Walling v. Brenya ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Walling v. Brenya, Slip Opinion No. 2022-Ohio-4265.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-4265WALLING, ADMR., APPELLANT, v. BRENYA ET AL.; TOLEDO HOSPITAL,
APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Walling v. Brenya, Slip Opinion No. 2022-Ohio-4265.]
Negligent credentialing—Negligent credentialing is a claim separate and
independent from medical negligence, but a negligent-credentialing claim
cannot proceed without either a simultaneous or a prior adjudication of or
stipulation to medical negligence—Court of appeals’ judgment affirmed.
(No. 2021-0241—Submitted March 9, 2022—Decided December 1, 2022.)
APPEAL from the Court of Appeals for Lucas County,
No. L-19-1264, 2021-Ohio-29.
_______________________
DONNELLY, J.
INTRODUCTION
{¶ 1} The issue in this case is whether a hospital’s granting staff privileges
to a physician (i.e., credentialing a physician) confers a duty upon the hospital that
SUPREME COURT OF OHIO
is separate from and independent of the duty the physician owes to the hospital’s
patients, and if so, whether a negligent-credentialing claim brought by a patient can
proceed in the absence of a prior adjudication or stipulation that the physician was
negligent in his care of the patient. We conclude that negligent credentialing is a
separate and independent claim from medical negligence. Nevertheless, a
negligent-credentialing claim cannot proceed without either a simultaneous or prior
adjudication of or stipulation to medical negligence.
FACTS AND PROCEDURAL HISTORY
{¶ 2} Raeann Walling, the daughter of appellant, Michael Walling, was
treated by Dr. Ransford Brenya at appellee, Toledo Hospital, where Dr. Brenya, a
nonemployee of the hospital, held staff privileges. Raeann had a heart
arrhythmia—catecholaminergic polymorphic ventricular tachycardia (“CPVT”),
which Dr. Brenya treated by performing three cardiac ablations, two of which were
done at Toledo Hospital. Raeann developed pulmonary-vein stenosis, which was
undetected.
{¶ 3} At trial, Dr. Brenya testified on cross-examination that he had failed
to review Raeann’s chest x-rays, thereby missing the opportunity to detect a
potential obstruction in her pulmonary veins. Furthermore, because he had failed
to review Raeann’s x-rays, Dr. Brenya also did not order a CT scan, which he
testified would have been the standard of care had he been aware of the potential
obstruction in Raeann’s pulmonary veins that was revealed in the x-ray records.
Thus, Raeann’s pulmonary-vein stenosis was not discovered or treated as soon as
it could have been. Raeann died on April 26, 2014. Walling, as administrator of
Raeann’s estate, filed suit against Dr. Brenya, alleging medical negligence, and
against Toledo Hospital, alleging negligent credentialing.1 The trial court granted
Toledo Hospital’s motion to bifurcate the claims. Four days into the trial, the
1. Walling’s medical-negligence claims also included Dr. Osama Al-Bawab and the Toledo Clinic,
Inc., as defendants.
2
January Term, 2022
parties settled the medical-negligence claims. The terms of the settlement are
confidential. And while the trial court acknowledged “the wishes of the parties to
preserve the confidentiality of their settlement agreement,” it correctly noted in its
judgment entry that “the record is devoid of any stipulation or other agreement that
embodies a concession of liability or malpractice in connection with the care and
treatment of Raeann Walling.” The medical-negligence claims were dismissed
with prejudice.
{¶ 4} Soon thereafter, Toledo Hospital moved for summary judgment on
the negligent-credentialing claim. The trial court granted the motion, and Walling
appealed. The court of appeals affirmed, concluding that summary judgment was
correctly granted because Walling had “failed to obtain a prior determination,
whether through adjudication or stipulation, that Brenya’s malpractice proximately
caused [Raeann’s] injuries.” 2021-Ohio-29, ¶ 20.
{¶ 5} We accepted Walling’s discretionary appeal. 163 Ohio St.3d 1417,
2021-Ohio-1606, 167 N.E.3d 982.
ANALYSIS
{¶ 6} Because this case was decided on summary judgment, our review is
de novo. State ex rel. Yost v. Burns, __ Ohio St.3d __, 2022-Ohio-1326, __ N.E.3d
__, ¶ 9, citing Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505,
936 N.E.2d 481, ¶ 29.
{¶ 7} We addressed a substantially similar issue in Schelling v. Humphrey,
123 Ohio St.3d 387, 2009-Ohio-4175, 916 N.E.2d 1029, ¶ 1, a case in which a
doctor who performed foot surgeries was sued for medical negligence and the
hospital where he had staff privileges was sued for negligent credentialing. Id. at
¶ 2, 6. After the doctor filed a petition in bankruptcy, the plaintiffs dismissed their
medical-negligence claim against him, and the hospital moved to dismiss the
negligent-credentialing claim. Id. at ¶ 3, 8. The trial court granted the hospital’s
motion to dismiss, but the Sixth District Court of Appeals reversed, “reject[ing] the
3
SUPREME COURT OF OHIO
hospital’s argument that a finding of the doctor’s negligence is a legal prerequisite
to a negligent-credentialing claim.” Id. at ¶ 9-10.
{¶ 8} On appeal, we determined that the doctor’s “lack of amenability to
suit [did] not in and of itself extinguish the Schellings’ negligent-credentialing
claim against the hospital.” Id. at ¶ 30. We noted that generally, a hospital “would
not be required to defend against a negligent-credentialing claim before the
physician’s malpractice has been determined, either in a prior proceeding or as the
first part of the case against both the doctor and the hospital.” Id. at ¶ 26. Such
bifurcation, we explained, “allows a negligent-credentialing claim against a
hospital to be dismissed if the plaintiff does not prevail on the malpractice claim
against the doctor.” Id. at ¶ 28. Nevertheless, we concluded that “[u]nder the
unusual circumstances of [the] case, where the bankruptcy proceedings impeded
the Schellings from joining the physician as a party,” the negligent-credentialing
claim could still be prosecuted, but only after a determination that the doctor had
been negligent. Id. at ¶ 30-31.
{¶ 9} In the case before us, Walling is asking us to revisit the holding in
Schelling and, at a minimum, to expand it. Yet, as Walling concedes, the reasoning
behind Schelling “remains sound,” and therefore, we decline to extend its reach.
{¶ 10} Hospitals have a duty to “grant and continue staff privileges only to
competent doctors.” Schelling, 123 Ohio St.3d 387, 2009-Ohio-4175, 916 N.E.2d
1029, at ¶ 17, citing Albain v. Flower Hosp., 50 Ohio St.3d 251, 553 N.E.2d 1038(1990), paragraph two of the syllabus, overruled in part on other grounds by Clark
v. Southview Hosp. & Family Ctr., 68 Ohio St.3d 435, 628 N.E.2d 46 (1994).
Negligent credentialing is not grounded in vicarious liability based on a doctor’s
liability for malpractice; rather, it is an independent claim that “stems from a
hospital’s direct duty to grant and continue staff privileges only to competent
doctors.” Id. at ¶ 30. Though a negligent-credentialing claim is independent, our
caselaw is patently clear: negligent-credentialing claims are not viable in the
4
January Term, 2022
absence of medical negligence by the treating doctor. See Schelling at ¶ 19;
Browning v. Burt, 66 Ohio St.3d 544, 566, 613 N.E.2d 993 (1993) (Moyer, C.J.,
concurring in part and dissenting in part).
{¶ 11} In Schelling, the issue before us was “whether a plaintiff can proceed
on a negligent-credentialing claim against a hospital without a prior finding, either
by adjudication or stipulation, that the plaintiff’s injury was caused by the
physician’s malpractice.” Id. at ¶ 11. As noted above, we said that, barring unusual
circumstances, a plaintiff could not proceed without such a prior determination. Id.
at ¶ 32. The proposition of law in this case posits, to the contrary, that a negligent-
credentialing claim “can exist in the absence of a prior adjudication or stipulation
that the physician was negligent.”
{¶ 12} Walling argues that a prior adjudication or stipulation of medical
negligence is not necessary in this case, because Dr. Brenya conceded the elements
of negligence under cross-examination in the medical-negligence portion of the
trial, which justifies an exception. We noted that Schelling was an exceptional case
in that the doctor was not amenable to suit because of a bankruptcy stay and
discharge. Id., 123 Ohio St.3d 387, 2009-Ohio-4175, 916 N.E.2d 1029, at ¶ 32.
This case is not exceptional; Walling and Dr. Brenya decided to settle the
underlying medical-negligence case. And Walling knew or should have known that
one of the consequences of settling and dismissing the claim against Dr. Brenya
without first obtaining a stipulation to negligence was the inability to pursue a
negligent-credentialing claim against Toledo Hospital.2 The foreclosing of the
opportunity to pursue a negligent-credentialing claim may appear unduly
restrictive; however, we made clear in Schelling that any plaintiff who settles a
medical-negligence claim with a physician without obtaining a stipulation that the
2. Settling affects many interests. One of the most important for a doctor is to be done with the
case. Being able to drag a doctor who has already settled with a patient back into a negligent-
credentialing case might lead to fewer medical-negligence settlements.
5
SUPREME COURT OF OHIO
physician was negligent is precluded from proceeding on a negligent-credentialing
claim. And because negligent credentialing is an independent cause of action, even
when a physician has stipulated to medical negligence, the plaintiff still has the
burden of proving all the elements of a negligent-credentialing claim against the
hospital at trial.
{¶ 13} For purposes of this opinion, we assume that Dr. Brenya’s testimony
during trial amounted to an admission that his treatment of Raeann Walling fell
below the standard of care. Nonetheless, it should be obvious that an admission of
this sort is not tantamount to a determination of negligence. For one thing, the
admission was limited; as the trial court summarized, it did “not include the
affirmative expressions of liability required to advance a negligent-credentialing
claim.” Also, any admission by Dr. Brenya did not address proximate cause.
Moreover, the admission was not weighed and determined by the jury to be credible
when balanced against a complete presentation of evidence. The settlement
occurred before Walling had concluded his case and before Dr. Brenya had
presented any of his own evidence. Nothing here convinces us that whatever
admission Dr. Brenya made during the trial rises to the level of an adjudication of
or stipulation to medical negligence.
{¶ 14} Walling’s reliance on Evans v. Akron Gen. Med. Ctr., 163 Ohio St.3d
284, 2020-Ohio-5535, 170 N.E.3d 1, to support his argument that Schelling’s
exception to the prior-determination requirement should be expanded is also
misplaced. In Evans, a doctor employed by the defendant hospital was alleged to
have sexually abused a patient. Id. at ¶ 2. We held that “a plaintiff need not show
that an employee has been adjudicated civilly liable or has been found guilty of a
crime by a court in order for the plaintiff to maintain a negligent hiring, retention,
or supervision claim against an employer.” Id. at ¶ 10. Though there are some
similarities between a negligent-credentialing claim and a negligent-hiring claim
(none of which are relevant to our analysis here), there is at least one critical
6
January Term, 2022
difference that is dispositive of Walling’s argument: a negligent-credentialing
claim generally requires a prior finding of medical negligence against the physician,
whereas a negligent-hiring claim does not require a prior finding of misconduct or
negligence against the employee. We decline to expand the exception to
Schelling’s prior-determination requirement based on a case with such a different
proof requirement.
CONCLUSION
{¶ 15} The caselaw is clear: a negligent-credentialing claim cannot proceed
without either a simultaneous or prior adjudication of or stipulation that a doctor
committed medical malpractice. Such an adjudication or stipulation was not
present in this case.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FISCHER, and DEWINE, JJ., concur.
BRUNNER, J., dissents, with an opinion joined by STEWART, J.
_________________
BRUNNER, J., dissenting.
{¶ 16} The focus of this case should be whether Dr. Ransford Brenya’s
testimony during the initial portion of the bifurcated proceedings created a genuine
issue of material fact such that appellant, Michael Walling, could present the
medical-malpractice issue during the medical-credentialing portion of the trial. But
today’s decision instead raises the threshold for plaintiffs in negligent-credentialing
cases beyond what is called for in our caselaw or justified by public policy.
Therefore, I respectfully dissent.
{¶ 17} Walling cannot prevail on his negligent-credentialing claim against
appellee, Toledo Hospital, without showing that Dr. Brenya’s negligence was the
proximate cause of Raeann Walling’s death. I agree with the majority that our
caselaw is “patently clear” as to that question. See majority opinion, ¶ 10. But I
7
SUPREME COURT OF OHIO
disagree with the majority as to when and how the medical negligence and
causation must be proved.
{¶ 18} In Schelling v. Humphrey, 123 Ohio St.3d 387, 2009-Ohio-4175,
916 N.E.2d 1029, we concluded that the physician’s “lack of amenability to suit
[did] not in and of itself extinguish the Schellings’ negligent-credentialing claim
against the hospital,” id. at ¶ 30. We held that the Schellings could present their
medical-malpractice claim against the physician “as an element of their negligent-
credentialing claim against the hospital.” Id. And we did so over the the hospital’s
argument that it would be unfair to require it to defend the malpractice claim
against the physician. Id. at ¶ 25.
{¶ 19} The only distinction the majority raises between Schelling and this
case is that that the Schellings were barred by a bankruptcy stay and discharge from
pursuing their malpractice claim against the physician, id. at ¶ 32, whereas Walling
had a hand in procuring Dr. Brenya’s absence by entering into a confidential
settlement and agreeing to dismiss the malpractice claim without obtaining a
stipulation to Dr. Brenya’s negligence. Majority opinion at ¶ 12. But the majority
does not adequately explain why this distinction necessitates the result reached in
this case. The cause of a physician’s unavailability does not change the elements
of the negligent-credentialing claim, the plaintiff’s ultimate burden, or the
hospital’s obligation to present a defense.
{¶ 20} There is no explanation in the majority’s opinion, nor support in our
precedent, for creating the heightened summary-judgment standard that the
majority endorses today for negligent-credentialing claims to survive. When ruling
on a hospital’s summary-judgment motion, the trial court makes a determination as
to whether a hospital is entitled to judgment as a matter of law. Civ.R. 56(C). If in
a bifurcated case the plaintiff cannot establish liability against the physician, then
the plaintiff is bound by that determination and cannot, as a matter of law, establish
the underlying medical-malpractice element in the negligent-credentialing claim.
8
January Term, 2022
{¶ 21} If there is no prior determination regarding the physician’s liability,
that does not mean that medical malpractice cannot be established. When no prior
determination has been made with respect to negligence and causation, a summary-
judgment motion tests whether the evidence presents a genuine issue of material
fact as to the underlying malpractice claim, and in ruling on that motion, the court
must view the evidence in a light most favorable to the nonmoving party, Civ.R.
56(C). Under the majority’s heightened standard, a plaintiff must now first prove
the underlying malpractice in order to survive summary judgment on the negligent-
credentialing claim. This needlessly limits a plaintiff’s ability to pursue claims
against both the physician and the hospital and in turn may unreasonably limit the
recovery and accountability objectives behind medical-malpractice and negligent-
credentialing claims.
STEWART, J., concurs in the foregoing opinion.
_________________
Johnson Law, P.L.C., and Jeffrey T. Stewart, for appellant.
Robison, Curphey & O’Connell, L.L.C., James E. Brazeau, and Kayla L.
Henderson, for appellee.
Bricker & Eckler, L.L.P., Anne Marie Sferra, and Brodi J. Conover; and
Epstein Becker & Green, P.C., and Victoria F. McCurdy, urging affirmance for
amici curiae, Ohio Hospital Association and Ohio Association of Civil Trial
Attorneys.
_________________
9