Injury lawyers in Ohio shuddered with disbelief and concern when the Supreme Court of Ohio decided National Union Fire Ins. Co. v. Wuerth (2009), 122 Ohio St.3d 594. Prior to the Wuerth decision, injured Ohioans could bring suit against an employer, its employee or both when seeking compensation for injuries caused by the employee while acting within the course and scope of his/her employment. However, in Wuerth, the Supreme Court seemingly reversed decades of established law in holding that a client could not sue a law firm for legal malpractice unless the client also sued the individual lawyer who represented them. Malpractice lawyers wondered whether the Court would extend this strange new law to medical negligence cases.
We were thrust to the forefront of this issue when the Lucas County Court of Common Pleas summarily dismissed one of our cases because we had sued a physician practice group without suing the individual physicians employed by that group. We took the issue up on appeal to the Sixth District Court of Appeals, and with the assistance of an exceptional appellate attorney, the case was reversed and, in our opinion, properly so. Our case presented a compelling example of why Wuerth should not be extended beyond its unique facts.
In our case, a young woman presented to a hospital’s emergency department with complaints of discolored urine and pain and weakness in her legs, which are classic findings in a patient suffering from rhabdomyolysis. Rhabdomyolysis is a condition in which skeletal muscle (rhabdomyo) tissue breaks down rapidly (lysis) as a result of damage to the muscle. There are many causes of rhabdomyolysis, including nutritional deficiencies, traumatic injury, infection and other underlying diseases. The treatment for rhabdomyolysis is twofold: (1) supportive care, including giving fluid and managing renal complications; and (2) treating the underlying cause of the rhabdomyolysis.
At the time of the ER admission, the patient was experiencing profound nutritional deficiencies related to recent bariatric surgery. These are reflected in lab values and the history of poor nutritional intake that she gave to hospital personnel. The patient also provided emergency room personnel with a card indicating that she had recently undergone gastric bypass surgery for weight loss reasons. The card states the following: “