Ohio Supreme Court Rules in Loudin vs. Radiology

The Supreme Court of Ohio held today (April 20th) that damages for emotional distress stemming from a physical injury may be part of a traditional medical malpractice claim, but cannot form the basis for an independent cause of action for negligent infliction of emotional distress. 

The finding  was the focus of the arguments used by the Ohio Hospital Association, Ohio Osteopathic Association and the Ohio State Medical Association in an amicus brief filed in this case.  The three associations are monitoring tort reform challenges and filing amicus briefs at the Supreme Court level in instances where a decision could weaken Ohio's new tort law.  

In the 7-0 decision authored by Justice McGee Brown, the Court, upheld the 9th District Court of Appeal's decision, and found that the growth and metastasis of cancer is a cognizable physical injury for which Plaintiff can obtain emotional distress damages in a traditional medical malpractice case.  Justice O’Donnell entered a separate concurring opinion in which he wrote separately to emphasize that in his view today’s decision does not depart from the existing body of case law regarding the recovery of damages for emotional distress. 

Lonna Loudin, the plaintif, underwent screening mammograms at a facility operated by Radiology & Imaging Services on a yearly basis from 1997 through 2004. The results of a mammogram she underwent in March 2003 were analyzed by Dr. Richard Patterson, whose report indicated  that the test results were normal.

In May 2004, Loudin manually detected a lump in her left breast. Her gynecologist referred her for a diagnostic mammogram, which found a mass of approximately two centimeters in size that was “highly suggestive of cancer.” A biopsy confirmed that the mass was cancerous. With no additional factors present, a two-centimeter cancerous mass constitutes Stage 1 cancer. Loudin’s oncologists recommended the dissection of nearby lymph nodes in order to determine whether her cancer had spread to other areas. They informed Loudin that her treatment plan would probably entail lymph-node dissection, a lumpectomy, radiation therapy, and hormone therapy, but would most likely not include chemotherapy if the lymph nodes tested negative for cancer.    

The pathology report from the lymph node dissection indicated that Loudin’s cancer had metastasized to two lymph nodes. This additional factor advanced Loudin’s diagnosis to Stage IIA cancer.  Loudin underwent a lumpectomy, eight rounds of chemotherapy, six weeks of radiation therapy, and began hormone therapy. 

Loudin filed suit in the Summit County Court of Common Pleas against Radiology & Imaging Services and Dr. Patterson seeking damages for medical malpractice, negligent supervision, and emotional distress. During pretrial proceedings, Loudin submitted deposition testimony of a radiology expert stating that her 2003 mammogram showed a visible one-centimeter mass where the two-centimeter mass had been detected a year later, and that the failure of Dr. Patterson to detect that mass during his analysis of the 2003 mammogram results was a deviation from the applicable standard of care. A second expert witness testified that to a reasonable degree of medical certainty, if Loudin had been properly diagnosed and her cancer treated in 2003, the cancer found in her lymph nodes in 2004 would not have spread to those organs, and she would not have been required to undergo chemotherapy.

The defendants moved for summary judgment dismissing Loudin’s claims on the basis that she had not stated a claim for which relief could be granted. The trial court granted summary judgment in favor of the clinic and Dr. Patterson.  In its decision, the court found that the  growth or metastasis of an existing cancer had not been recognized in Ohio as a compensable “physical injury” that would support a medical negligence claim, and also held that without first establishing a physical injury caused by the defendants’ negligent  acts or omissions, Loudin could not pursue a separate claim for negligent infliction of emotional distress.

Loudin appealed.  On review, the 9th District Court of Appeals reversed the trial court’s summary judgment and remanded the case to the trial court for further proceedings on Loudin’s claims. The appellate panel held that the growth and metastasis of cancer is a compensable physical injury, and that Loudin’s medical-negligence claim therefore should have survived summary judgment. The court of appeals held further that a plaintiff asserting a negligence claim that involves a physical injury may seek recovery for emotional distress as part of his or her damages, and that Loudin’s fear of recurrence of her cancer was a type of emotional injury for which she could seek recovery in a malpractice action.

Radiology & Imaging Services and Dr. Patterson sought and were granted Supreme Court review of the 9th District’s rulings.

In today’s 7-0 decision affirming the 9th District, Justice McGee Brown wrote: “The appellants concede that Loudin adequately established duty and breach for purposes of summary judgment by presenting expert testimony that the appellants’ failure to detect her cancer in 2003 was a deviation from the applicable standard of care. They focus their argument on the element of damages, and contend that Loudin provided no evidence that the appellants’ failure to timely diagnose her cancer proximately caused her any physical injury.  They agree with the trial court’s conclusion that ‘growth and metastasis of cancer are not compensable physical injuries in Ohio,’ and they point out that Loudin was not cognizant of the growth of her tumor from 2003 to 2004 and assert that the course of treatment for her cancer would have been no less intensive had it been detected in 2003. These arguments are not well taken.”

“First, the appellants’ contention that a plaintiff must physically perceive the cancer’s progression in order for it to be a compensable injury is unfounded.  The law recognizes that injuries in medical-malpractice cases may go undetected for a long time, as evidenced by the tolling of the statute of limitations for medical-negligence claims until the plaintiff is or should be aware of the injury.  R.C. 2305.113(D).  There is no requirement in Ohio that a physical injury in a traditional negligence case cause pain or otherwise manifest itself so that the plaintiff is aware of its presence and deleterious effect at all times.”

“Second, Loudin presented expert testimony that she would not have undergone an identical course of treatment had the cancer been detected in 2003. Loudin presented expert testimony stating that chemotherapy is not administered when the lymph nodes test negative for cancer. Loudin presented further expert testimony that her lymph nodes would have been negative for cancer in 2003. Thus, according to her experts, she would not have had to undergo eight rounds of chemotherapy but for the appellants’ failure to timely diagnose her cancer.”

“Third, the growth and metastasis of cancer is a cognizable physical injury.  Loudin presented expert testimony that cancer is a progressive disease and that the longer it is able to progress, the more it is able to compromise additional areas of the body and increase the number of cancer cells in the body.  Whether the cancer is left undiagnosed to advance to the point of necessitating the removal of an organ, a limb, a breast, or a larger lump, the destruction of additional healthy cells and increased number of cancer cells are physical injuries, not mere physical changes. Although tumor enlargement and involvement of the lymph nodes might not require radically different treatment, a plaintiff need only show some slight injury for the question of damages to go to the jury.”

“When the evidence is viewed in a light most favorable to Loudin, she has raised a genuine issue of material fact as to whether she would have sustained physical injuries greater than those that existed in 2003 but for the appellants’ negligence. Specifically, but for the failure to timely diagnose Loudin’s cancer, would her tumor have grown from one to two centimeters, would her cancer have spread to her lymph nodes and advanced from Stage I to Stage IIA, and would she have had to undergo chemotherapy?  The Ninth District correctly reversed the trial court’s summary-judgment decision on Loudin’s medical-negligence claim.”

Justice McGee Brown provided additional clarity, finding that to the extent the trial court and court of appeals analyzed Loudin’s emotional distress damage claims under the criteria for an independent action for negligent infliction of emotional distress, the lower courts had no need to engage in such analysis.  She wrote: “We hold that the inclusion of damages for emotional distress in a complaint alleging negligence does not automatically transform the claim into one alleging the negligent infliction of emotional distress, nor does it automatically create a cause of action separate and distinct from the negligence claim. ...  Thus, there was no negligent-infliction-of-emotional-distress claim for either the trial court or the appellate court to accept or reject and their discussions of such a claim were unnecessary.”

Justice McGee Brown’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Judith Ann Lanzinger and Robert R. Cupp.

Justice Terrence O’Donnell entered a separate opinion in which he concurred with the Court’s judgment and syllabus holding, but wrote separately to emphasize that in his view today’s decision does not depart from the existing body of case law regarding the recovery of damages for emotional distress. 

Citing prior Supreme Court of Ohio court decisions including Schultz v. Barberton Glass Co. (1983), Paugh v. Hanks (1983), and Binns v. Fredendall (1987), Justice O’Donnell wrote:  “(O)ur case law already establishes that a plaintiff who suffers a physical injury may recover for emotional distress, regardless of whether the emotional injuries are severe and debilitating. ... The majority affirms the holding by the court of appeals that a delayed diagnosis of cancer can cause an attendant physical injury for which a plaintiff may seek recovery for emotional distress as an element of damages. ... I concur in the judgment affirming the court of appeals on the basis that Lonna Loudin has raised a genuine issue of fact as to whether she sustained a physical injury as a result of a delayed diagnosis of breast cancer.”

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