Holding the Hospital Accountable: Negligent Hiring and Supervision Claims After Evans v. Akron General

Published December 17, 2020 · Ohio Supreme Court

When someone is abused by a doctor, a nurse's aide, a security guard, or a caregiver, the person who did it is only part of the story. Someone hired that employee, kept him on the job, and was responsible for supervising him. Very often, that institution is the party with the insurance, the records, and the ability to pay.

On December 8, the Supreme Court of Ohio decided a case that makes it clearer that injured people can hold that institution directly responsible. In Evans v. Akron Gen. Med. Ctr., Slip Opinion No. 2020-Ohio-5535, a unanimous Court held that a patient may pursue a negligent hiring, retention, or supervision claim against a hospital even though the employee was never sued, never found civilly liable, and never convicted of a crime.

What the patient alleged

The facts, as the Court described the patient's claims, are painful. She went to the emergency room at Akron General Medical Center in November 2012. She alleged that staff gave her a narcotic medication and that a physician employed by the hospital then sexually assaulted her through nonconsensual touching unrelated to the injuries she came in for.

She did not sue the doctor. Instead, exactly two years after the visit, she sued the hospital, claiming that the abuse was the direct result of the hospital's negligence in hiring, supervising, or retaining him. A criminal investigation was closed without charges.

The trial court threw out her case. It reasoned that because she had not sued the doctor within the one-year period for battery claims, and because he had never been convicted, she could not prove the "underlying" wrong that a negligent-supervision claim requires. The Ninth District Court of Appeals reversed, and the Supreme Court agreed with the court of appeals.

What the Court decided

The hospital relied on a 1988 decision, Strock v. Pressnell, which said that negligent supervision claims require that the employee be "individually liable for a tort or guilty of a claimed wrong." The Court explained that Strock involved conduct that, however wrong morally, was not legally wrongful at all. That is very different from alleged sexual abuse of a patient.

The Court's holding is direct: a plaintiff "need not show that an employee has been adjudicated civilly liable or found guilty of a crime" to maintain a negligent hiring, retention, or supervision claim against the employer. What the plaintiff must show is that the employee committed a wrong recognized as a tort or crime in Ohio, not that a court has already said so in a separate proceeding. Whether the employee can still be held accountable is a separate question from whether his conduct was legally wrongful.

The Court also addressed the deadline. It held that the claim against the employer is a direct claim against the employer, so its limitations period does not shift based on the deadline for the employee's underlying conduct. Here, where the parties had not disputed the point, the Court applied the two-year bodily-injury period in R.C. 2305.10(A), and the patient's suit, filed on the second anniversary of the visit, was timely, "just barely," as the Court put it. The case was sent back to the trial court to proceed.

Why this decision matters

The institution can be responsible even when the individual cannot. Abusers flee, die, have no assets, or are never charged. The time to sue them individually may have run; Ohio's deadline for assault and battery claims is only one year under R.C. 2305.111(B). After Evans, none of that, by itself, ends a claim against the employer whose negligence made the harm possible.

It focuses on what the employer knew and did. A negligent hiring, supervision, or retention claim asks whether the employer knew or should have known that an employee was dangerous or unfit, and whether it failed to act. That evidence lives in personnel files, prior complaints, credentialing records, and supervision policies. The institution has it, and it is discoverable.

It fits with this summer's decision on crime victims. In July, in Buddenberg v. Weisdack, the Supreme Court held that a person injured by a criminal act can recover civil damages without a conviction. I discussed that case in our August post. Read together, the two decisions confirm that a prosecutor's decision not to charge, or a criminal case that never happens, does not close the courthouse door to the victim.

Where these claims come up

Negligent hiring, retention, and supervision claims are not limited to hospitals. They arise when:

• A nursing-home aide abuses or neglects a resident, and the facility ignored warning signs or failed to check the aide's background. Our post on nursing-home falls and understaffing discusses how staffing and supervision records are used.
• A bar bouncer or security guard assaults a customer, and the employer knew of earlier violent incidents.
• A delivery or service worker with a known history harms someone in their home.
• A coach, counselor, or youth worker abuses a child, and the organization ignored complaints.

A caution about deadlines

Evans is good news, but it is not an invitation to wait. The patient in Evans filed on the last possible day of the two-year period the Court applied. Claims arising out of medical care can raise the argument that Ohio's much shorter one-year medical-claim deadline applies instead, and the definition of a "medical claim" in R.C. 2305.113 expressly reaches some claims about the hiring, supervision, and retention of caregivers. The Court in Evans did not decide that issue, because the parties never disputed it. Other claims, such as those against a government employer, carry their own rules. Our guide chapter on deadlines and the timeline of an Ohio injury case explains the most common ones, but the only safe approach is to have a lawyer review the deadline at the start.

What this means for you

• You can sue an employer for negligent hiring, supervision, or retention even if the employee was never sued, never charged, or never convicted.
• You must still prove the employee did something legally wrongful and that the employer's negligence made it possible.
• The employer's records about what it knew are often the key evidence.
• Deadlines can be short and may be disputed, especially in medical settings, so get advice early.