Burned During an MRI at Miami Valley Hospital: Appeals Court Revives the Lawsuit

Published October 27, 2011 · Ohio Appeals Courts

An MRI is supposed to be one of the safest things that happens to you in a hospital. No incision, no radiation, no drugs beyond whatever is needed to keep you still. So when a Dayton woman woke from a sedated MRI at Miami Valley Hospital in December 2007 with a large blister on her arm that turned out to be a third-degree burn, leaving a permanent scar, she did what any patient would do. She asked who was responsible.

The hospital's answer, in court, was that no one could be. Not because the burn did not happen, but because of a technicality about who had been named as a defendant. Last month the Second District Court of Appeals rejected that answer in Cope v. Miami Valley Hosp., 195 Ohio App.3d 513, 2011-Ohio-4869, and sent the case back for trial. The decision matters to every patient treated by a hospital's nurses, technicians, and staff.

The hospital's argument

Eva Cope and her husband sued the hospital, the anesthesia group and its two providers, a radiology practice and its physician, and one hospital employee. As the case developed they voluntarily dismissed several defendants, including the one hospital employee they had named. The MRI technicians who actually ran the machine were never individually named; the complaint referred to them as unidentified.

Miami Valley Hospital then moved for summary judgment. Its argument relied on a 2009 Supreme Court decision, Natl. Union Fire Ins. Co. v. Wuerth, which held that a law firm cannot be liable for legal malpractice unless one of its lawyers is first found liable, because only individuals, not firms, commit malpractice. The hospital said the same logic applied to it: hospitals do not practice medicine, only individuals commit medical malpractice, the only named hospital employee had been dismissed, and the one-year deadline for naming anyone else had passed. Therefore, it argued, the claim against the hospital had to be dismissed too.

The trial court agreed and threw the hospital out of the case.

What the appeals court held

The Second District reversed. Its reasoning turned on a distinction that sounds technical but has real consequences for patients.

Under Ohio law, "malpractice" in the strict sense is limited to the professional negligence of physicians and attorneys. The negligence of a nurse, a technician, or other hospital staff is not "malpractice" in that narrow sense; it is a "medical claim" under R.C. 2305.113, the statute that sets the one-year deadline for such claims and defines them to include claims against a hospital and its employees or agents. The court held that Wuerth applies only to the narrow category of true malpractice, and that a claim against a hospital for the negligence of its non-physician employees is governed instead by the ordinary rule of respondeat superior, the doctrine that makes an employer responsible for what its employees do on the job.

Under that rule, a patient may sue the employer, the employee, or both. The court found nothing in Wuerth that changes this for hospitals. As it put it, "There is no reason to treat a medical technician differently from a nurse."

The court was also candid about the policy behind its ruling. It wrote that "A hospital should be responsible for the negligence of its employees who perform medical services and act in the scope of their employment." Reading Wuerth the way the hospital proposed, the court said, would let the exception swallow the rule.

Because the Copes filed their suit within the one-year period for medical claims, and because the suit alleged negligence by the hospital's MRI technicians, the hospital could be held liable for that negligence whether or not the technicians were ever named.

Agency by estoppel: the second theory

The court also revived a second theory against the hospital. Even where the people who treat you are not hospital employees, Ohio recognizes "agency by estoppel": a hospital that holds itself out to the public as a provider of medical services can be liable for the negligence of independent practitioners working there, if the patient looked to the hospital, rather than to a particular individual, to provide the care. That test comes from a 1994 Ohio Supreme Court decision involving a Dayton hospital.

The anesthesia providers in Mrs. Cope's case were employed by an outside group. The hospital argued she could not have relied on the hospital because her own physician ordered the MRI. The appeals court found the record did not establish whether her physician chose the hospital, chose the anesthesia providers, or had anything to do with either, and that the hospital had attached only part of the relevant deposition. With those questions open, summary judgment was improper on that theory as well. Who was at fault for the burn is for a jury; what the court decided is that the hospital stays in the case.

Why this decision matters to patients

A hospital stay involves dozens of people: nurses, aides, technicians, transport staff, pharmacy staff. Most of them are hospital employees. Most patients never learn their full names. If a hospital could escape liability for its employees' negligence simply because the patient did not identify each one by name within a year, injured patients would routinely lose the ability to recover, not because no one was careless but because the hospital's own records were the only place the names could be found. Cope closes that door in this district.

It also reinforces a point we have made before. In January we wrote about the Supreme Court opening the door to discovery about an infected surgeon, and in April about the court recognizing that a missed cancer diagnosis is a real injury. The theme across all three decisions is that medical defendants will raise every procedural shield available, and that the courts, at least this year, are declining to let those shields defeat legitimate claims.

What a case like this requires

Hospital-negligence claims are among the most demanding cases in personal injury practice, and this one illustrates why:

• The one-year deadline is short. R.C. 2305.113 gives one year from the time the claim accrues. There is a mechanism to extend it by sending a written notice before the year ends, but the clock is unforgiving.
• Expert support is required. A medical claim must be supported by a qualified expert's opinion that the standard of care was breached and that the breach caused the injury. A jury awarded nearly $1 million in a spinal surgery case we discussed last year on exactly that kind of proof.
• Who employs whom matters. Hospitals contract out anesthesia, radiology, emergency medicine, and more. Identifying each provider's employer, early, determines which theories apply and who must be named.
• Records must be obtained quickly and completely. The names of the technicians in Mrs. Cope's MRI suite were in the hospital's records, not hers.

What this means for you

If you were injured by something that went wrong during a hospital procedure, a scan, an infusion, or nursing care, the hospital may be responsible even if you never learned the name of the person who made the mistake. Do not accept an explanation that "no one was at fault" without an independent review of the records. And because the deadline for medical claims is one year, that review needs to start as soon as you suspect something went wrong.