A patient allegedly assaulted by a doctor while sedated does not have to prove the doctor is guilty of a crime or civilly liable before suing the hospital for lack of oversight, the Ohio Supreme Court ruled today.

In a unanimous opinion, the Supreme Court ruled that Malieka Evans can continue her lawsuit against Akron General Medical Center for the negligent hiring, retention, or supervision of the doctor who allegedly assaulted her in 2012.

The decision reversed a Summit County Common Pleas Court ruling, which found because police had not pressed charges against the physician and Evans did not file a personal injury lawsuit against him, she could not sue the hospital.

Writing for the Court, Justice Michael P. Donnelly explained that the ability to sue an employer for an employee’s wrongdoing is not based on whether the employee has been or can be held legally accountable, but rather whether that the employee must be “shown to have committed an act that is legally wrong.”

The Court remanded the case to the common pleas court for further proceedings. 

The decision affirmed the Ninth District Court of Appeals’ decision to overrule the trial court. The decision also resolved a split among Ohio courts as to whether an employee must be convicted or held legally responsible before an employer could be sued.

Patient Claimed Abuse in Emergency Room
Evans asserted that in November 2012 she was administered narcotic medication by Akron General’s medical staff while in the emergency room. She claimed Dr. Amir H. Shahideh, an Akron General employee, then sexually assaulted her by engaging in nonconsensual touching unrelated to her injuries.

Evans filed a lawsuit against the hospital in November 2014, the last day of the two-year statute of limitations for a negligent hiring, supervision, or retention lawsuit, asserting that the abuse she experienced was the direct result of the hospital’s action.

The hospital asked the trial court for summary judgment, arguing the police investigated and closed the case without filing charges against Shahideh and Evans agreed that police are not likely to reopen the case.

The hospital indicated that Evans did not bring a civil battery lawsuit against Shahideh within the one-year statute of limitations that ended in November 2013. Because at the time she brought her lawsuit she was not able to show that Shahideh was civilly liable or guilty of a “claimed wrong,” the hospital cannot be held liable for negligent hiring, supervision, or retention, Akron General claimed.

The trial court granted Akron General’s summary judgment request, and Evans appealed to the Ninth District. The Ninth District reversed the trial court’s decision, noting that its decision was in conflict with a 1998 Third District Court of Appeals decision, Bishop v. Miller.

Akron General appealed to the Supreme Court, which agreed to consider the case and the conflict between the appellate courts.

Hospital Misinterprets Prior Court Ruling
Justice Donnelly noted that the Ninth District used a five-part test, which the appellate court has used in prior cases, to determine whether the hospital could be sued. Justice Donnelly wrote the Supreme Court has not adopted that test and focused only on one aspect of it in considering Evans’ case. The Court’s opinion focused only on the part of the test that considers whether the act or lack of action by an employee caused the plaintiff's injuries.

Akron General cited the Ohio Supreme Court’s 1988 Strock v. Pressnell decision, in which the Court determined an employer’s liability for hiring, supervision, or training is based on the employee having committed “some act that the law regards as wrongful.” In Strock, the Court stated that an underlying requirement for suing the employer is that an “employee is individually liable for a tort or guilty of a claimed wrong.”

The Court stated that Akron General interpreted that language to mean a lawsuit must be filed against the employee and the employee found liable or there had to be a criminal conviction of the employee before the employer could be sued.

The Strock case did not apply here because the key fact in that case was that the employee, a church minister, had an affair with a married parishioner. The parishioner’s husband wanted to hold the church liable for negligent oversight of the minister, Justice Donnelly wrote. The church could not be liable because although the employee’s action was “morally reprehensible,” having an affair was not illegal, he wrote, a situation entirely different from Akron General’s case, where Evans claimed she was sexually assaulted.

“Based on the allegations in this case, Dr. Shahideh allegedly did something that is legally cognizable as wrongful: the sexual abuse of a patient. Whether he can be found civilly liable or guilty of a crime is quite different from whether his conduct was legally wrongful.”

Evans does not have to demonstrate that Shahideh was adjudicated to be civilly liable or found guilty to allege that Akron General was negligent in hiring, retaining, or supervising the doctor, the Court found.

The Court remanded the case to the common pleas court for further proceedings because there is a genuine issue as to the nature of Shahideh’s actions.

2019-0284 and 2019-0453. Evans v. Akron Gen. Med. Ctr., Slip Opinion No. 2020-Ohio-5535.

View oral argument video of this case.

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