Ohio Supreme Court Allows Emotional Distress Claim in Malpractice Lawsuit

April 22, 2011

The Ohio Supreme Court has ruled that a cancer patient may pursue an emotional distress claim that alleges a faulty diagnosis let undetected cancer spread.

The court upheld an appellate court decision in a lawsuit filed by Lonna Loudin in northeast Ohio’s Summit County. Justices say the claim is based on physical injury and may be pursued as part of a medical malpractice lawsuit.

The suit seeks damages from Radiology & Imaging Services and Dr. Richard Patterson, who Loudin believes misdiagnosed the results from a mammogram. A year after the medical practitioners had deemed the results of the mammogram to be normal, Loudin found a lump in her breast that was later confirmed to be cancerous.

“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,” according to documents released by the Ohio Supreme Court.

The defendants moved to have the lawsuit dismissed, saying damages could not be granted for the claim. A lower court agreed. It said the growth or spread of cancer was not recognized in Ohio as a physical injury that would support a medical negligence claim.

On appeal, the 9th District Court of Appeals reversed the lower court’s decision. The defendants appealed to the state Supreme Court.

In the Supreme Court’s 7-0 decision affirming the 9th District’s ruling, Justice Yvette 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.”

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.

The case is: 2010-0297. Loudin v. Radiology & Imaging Servs., Inc., Slip Opinion No. 2011-Ohio-1817. Summit App. No. 24783, 185 Ohio App.3d 438, 2009-Ohio-6947.

Sources: Associated Press, Ohio Supreme Court

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