Singh v. Cleveland Clinic Found. , 2013 Ohio 2465 ( 2013 )

[Cite as Singh v. Cleveland Clinic Found., 2013-Ohio-2465.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99066
PARAMJIT SINGH, ET AL.
PLAINTIFFS-APPELLANTS
vs.
CLEVELAND CLINIC FOUNDATION, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-786358
BEFORE: Keough, J., Stewart, A.J., and Rocco, J.
RELEASED AND JOURNALIZED: June 13, 2013
ATTORNEY FOR APPELLANTS
David M. Lynch
29311 Euclid Avenue
Suite 200
Wickliffe, Ohio 44092
ATTORNEYS FOR APPELLEES
John S. Polito
Brian F. Lange
Bonezzi Switzer Murphy
Polito & Hupp Co., L.P.A.
1300 East Ninth Street
Suite 1950
Cleveland, Ohio 44114
KATHLEEN ANN KEOUGH, J.:
{¶1} Plaintiffs-appellants, Paramjit Singh and Jatinder Kaur (“appellants”),
appeal from the trial court’s judgment dismissing their complaint for intentional infliction
of emotional distress. For the reasons that follow, we affirm.
I. Background
{¶2} On December 29, 2009, appellants filed a complaint for medical
malpractice against defendants Cleveland Clinic Foundation, Hillcrest Hospital, Dr. Erol
Beytas, Dr. Natalya Eidlin, Dr. Leonard Kahn, Dr. Vinit Makkar, Dr. Glenn Meden, and
Dr. Teresa Ruch. Appellants sought damages for defendants’ alleged negligent medical
care of Singh at Hillcrest Hospital in July 2008. On April 19, 2010, appellants
voluntarily dismissed their complaint without prejudice pursuant to Civ.R. 41(A).
{¶3} On July 3, 2012, appellants refiled their complaint. The complaint was
again based on defendants’ care of Singh at Hillcrest Hospital in July 2008, but this time
the complaint asserted a cause of action for intentional infliction of emotional distress,
and no medical malpractice claim. Specifically, appellants alleged that the defendants
told Ms. Kaur, Singh’s wife, that nothing more could be done to save Singh or return him
to a meaningful existence, and that it was appropriate to remove him from life support.
Appellants alleged that defendants’ advice was incorrect because, at Ms. Kaur’s
insistence, Singh was moved to another hospital where he was treated and saved.
Appellants further alleged that defendants’ erroneous advice caused them mental anguish
and constituted intentional infliction of emotional distress.
{¶4} Defendants subsequently filed a motion for judgment on the pleadings
requesting that the trial court dismiss the complaint. They argued that appellants’
intentional infliction of emotional distress claim was, in essence, a medical malpractice
claim that was time barred. They argued further that the complaint should be dismissed
because appellants had not filed an affidavit of merit as required under Civ.R. 10(D)(2).1
{¶5} The trial court granted defendants’ motion to dismiss. The court found that
“a plain reading of the complaint shows that [appellants’] intentional infliction of
emotional distress claim is based on an alleged negligent medical diagnosis of Mr. Singh”
and that their claim for intentional infliction of emotional distress was therefore a
derivative medical claim that required an affidavit of merit under Civ.R. 10(D), which
they had not filed. The court further found that the complaint was filed outside the
one-year statute of limitations applicable to medical claims set forth in R.C. 2305.113.
{¶6} Appellants timely appealed from the trial court’s judgment.
II. Analysis
{¶7} Appellants contend that the trial court erred in dismissing their complaint
because they make no claim for medical malpractice in their complaint and hence, their
claim for intentional infliction of emotional distress is not a derivative medical claim.
Accordingly, they contend, the complaint was timely filed and no affidavit of merit was
required. Appellants’ argument is not well-founded.
Civ.R. 10(D)(2)(a) provides that “a complaint that contains a medical claim * * * as defined
1
in R.C. 2305.113 * * * shall include one or more affidavits of merit relative to each defendant named
in the complaint for whom expert testimony is necessary to establish liability.”
{¶8} A “medical claim” is “any claim that is asserted in any civil action against a
physician, podiatrist, [or] hospital * * * that arises out of the medical diagnosis, care, or
treatment of any person. ” R.C. 2305.113(E)(3). A “medical claim” includes
“[d]erivative claims for relief that arise from the medical diagnosis, care, or treatment of a
person.” R.C. 2305.113(E)(3)(a). Derivative claims include, but are not limited to:
claims of a * * * spouse of an individual who was the subject of any
medical diagnosis, care, or treatment * * *, that arise from that diagnosis,
care, treatment, or operation, and that seek the recovery of damages for * *
* (a) [l]oss of society, consortium, companionship, care * * * or any other
intangible loss that was sustained by the * * * spouse.
R.C. 2305.113(E)(7).
{¶9} In this case, the plain language of appellants’ complaint satisfies the
definition of a derivative medical claim as set forth in R.C. 2305.113(E)(7). The
complaint alleges that in July 2008, “Singh was under the care of the defendants who, in
turn, provided medical care to the plaintiff * * * at Hillcrest Hospital.” The complaint
further alleges that “during the course of treatment of [Singh],” the defendants improperly
informed Ms. Kaur that nothing further could be done to save Singh, causing appellants
emotional distress because Singh was ultimately moved to another hospital and saved.
{¶10} It is apparent from the complaint that the defendants’ alleged
communication to Ms. Kaur about Singh arose from the defendants’ “diagnosis, care, or
treatment” of Singh while he was a patient at Hillcrest Hospital. Thus, appellants’ claim
for intentional infliction of emotional distress arising from this communication is a
derivative claim for relief under R.C. 2305.113(E)(7), making it subject to the “medical
claim” requirements of Civ.R. 10 and R.C. 2305.113(B)(1).
{¶11} Despite appellants’ argument that their emotional distress claim is not a
derivative claim because the complaint does not allege any medical malpractice, the
essential claim of appellants’ complaint is one of medical malpractice, regardless of how
the claim is characterized. The complaint alleges that the defendants were incorrect in
telling Ms. Kaur that nothing could be done to save her husband. This allegation is an
assertion of medical malpractice and, thus, any emotional distress allegedly incurred as a
result of that communication is necessarily a derivative claim.
{¶12} The First District reached a similar conclusion in Butler v. Jewish Hosps.
Inc., 1st Dist. No. C-940119, 1995 Ohio App. LEXIS 1787 (May 3, 1995). In Butler, a
wife brought an emotional distress claim after a nurse inadvertently blurted out in front of
her that her husband had died, when in fact he had not. The wife argued that her
emotional distress claim was not a “medical claim,” and thus not subject to the one-year
statute of limitations for medical claims, because she was not the patient. The court
disagreed, holding that the wife’s emotional distress claim was a medical claim because it
arose out of the care and treatment of the patient.
{¶13} Likewise, in Roberts v. Luneau-Gordon, M.D., 2d Dist. No. 15212, 1995
Ohio App. LEXIS 5245 (Nov. 29, 1995), the Second District held that the parents’ claim
for intentional infliction of emotional distress based on the alleged negligent treatment of
their minor child was a derivative medical claim. The parents alleged that the defendants
failed to administer an MRI every six months, which delayed the discovery of an enlarged
tumor in the child. The parents alleged that the delay in diagnosis and the resulting
injury caused them emotional harm. The appellate court affirmed the trial court’s grant
of summary judgment to the defendants, finding that the parents’ emotional distress claim
arose out of the medical treatment and diagnosis of their child and, thus, was a derivative
claim for relief based on the underlying medical malpractice action, which failed.
{¶14} In this case, appellants’ claim for intentional infliction of emotional distress
arose out of defendants’ medical care and treatment of Singh. Accordingly, it is a
derivative claim subject to the requirements of Civ.R. 10 and R.C. 2305.113. Because
appellants did not file a certificate of merit, as required by Civ.R. 10, and because the
complaint was filed well after the one-year statute of limitations set forth in R.C.
2305.113, the trial court properly dismissed the case. Appellants’ assignment of error is
therefore overruled.
{¶15} Affirmed.
It is ordered that appellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
KATHLEEN ANN KEOUGH, JUDGE
KENNETH A. ROCCO, J., CONCURS;
MELODY J. STEWART, A.J., DISSENTS. (SEE ATTACHED DISSENTING
OPINION.)
MELODY J. STEWART, A.J., DISSENTING:
{¶16} While I recognize the existence of the contrary authority cited by the
majority, I nonetheless believe that the intentional infliction of emotional distress claim is
not a derivative medical claim under R.C. 2305.113(E)(3)(a).
{¶17} As the majority notes, a derivative claim is described in R.C.
2305.113(E)(7) and as applicable here, establishes that such claims arise from the
“diagnosis, care, treatment, or operation, and that seek the recovery of damages for * *
*(a) [l]oss of society, consortium, companionship, care * * * or any other intangible loss
that was sustained * * *.” Id. (Emphasis added.)
{¶18} There is no question that the intentional infliction of emotional distress
claim arose from the diagnosis and care of Singh; however, the court cannot conclude
from the face of the complaint that the claim seeks only the recovery of an “intangible
loss” sustained by plaintiffs. An intentional infliction of emotional distress claim can
encompass emotional harm that manifests in bodily injury. See 1 Restatement of the
Law 2d, Torts, Section 46(1); Yeager v. Local Union 20, 6 Ohio St.3d 369, 374-375, 453
N.E.2d 666 (1983).
{¶19} Because the defendants filed a Civ.R. 12(C) motion for judgment on the
pleadings, the complaint could only be dismissed if the plaintiffs could prove no set of
facts entitling them to relief. Walters v. First Natl. Bank of Newark, 69 Ohio St.2d 677,
433 N.E.2d 608 (1982). The allegations in the complaint could encompass a bodily
injury resulting from the alleged intentional conduct. And if the plaintiffs offered
evidence of medical treatment necessitated by their alleged injuries, those damages would
not be an “intangible loss.” I believe that granting the motion for judgment on the
pleadings was, therefore, erroneous.