As a part of an ongoing effort to preserve Ohio’s tort reform law, the Ohio Osteopathic Association, American Osteopathic Association, Ohio Hospital Association and state and national medical associations filed an amicus brief in Loudin v. Radiology & Imaging Services, August 24.
The associations are challenging a decision by the 9th District Appeals Court for creating a new tort claim for “negligent infliction of emotional distress,” even when the plaintiff is unable to prove actual physical injuries or other harm.
The case involves a breast cancer patient who alleged the doctors had failed to diagnose her tumor in a timely fashion, even though her expert witness acknowledged that any delay would have only changed her ten-year survival rate from 85 percent to 82 percent, which is not compensable under Ohio’s loss of chance law. Nearly a year after filing the case in Summit County Common Pleas Court, the breast cancer survivor added the negligent infliction of emotional distress claim when, according to her medical provider, it became clear she would not prevail in her malpractice claim of existing or future medical harm.
The trial court rejected all claims for negligence, including the “fear of an increased risk of recurrence of cancer,” finding the plaintiff could not claim emotional distress during a period in which she had no knowledge of actual harm. Despite medical findings, the 9th District reversed the trial court and granted the woman’s claim for negligent infliction of emotional distress.