S.S. v. Ruddock , 2014 Ohio 2270 ( 2014 )

[Cite as S.S. v. Ruddock, 2014-Ohio-2270.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100281
S.S.
PLAINTIFF-APPELLANT
vs.
MARTIN RUDDOCK
DEFENDANT-APPELLEE
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-11-750534
BEFORE: S. Gallagher, P.J., Rocco, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: May 29, 2014
ATTORNEYS FOR APPELLANT
Alec Berezin
Patrick J. Perotti
Dworken & Bernstein Co., L.P.A.
60 South Park Place
Painesville, OH 44077
Denise Mackura
1338 Avondale Road
South Euclid, OH 44121
ATTORNEYS FOR APPELLEE
Edward E. Taber
Karen E. Ross
Tucker Ellis L.L.P.
950 Main Avenue
Suite 1100
Cleveland, OH 44113
SEAN C. GALLAGHER, P.J.:
{¶1} Plaintiff-appellant S.S.1 appeals the decision of the Cuyahoga County Court
of Common Pleas that granted defendant-appellee Martin Ruddock, M.D.’s motion for
partial summary judgment and dismissed the complaint with prejudice. For the reasons
stated herein, we reverse the trial court’s decision and remand the case for further
proceedings.
{¶2} In March 2010, appellant, who is from West Virginia, traveled to Ohio to
receive an abortion. She went to Dr. Ruddock at the Center for Women’s Health, Inc., in
Cleveland. Appellant was in her second trimester of pregnancy. She was accompanied
by her mother.
{¶3} Dr. Ruddock first saw appellant on March 16, 2010. On that date, appellant
signed six informed-consent forms at Dr. Ruddock’s office. Appellant claims she signed
these forms prior to ever seeing Dr. Ruddock and that required counseling was not
provided 24 hours in advance of the abortion procedure. Appellant was informed that
because of her stage of pregnancy, Dr. Ruddock would have to first place dilators, known
as laminaria, into her cervix during the first two days, and that the abortion would not be
completed until the third day, which would have been March 18, 2010.
{¶4} On March 16, 2010, Dr. Ruddock examined appellant and placed three
laminaria into her cervix. During the procedure, appellant experienced pain and
uncertainty. She indicated that she wanted to stop. Dr. Ruddock informed her that it
1
Because of the nature of the action, appellant is identified by initials only.
was not possible. According to appellant, Dr. Ruddock informed her that her water had
already broken; that he could not stop; that she could not revoke consent once the
procedure had begun; and that if the procedure were stopped, the child would suffer from
mental retardation. The procedure continued, and the laminaria were inserted. An
abortion procedure report was used to document the procedure.
{¶5} The next day, appellant went to another doctor who removed the laminaria
and informed her that her water had not been broken. On March 18, 2010, appellant
returned to Dr. Ruddock’s office and was given a refund after signing a “laminaria
removal release.” Appellant’s pregnancy resulted in the birth of a healthy baby.
{¶6} Appellant filed this action on May 9, 2011, raising claims for violation of
Ohio’s informed consent law, R.C. 2317.56, and violation of R.C. 3701.74 for failing to
provide medical records in accordance with R.C. 3701.741. In her first amended
complaint, appellant added a claim for fraud and misrepresentation. Appellant later filed
a second amended complaint, without seeking leave of court, in which she added a claim
for spoliation based upon alleged alteration of evidence.
{¶7} Dr. Ruddock filed an amended answer to the first amended complaint and a
counterclaim, claiming breach of contract arising from the signed release agreement. On
October 7, 2011, he filed a motion for partial summary judgment that requested the
dismissal of all of appellant’s claims. Dr. Ruddock argued that the claims were barred
by the release and that the claims failed upon the merits. He later filed a notice of
correction in which he clarified that his motion for partial summary judgment was based
on the typewritten language of the release. This clarification occurred because
Dr. Ruddock had submitted a copy of the release that had additional handwritten language
that purported to prohibit appellant from bringing any legal action whatsoever.
Appellant claimed this was an altered copy and that the actual release she signed did not
contain the handwritten language that was added to the document submitted by
Dr. Ruddock.
{¶8} In ruling on the motion, the trial court only considered the undisputed
language of the release signed by appellant that provides “under no circumstances will
[appellant] * * * hold Dr. Martin D. Ruddock, MD * * * responsible for anything
whatsoever, regarding my health or the outcome of this pregnancy * * *.” The court
determined that this language was not unclear or ambiguous and that appellant breached
the agreement by bringing this action. The trial court granted Dr. Ruddock’s motion and
dismissed the complaint and all claims raised therein with prejudice. The trial court’s
ruling included “no just reason for delay” language.
{¶9} Appellant timely filed this appeal from the trial court’s decision. Her sole
assignment of error claims the trial court erred by dismissing the complaint in its entirety
based on an inapplicable limited laminaria release. We agree.
{¶10} Appellate review of summary judgment is de novo, governed by the
standard set forth in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559,
833 N.E.2d 712, ¶ 8. Summary judgment is appropriate when “(1) there is no genuine
issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and
(3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds
can come to but one conclusion and that conclusion is adverse to the nonmoving party.”
Marusa v. Erie Ins. Co., 136 Ohio St.3d 118, 2013-Ohio-1957, 991 N.E.2d 232, ¶ 7.
{¶11} A release is reviewed under the rules governing the construction of
contracts. Shifrin v. Forest City Ents., Inc., 64 Ohio St.3d 635, 637, 1992-Ohio-28, 597
N.E.2d 499. A court must examine a contract as a whole, and it is presumed that the
intent of the parties resides in the language employed in the agreement. Sunoco, Inc.
(R&M) v. Toledo Edison Co., 129 Ohio St.3d 397, 2011-Ohio-2720, 953 N.E.2d 285, ¶
37. Where a contract is clear and unambiguous, its interpretation is a question of law.
Davis v. Loopco Industries, Inc., 66 Ohio St.3d 64, 65, 1993-Ohio-195, 609 N.E.2d 144.
Further, where there is any doubt or ambiguity in the language of the release agreement, it
will be strictly construed against the drafter of the document. Knickel v. Marion, 3d
Dist. Marion No. 9-2000-75, 2001-Ohio-2127, citing McKay Machine Co. v. Rodman, 11
Ohio St.2d 77, 80, 228 N.E.2d 304 (1967).
{¶12} Initially, we find the contention of a dispute surrounding the altered release
language to be no more than a red herring. As already discussed, Dr. Ruddock clarified
that he was relying upon the typewritten release language and the court only considered
the undisputed language of the release when ruling upon summary judgment. Likewise,
upon our review, we only consider the typewritten release.
{¶13} The release was captioned “laminaria removal release” and related to
appellant’s decision to have the laminaria removed. The release provides that on March
18, 2010, appellant was informed of the possible consequences of interrupting the process
initiated by Dr. Ruddock for a second trimester abortion. The release lists possible
negative consequences of the laminaria removal and indicates that the removal was
against the sound medical advice of Dr. Ruddock. The release contains an
acknowledgment by appellant that she would be solely responsible “for any/all possible
outcomes regarding my health and that of my developing fetus.” Appellant further
acknowledged that “under no circumstances, will [appellant] * * * hold Dr. Martin D.
Ruddock, MD, the Center for Women’s Health responsible for anything whatsoever,
regarding my health or the outcome of this pregnancy.”
{¶14} We find the release is clear and unambiguous. In examining the language
of the release as a whole, it is apparent that the release pertains to the risks associated
with the laminaria removal, appellant’s acceptance of responsibility for any and all
outcomes regarding her health and that of her fetus, and a release of liability against Dr.
Ruddock for claims regarding her health or the outcome of her pregnancy. The release
does not manifest an intent to release Dr. Ruddock from liability concerning violations of
Ohio’s informed consent law, medical record release laws, fraud and misrepresentation
claims regarding the pregnancy itself, or spoliation of evidence claims. Arguably, a
release of Ohio’s informed consent laws would be against public policy. Further, the
events giving rise to the medical records and spoliation claims arose after the release was
entered. Accordingly, we find the trial court erred by applying the release to preclude
appellant’s claims and by finding appellant had breached the agreement by filing this
action.
{¶15} In his motion for partial summary judgment, Dr. Ruddock also argued
against the merits of the claims. We shall address each claim separately.
{¶16} R.C. 2317.56 sets forth information that is to be provided to a woman “prior
to an abortion.” The statute instructs that “an abortion shall be performed or induced”
only if certain conditions are satisfied. R.C. 2317.56(B). The conditions include that at
least 24 hours prior to the procedure, a physician meet with the pregnant woman in person
and provide certain disclosures regarding the nature of the procedure and associated risks,
the probable gestational age of the fetus, and the risks of carrying the pregnancy to term.
R.C. 2317.56(B)(1). The statute also requires published materials about the procedure be
given to the woman. R.C. 2317.56(B)(2)(b). Also, the woman must give written
consent prior to the performance or inducement of the abortion. R.C. 2317.56(B)(4). A
person who fails to comply with the required conditions may be liable for compensatory
and exemplary damages and may be subject to disciplinary action under R.C. 4731.22.
R.C. 2317.56(G).
{¶17} Dr. Ruddock claims that the consent forms signed by appellant demonstrate
that he complied with Ohio’s informed consent laws. However, appellant states in her
affidavit that she was instructed to sign these forms before ever meeting with Dr.
Ruddock and she was not given proper counseling, the state-mandated materials, or a
24-hour waiting period. Although Dr. Ruddock claims that appellant had already
received the requisite informed consent information in West Virginia, this is not clearly
ascertainable from the record and is a disputed fact.
{¶18} Dr. Ruddock also asserts that appellant did not have an abortion because she
delivered a healthy baby. That the procedure did not result in the termination of the
pregnancy is not dispositive of the claim. R.C. 2317.56 requires that informed consent
be obtained prior to an abortion being performed or induced. There is evidence in the
record that reflects Dr. Ruddock performed or induced an abortion procedure on
appellant. Appellant was informed of a three-day process relating to the abortion. As
Dr. Ruddock states, on March 16, 2010, he had to “place dilators into [appellant’s] cervix
to prepare her body for the abortion.” Once this procedure was initiated, and after
appellant requested it stop, Dr. Ruddock informed her it was not possible. An “abortion
procedure report” documented the procedure performed as a “second trimester abortion
(dilation & extraction – D&E); suction.”
{¶19} Because there are genuine issues of material fact in dispute on the claim of
lack of informed consent, summary judgment was not proper thereon.
{¶20} Appellant also raised a claim for fraud and misrepresentation. The
elements of this claim include the following:
“(a) a representation or, where there is a duty to disclose, concealment of a
fact, (b) which is material to the transaction at hand, (c) made falsely, with
knowledge of its falsity, or with such utter disregard and recklessness as to
whether it is true or false that knowledge may be inferred, (d) with the
intent of misleading another into relying upon it, (e) justifiable reliance
upon the representation or concealment, and (f) a resulting injury
proximately caused by the reliance.”
Groob v. Keybank, 108 Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170, ¶ 47, quoting
Gaines v. Preterm-Cleveland, Inc., 33 Ohio St.3d 54, 55, 514 N.E.2d 709 (1987).
{¶21} Appellant claims that Dr. Ruddock failed to provide all relevant information
prior to initiating the abortion procedure and made false statements during the abortion
procedure. She alleges Dr. Ruddock made numerous false statements, including that it
was too late to stop the abortion; that her water had already broken; that she could not
revoke her consent once the procedure had begun; and that if she stopped, her child
would be mentally retarded. Appellant states she relied on these statements and
continued to endure a painful and frightening procedure that included the installation of
the laminaria. Although Dr. Ruddock argues appellant did not suffer an injury because
she did not have an abortion, appellant presented evidence, by way of her affidavit, of
pain and stress to her person caused by the procedure that was performed. We find
summary judgment is not warranted on this claim because there are genuine issues of
material fact in dispute.
{¶22} Next, we address the claim for failure to provide medical records. R.C.
3701.74 authorizes a civil action to enforce a patient’s right of access to medical records.
Under her claim, appellant asserts that despite repeated written requests and the passage
of reasonable time, Dr. Ruddock failed to provide her medical records. Dr. Ruddock
argues that the claim is baseless because the medical records were provided in early 2011.
However, this was after the lawsuit was filed and ignores the cost of counsel in pursuing
the claim. Further, appellant was unable to review the records in contemplation of the
action and should not have been obligated to file a lawsuit to obtain her medical records.
We find the claim for failure to provide medical records was improperly dismissed by the
trial court.
{¶23} Finally, we address the claim for spoliation. This claim is based on
Dr. Ruddock’s alleged alteration of the release. Dr. Ruddock argues that the spoliation
claim was raised in the second amended complaint, which was filed without leave of
court. Therefore, he asserts that the second amended complaint should be stricken and
the claim disregarded.
{¶24} Our review reflects that the filing of the second amended complaint without
leave was not challenged by Dr. Ruddock in the trial court and no objection was raised to
the trial court’s recognition of the spoliation claim in its ruling on the motion for
summary judgment. The failure to raise this issue before the trial court constitutes a
waiver, and we may disregard the argument on appeal. See State v. Douglas, 66 Ohio
St.3d 788, 790, 586 N.E.2d 1096 (1989). Because the release does not bar the spoliation
claim, the trial court erred in dismissing this claim.
{¶25} We conclude Dr. Ruddock’s motion for partial summary judgment should
have been denied, and we reverse the trial court’s decision. Appellant’s sole assignment
of error is sustained.
{¶26} Judgment reversed; case remanded.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE
KENNETH A. ROCCO, J., and
EILEEN T. GALLAGHER, J., CONCUR