in the Summit County Court of Common Pleas alleging that she had been sexually assaulted in 2012 by a treating physician after she had been administered a
narcotic medication. She claimed that the sexual abuse that she had experienced was the direct result of AGMC’s negligent hiring, supervision or retention of the physician. In July of 2016, the trial court granted summary judgment to AGMC based upon the patient’s failure to have filed a cause of action against the physician and her inability to establish his civil liability or guilt of a criminal offense. On appeal, the Ninth District reversed the trial court, reasoning that while plaintiff is required to “prove a wrong recognized as a tort or crime in the State of Ohio within the statute of limitation” to support her negligence claims, there is no requirement that a plaintiff prove that an employee of a defendant has been found by a court to be civilly liable or guilty of a criminal offense regarding the employee’s conduct.
Addressing questions of law that had been
certified for its review and finding that a conflict existed as to decisions to date from appellate courts, the high court addressed the viability of the cause of action. The Court concluded that a plaintiff need not show that an employee has been adjudicated civilly liable or been found guilty of a crime by a court in order for a plaintiff to maintain a negligent hiring, retention or supervision claim against an employer. The Court held that this ruling was consistent with its prior decision in Schelling v. Humphrey, 123 Ohio St. 3d 387 (2009), in which it determined that a doctor’s “lack of amenability to suit does not in and of itself extinguish [a plaintiff’s] negligent-credentialing claim against [a] hospital.” “A negligent hiring, retention or supervision action,” the Court wrote, “is a direct claim against an employer, based upon an employee’s conduct that
the law regards as wrongful that would not have occurred but for the employer’s failure to properly hire, supervise or retain the employee.” The Court emphasized that a negligence claim as to a hospital’s failure to satisfy its independent duty to grant and continue staff privilege only to competent physicians is separate and apart from the legal inquiries relating to civil or criminal claims against physicians themselves. The Court concluded by ruling that the cause of action here was subject to a general two-year statute of limitations for similar tort actions, rather than the lesser limitations periods applicable to possible causes of action against the physician himself.
In this case, local authorities had declined to pursue charges against the doctor, and the patient did not file a battery claim against him within the state’s one-year statute of limitations.
Thus, there was no way that the doctor could be found liable himself for any wrongful or unlawful acts. This decision will no doubt lead to more claims being filed against employers by co-workers, customers, clients and other third parties claiming negligence well after the alleged conduct for which a plaintiff seeks damages occurred, likely causing some parties to litigate the lawfulness of the conduct at issue in a manner typically reserved for criminal proceedings.
Our Labor and Employment practice attorneys are available to assist employers in safeguarding against claims of negligent hire, retention and/or supervision.