[Cite as Jaffe v. Cleveland Clinic Found., 2021-Ohio-3345.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
MICHAEL JAFFE, :
Plaintiff-Appellant, :
No. 110164
v. :
CLEVELAND CLINIC FOUNDATION, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: September 23, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-19-913718
Appearances:
DiCello Levitt Gutzler L.L.C., Kenneth P. Abbarno, and
Mark M. Abramowitz, for appellant.
Reminger Co., L.P.A., William A. Meadows, and Brian D.
Sullivan, for appellee.
MARY J. BOYLE, A.J.:
Plaintiff-appellant, Dr. Michael Jaffe, as executor of the estate of
Marcia Jaffe, appeals the trial court’s order granting partial summary judgment in
favor of defendant-appellee, Cleveland Clinic Foundation (“CCF”). Dr. Jaffe raises
one assignment of error for our review:
The trial court erred in granting partial summary judgment and by
holding that defendant the Cleveland Clinic Foundation cannot be held
vicariously liable for the medical malpractice of its employee physicians
without those physicians being named in the complaint.
After reviewing the parties’ arguments regarding our jurisdiction over
this appeal, we find that the trial court’s judgment was not a final, appealable order.
We therefore dismiss this appeal for lack of appellate jurisdiction.
I. Procedural History and Factual Background
In June 2017, Dr. Jaffe filed a wrongful death action against CCF, and
he voluntarily dismissed his complaint without prejudice in April 2018. In April
2019, Dr. Jaffe refiled his complaint against CCF. He claimed that CCF’s “agents,
servants and employees” rendered Marcia Jaffe substandard care and improper
treatment during preoperative care, surgery, and postoperative care from June 18
to July 2, 2015. The complaint states that Marcia Jaffe “suffered catastrophic
injuries [and] died as a result of her injuries on July 2, 2015.” The complaint asserts
one count of negligence against CCF.
In April 2020, CCF filed a motion for partial summary judgment.
CCF argued that Dr. Jaffe did not bring claims against any individual physicians,
and without individual liability, CCF cannot be vicariously liable for the physicians’
actions as a matter of law pursuant to Natl. Union Fire Ins. Co. v. Wuerth, 122 Ohio
St.3d 595, 2009-Ohio-3601, 913 N.E.2d 939. CCF maintained that Dr. Jaffe was
time barred from asserting new claims against individual physicians, no physicians
could therefore be held liable, and no liability could be imputed to CCF. Dr. Jaffe
filed an opposition, arguing that Wuerth does not apply in this case. CCF filed a
reply.
In November 2020, the trial court granted CCF’s motion for partial
summary judgment and certified it for immediate appeal pursuant to Civ.R. 54(B).
The trial court explained its decision:
This ruling is made in accordance with the Ohio Supreme Court ruling
in [Wuerth], which states that “in the medial [sic] context [the Ohio
Supreme Court has] recognized that because only individuals practice
medicine, only individuals can commit medical malpractice.” Wuerth
[at] ¶ 14. Accordingly, the Cleveland Clinic Foundation cannot be held
liable for medical malpractice, nor can it be held vicariously liable for
the medical malpractice of it’s [sic] physicians without those physicians
being named in the lawsuit, as well. As plaintiff is time-barred from
bringing claims against individual physicians for medical malpractice,
the claim of vicarious liability against defendant Cleveland Clinic
Foundation arising out of the negligent conduct of unnamed Cleveland
Clinic Foundation physicians must fail.
Accordingly, defendant’s partial motion for summary judgment is
hereby granted. The court finds that there is no just reason for delay.
This order is final and appealable pursuant to Civ.R. 54.
Dr. Jaffe timely appealed this judgment. In April 2021, this court sua
sponte ordered the parties to submit supplemental briefs addressing whether the
trial court’s judgment is a final, appealable order. Both parties filed supplemental
briefs maintaining that the judgment is a final, appealable order.
II. Final Order
Both parties argue that the trial court’s judgment is a final, appealable
order but for different reasons. CCF contends that the trial court’s judgment is final
because it “resolve[d] all claims between the parties.” It maintains that only
physicians practice medicine, and since the trial court’s order determined that CCF
cannot be liable for the alleged negligence of its physicians, the order “resolves
plaintiff’s sole claim and terminated the action.” CCF contends that to the extent
Dr. Jaffe argues that additional issues remain to be litigated related to CCF’s liability
for its nonphysician employees, Dr. Jaffe “should be estopped” from raising such
argument. CCF maintains that by appealing the trial court’s order, Dr. Jaffe has
admitted that the order resolved his only claim against CCF and has abandoned his
theory that CCF is vicariously liable for the conduct of its nonphysician employees.
Dr. Jaffe contends that he did not abandon his theory that CCF is
vicariously liable for the conduct of its nonphysician employees. He argues that his
claim for negligence against CCF encompasses two issues: (1) CCF’s liability for the
actions of its physicians, and (2) CCF’s liability for the actions of its nonphysician
employees. Dr. Jaffe contends that the trial court’s order resolves the issue of CCF’s
liability for its physicians but not the issue of CCF’s liability for its nonphysician
employees. He maintains that in this medical negligence case, the physicians and
the nonphysician employees will “point to the conduct” of each other as the source
of liability. He argues that, therefore, an immediate appeal of the trial court’s order
serves judicial economy to avoid two separate trials with an “empty chair.”
The jurisdiction of a court of appeals is constitutionally limited to the
review of “final” orders. See Article IV, Section 3(B)(2), Ohio Constitution.
R.C. 2505.02(B). To be a final, appealable order, the order must meet the
requirements of both R.C. 2505.02 and, if applicable, Civ.R. 54(B). Madfan, Inc. v.
Makris, 8th Dist. Cuyahoga No. 102179, 2015-Ohio-1316, ¶ 6, citing Chef Italiano
Corp. v. Kent State Univ., 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989).
Under R.C. 2505.02(B)(1), an order is final if it “affects a substantial
right in an action that in effect determines the action and prevents a judgment.” To
determine the action and prevent a judgment, the order “‘must dispose of the whole
merits of the cause or some separate and distinct branch thereof and leave nothing
for the determination of the court.’” Madfan at ¶ 6, quoting Hamilton Cty. Bd. of
Mental Retardation & Dev. Disabilities v. Professionals Guild of Ohio, 46 Ohio
St.3d 147, 153, 545 N.E.2d 1260 (1989).
Even if the trial court’s order affected a substantial right in the action,
it did not in effect determine the action and prevent a judgment because it did not
dispose of the “whole merits” of Dr. Jaffe’s claim leaving nothing for the
determination of the court. We disagree with CCF’s argument that the trial court’s
order “resolves plaintiff’s sole claim and terminated the action.” Dr. Jaffe’s
complaint alleged that CCF’s “agents, servants and employees” were negligent.
Dr. Jaffe submitted expert reports to show that both the physicians and
nonphysician employees were negligent, and CCF attached these reports as exhibits
to its motion for partial summary judgment. CCF moved for only partial summary
judgment on the issue of whether it could be liable for the conduct of its physicians
— not also for the conduct of its nonphysician employees. In the trial court’s order
granting the motion for partial summary judgment, the trial court found that CCF
could not be liable for the physicians’ conduct, but the issue of whether CCF is liable
for the conduct of its nonphysician employees remains pending.
Furthermore, the trial court’s order resolving CCF’s liability for its
physicians does not automatically resolve the issue of CCF’s liability for its
nonphysician employees. Ohio law treats claims for medical negligence differently
depending on if the claim is against physicians or nonphysician employees. See
Lombard v. Good Samaritan Med. Ctr., 69 Ohio St.2d 471, 433 N.E.2d 162 (1982)
(explaining that only physicians and attorneys can commit malpractice under
R.C. 2305.11(A), and the negligence of nurses instead falls under the definition of
“medical claim” in R.C. 2305.113(A)); see also Cobbin v. Cleveland Clinic Found.,
2019-Ohio-3659, 143 N.E.3d 1155, ¶ 30 (8th Dist.) (“[H]ospitals can be vicariously
liable for the negligence of its nurses even if the nurses are not named in a plaintiff’s
complaint[.]”). The trial court has yet to resolve whether CCF is liable for the alleged
negligence of CCF’s nonphysician employees.
We also disagree with CCF’s argument that by pursuing this appeal,
Dr. Jaffe admitted that the trial court’s order resolved his entire claim and that he
abandoned his theory that CCF is liable for the conduct of its nonphysician
employees. CCF cites to no law to support this argument. The trial court’s judgment
granting partial summary judgment was an interlocutory order that the trial court
intended to be immediately appealable pursuant to Civ.R. 54(B). Dr. Jaffe’s
decision to appeal from the interlocutory order does not mean that he conceded that
the order terminated the action or that he waived any arguments.
Dr. Jaffe’s argument that the judgment is immediately appealable
because an immediate appeal best serves judicial economy also lacks merit because
the trial court’s judgment granting partial summary judgment did not fully resolve
Dr. Jaffe’s claim. A ruling that adjudicates only part of a claim is not a final,
appealable order. Hitchings v. Weese, 77 Ohio St.3d 390, 391, 674 N.E.2d 688
(1997) (The trial court’s order was not final and appealable because it “adjudicated
only part of the claim; it did not resolve the entire claim.”).
This case is similar to NAACP v. Riedel, 2d Dist. Clark No. 2003-CA-
7, 2003-Ohio-6070, in which the trial court granted a motion for partial summary
judgment on a claim for negligence based on a theory of vicarious liability. The
defendant moved for summary judgment on part of the count, arguing that any
negligence occurring before a certain date was barred by the statute of limitations.
Id. at ¶ 4. The trial court granted the motion and included the “no just reason for
delay” language pursuant to Civ.R. 54(B). Id. The Second District held that the
judgment was not a final, appealable order despite the Civ.R. 54(B) language. Id. at
¶ 8. The court explained that the summary judgment ruling was regarding only
negligence that occurred before a certain date, but the claim “remained viable as to
any respondeat superior negligence occurring after that date. In effect, the trial
court’s ruling narrowed the scope of count four but did not constitute the entry of
final judgment on that count.” Id. at ¶ 6. The court therefore found that Civ.R. 54(B)
did not apply and that it lacked jurisdiction over the appeal. Id. at ¶ 7.
Although Dr. Jaffe’s claim against CCF is based on two theories of
liability — vicarious liability for the physicians and vicarious liability for the
nonphysician employees — both theories are part of a single claim for negligence.
The trial court’s judgment resolved only part of the claim, but it did not resolve the
issue of CCF’s vicarious liability for its nonphysician employees. Like in Riedel, the
trial court’s judgment here limited Dr. Jaffe’s claim but did not fully resolve it.
Despite the “no just reason for delay” language, Civ.R. 54(B) does not
apply here. It is well established that a trial court’s finding of “no just reason for
delay” cannot “transform an order that was not final for purposes of R.C. 2505.02
into a final appealable order for Civ.R. 54(B) purposes.” Hitchings, 77 Ohio St.3d at
391, 674 N.E.2d 688. Furthermore, Civ.R. 54(B) applies only in cases with “more
than one claim for relief” or “when multiple parties are involved.” But Dr. Jaffe
asserted only one claim against a single party. Accordingly, Civ.R. 54(B) cannot
apply even if the trial court wanted it to and even if an immediate appeal would serve
the interests of judicial economy.
Because the trial court’s judgment is not a final order that can be
appealed at this time, we have no jurisdiction over this appeal. We therefore cannot
reach the merits of Dr. Jaffe’s arguments about whether CCF can be liable for the
negligence of its employee physicians when Dr. Jaffe brought no claims against the
physicians directly.
Appeal dismissed.
It is ordered that appellee recover from appellant the costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY J. BOYLE, ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., J., and
EILEEN T. GALLAGHER, J., CONCUR