Anderson v. St. Francis-St. George Hosp.

• Decision Date: 18 November 1992
• Docket Number: No. C-910574,FRANCIS-ST,C-910574
• Parties: ANDERSON, ADMR., Appellant, v. ST.GEORGE HOSPITAL, Appellee. *
• Court: Ohio Court of Appeals

Page 221

83 Ohio App.3d 221

614 N.E.2d 841

ANDERSON, ADMR., Appellant, v. ST. FRANCIS-ST. GEORGE HOSPITAL, Appellee. ^*

No. C-910574.

Court of Appeals of Ohio, First District, Hamilton County.

Decided Nov. 18, 1992.

William C. Knapp, Cincinnati, for appellant.

Dinsmore & Shohl, Deborah R. Lydon, John E. Schlosser and Sara Simrall Rorer, Cincinnati, for appellee.

SHANNON, Presiding Judge.

Plaintiff-appellant, Keith Anderson, Esq., the administrator of the estate of Edward H. Winter, takes this appeal from the summary judgment entered against him in the Hamilton County Court of Common Pleas. In that court, appellant sued defendant-appellee, St. Francis-St. George Hospital ("SFSG"), claiming that it was liable for harm to Winter during his hospital stay at SFSG. Appellant advanced alternative, nonexclusive legal theories: battery, negligence, and "wrongful living." In the course of lengthy pretrial proceedings, SFSG made a motion for summary judgment on two grounds. SFSG's first assertion was that appellant had not stated a claim on which relief could be granted. In the alternative, SFSG claimed that even if appellant had stated viable causes of action, there were no genuine issues of material fact remaining in the case. The trial court agreed with SFSG and granted summary judgment. On appeal, in a single assignment of error, appellant advances an umbrella claim--that is, the trial court erred by holding that, in Ohio, there is no cause of action for wrongful administration of life-prolonging medical treatment. For the reasons that follow, we affirm the judgment of the trial court in part, reverse in part, and remand for further proceedings.

In appellant's original November 17, 1989 complaint, he alleged that on May 25, 1988, Winter was admitted to SFSG suffering chest pain. After initial treatment in the emergency room, Winter was given additional care in the hospital's coronary unit. Appellant further alleged that Winter had a discussion with his family and his private physician, Dr. Russo, about the type of treatment that he was to receive while at SFSG. In addition, there is evidence to show that as a result of that discussion, Dr. Russo entered the instruction in the hospital record: "No Code Blue." In his complaint, appellant claimed that the no-code-blue entry indicated that Dr. Russo specifically instructed that Winter not be resuscitated.

On May 28, 1988, during Winter's subsequent treatment at SFSG, he suffered a ventricular fibrillation. Appellant alleged that, despite Dr. Russo's instructions, a nurse resuscitated Winter by shocking his heart with an electric current. Appellant further maintained that the nurse's resuscitation prevented Winter's natural death. Appellant claimed that the nurse's act of resuscitation was a battery to Winter. Appellant also asserted that the nurse was negligent by resuscitating Winter contrary to Dr. Russo's orders. Finally, appellant maintained that, by keeping Winter alive, SFSG caused him "great pain, suffering, emotional distress and disability" as well as medical and other financial expenses.

Civ.R. 56(C) provides that a motion for summary judgment shall be granted when the "pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact * * * show that there is no genuine issue as to any material fact."

When a party makes a motion for summary judgment, that person bears the burden of showing that there is no genuine issue of a material fact. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 114, 526 N.E.2d 798, 801. To meet that burden, the moving party need not actually present evidence that no dispute remains, it must merely point out that no evidence has been produced to support the nonmoving party's claim. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 324, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265, 274 (adopted by the Ohio Supreme Court in Wing v. Anchor Media, Ltd. of Texas [1991], 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus). By way of contrast, for the nonmoving party to escape a summary judgment, it must produce some evidence that a dispute remains on a material fact of the case. Wing, supra, at 111, 570 N.E.2d at 1099. The trial court does not decide the truth of any disputed matter; however, if there is a genuine issue of a material fact, it should not grant a motion for summary judgment. Mitseff, supra, 38 Ohio St.3d at 116, 526 N.E.2d at 802.

A motion for summary judgment may also be used as a substitute for Civ.R. 12(B)(6) to dismiss a claim on which relief cannot be granted. Watkins v. Teater (1983), 11 Ohio App.3d 103, 106, 11 OBR 156, 159, 463 N.E.2d 407, 410. When Civ.R. 56(C) is used as a Civ.R. 12(B)(6) substitute, the court will not determine if there are facts in dispute. Instead, the court will determine if there is any set of facts that the plaintiff could prove that would entitle him to relief. O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 245, 71 O.O.2d 223, 224, 327 N.E.2d 753, 755. The court will grant the motion only if proof of the allegations in the complaint would still not entitle plaintiff to recovery. Id., syllabus.

Concerning the substantive law of this dispute, the rule is that a person commits a battery when he unlawfully strikes or touches another. Green v. Drungold (1950), 60 Ohio Law Abs. 445, 447, 101 N.E.2d 906, 908. In a medical setting, when a physician treats a person without consent, the doctor has committed a battery. Leach v. Shapiro (1984), 13 Ohio App.3d 393, 395, 13 OBR 477, 479, 469 N.E.2d 1047, 1051. Moreover, under the doctrine of respondeat superior, any person who controls the physician in a principal-agent relationship is liable for unlawful acts by the physician that are within the scope of that relationship. Klema v. St. Elizabeth's Hosp. (1960), 170 Ohio St. 519, 527, 11 O.O.2d 326, 330, 166 N.E.2d 765, 771.

In contrast, a physician's acts are lawful when the patient expressly consents prior to medical treatment. Leach, supra, 13 Ohio App.3d at 395, 13 OBR at 479, 469 N.E.2d at 1051. Medical treatment also will be lawful under the doctrine of implied consent when a medical emergency requires immediate action to preserve the health or life of the patient. Leach, supra, 13 Ohio App.3d at 395, 13 OBR at 479, 469 N.E.2d at 1052, citing Wells v. Van Nort (1919), 100 Ohio St. 101, 125 N.E. 910. A potential patient may, however, expressly refuse treatment. Leach, supra, 13 Ohio App.3d at 397, 13 OBR at 481, 469 N.E.2d at 1053. If so, even in an emergency, any medical treatment is a battery. Id. at 396, 13 OBR at 480, 469 N.E.2d at 1052.

In this case, disputed questions of fact remain concerning a potential battery to appellant's decedent. The finder of fact must make a determination on the issue of consent. There is evidence that decedent expressly refused treatment in a code-blue situation. Also, there is evidence that defibrillation was within the ambit of Dr. Russo's no-code-blue instruction. Therefore, a trier of fact must determine both the existence and nature of decedent's refusal. Leach, supra, 13 Ohio App.3d at 397, 13 OBR at 481, 469 N.E.2d at 1053. If decedent's instructions specifically precluded the treatment given, SFSG committed a battery. Id.

To determine the extent of possible legal liability in a battery, the trier of fact must determine what harm was proximately caused by the defendant's wrongful act. In intentional torts, such as battery, the defendant is liable for all harms that are proximately caused by the wrongful act. Allstate Fire Ins. Co. v. Singler (1968), 14 Ohio St.2d 27, 43 O.O.2d 43, 236 N.E.2d 79, syllabus (trespasser as intentional tortfeasor liable for all proximately caused harm). Later harms are proximately caused by the wrongful act if, first, they are part of a natural unbroken sequence resulting from the act, Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 287, 21 O.O.3d 177, 180, 423 N.E.2d 467, 469, and, second, if there is no superseding event that caused the harms, Cascone v. Herb Kay Co. (1983), 6 Ohio St.3d 155, 6 OBR 209, 451 N.E.2d 815, paragraph one of the syllabus, and fn. 1.

That later event is a superseding cause if it is not reasonably foreseeable. Id. In contrast, if the later cause were a "probable consequence" that was "set in motion" by the original wrongful act, it is reasonably foreseeable and not a superseding cause. Mudrich v. Standard Oil Co. (1950), 153 Ohio St. 31, 38-39, 41 O.O. 117, 120-121, 90 N.E.2d 859, 863; Mouse v. Cent. Savings & Trust Co. (1929), 120 Ohio St. 599, 606, 167 N.E. 868, 870.

For instance, if a delivery person negligently spills gasoline on the ground near a service station, that wrongdoer is liable for all proximately caused harm that results from the original act. Mudrich, supra, 153 Ohio St. at 37-38, 41 O.O. at 120-121, 90 N.E.2d at 863. Subsequent to the delivery person's negligence, if a child lights the pools of gasoline with a match, the second act also will be a cause of later harm. Id. at 38, 41 O.O. at 120, 90 N.E.2d at 863 (multiple causes for single injury). Moreover, the child's act may become a superseding cause of later harm. Id.; Cascone, supra, 6 Ohio St.3d at 159, 6 OBR at 212, 451 N.E.2d at 819. The act of lighting matches is a "new and independent cause" that supersedes the original act if it is not a foreseeable consequence of the first negligent act. Mudrich, supra, 153 Ohio St. at 39, 41 O.O. at 121, 90 N.E.2d at 863; see, also, Strother, supra, 67 Ohio St.2d at 288, 21 O.O.3d at 181, 423 N.E.2d at 471 (later foreseeable consequence is not superseding).

In this case, the record shows that decedent had damages after the defibrillation. Specifically, appellant claims that those damages were a paralyzing stroke as well as pain, suffering, emotional distress and disability, and medical expenses. Therefore, another genuine issue of material...