Gallimore v. Children's Hosp. Med. Ctr.

• Decision Date: 15 September 1993
• Docket Number: No. 92-823,92-823
• Parties: GALLIMORE, Appellee, v. CHILDREN'S HOSPITAL MEDICAL CENTER, Appellant.
• Court: Ohio Supreme Court

Page 244

67 Ohio St.3d 244

617 N.E.2d 1052

GALLIMORE, Appellee, v. CHILDREN'S HOSPITAL MEDICAL CENTER, Appellant.

No. 92-823.

Supreme Court of Ohio.

Submitted April 20, 1993.

Decided Sept. 15, 1993.

SYLLABUS BY THE COURT

1. A parent may recover damages, in a derivative action against a third-party tortfeasor who intentionally or negligently causes physical injury to the parent's minor child, for loss of filial consortium. Consortium includes services, society, companionship, comfort, love and solace.

2. In Ohio, a minor child has a cause of action for loss of parental consortium against a third-party tortfeasor who negligently or intentionally causes physical injury to the child's parent. Consortium includes society, companionship, affection, comfort, guidance and counsel. (High v. Howard [1992], 64 Ohio St.3d 82, 592 N.E.2d 818, overruled.)

Appellee Jo Ann Gallimore, individually and on behalf of her minor son, Joshua Best, filed an action in the Court of Common Pleas of Hamilton County against appellant, Children's Hospital Medical Center ("CHMC"). Appellee claimed that in January 1985, CHMC, through its employees, negligently administered to Joshua, her eleven-month-old infant, a massive overdose of the ototoxic drug gentamicin, causing Joshua to become permanently and profoundly deaf in both ears.

In her amended complaint, appellee sought recovery for Joshua against CHMC for the damages Joshua sustained as a result of the alleged negligence. Appellee also sought recovery on her own behalf for the damages she sustained as a result of Joshua's injuries, including the loss of the "consortium" of her child. ¹

Following a lengthy jury trial, the jury returned separate verdicts in favor of appellee individually and on behalf of Joshua. For Joshua, the jury awarded $585,993 in special, or economic, damages and $200,000 in general, or noneconomic, damages. For appellee's individual claim, the jury awarded $200,000 in general damages for appellee's loss of the "society" of her child, and $75,000 in special damages for the value of additional care and attendance required to be provided by appellee to Joshua as a result of CHMC's negligence. ² The separate general damage awards were each limited to $200,000 as the trial court, applying R.C. 2307.43, specifically instructed the jury not to return an award of general damages exceeding that amount. In accordance with the jury's verdicts, the trial court entered judgment in favor of appellee and against CHMC for $1,063,993. ³

CHMC appealed to the court of appeals, arguing, among other things, that the trial court erred in permitting appellee to recover general damages for loss of filial society. CHMC claimed that Ohio does not recognize the right of a parent to recover damages for loss of the society of a non-fatally injured child. The court of appeals rejected this argument and each of CHMC's assignments of error with the exception of one pertaining to an award of prejudgment interest. With respect to a cross-appeal filed by appellee challenging the constitutionality of R.C. 2307.43, the court of appeals, following Morris v. Savoy (1991), 61 Ohio St.3d 684, 576 N.E.2d 765, held that R.C. 2307.43 was unconstitutional. ⁴ Accordingly, the court of appeals affirmed the trial court's judgment in part, reversed it in part, and remanded the cause to the trial court for an assessment of damages without regard to the invalid general (noneconomic) damage limitation provisions of R.C. 2307.43. ⁵

The cause is now before this court pursuant to the allowance of a motion to certify the record.

William H. Blessing and W.B. Markovits, Cincinnati, for appellee.

Dinsmore & Shohl, Frank C. Woodside, III, Deborah R. Lydon, John E. Schlosser and Sara Simrall Rorer, Cincinnati, for appellant.

McLaughlin, McNally & Carlin, and Clair M. Carlin, Youngstown, urging affirmance for amicus curiae, Ohio Academy of Trial Lawyers.

DOUGLAS, Justice.

We have granted jurisdiction in this case on only one issue of law. The question before us is whether the parents of a minor child who is injured by a third-party tortfeasor may recover damages in a derivative action for loss of filial consortium. In this context, loss of "consortium" would include the parent's loss of the services, society, companionship, comfort, love and solace of the injured child. We are convinced that the right to recover for such a loss has existed in Ohio for some time and, today, we expressly recognize that such losses are compensable in Ohio. Accordingly, we affirm the judgment of the court of appeals on this question.

Ohio has long recognized the right of a parent to maintain a derivative action against a third-party tortfeasor who injures the parent's minor child. See, e.g., Grindell v. Huber (1971), 28 Ohio St.2d 71, 57 O.O.2d 259, 275 N.E.2d 614, and Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 49 O.O.2d 435, 254 N.E.2d 10. See, also, Norvell v. Cuyahoga Cty. Hosp. (1983), 11 Ohio App.3d 70, 11 OBR 120, 463 N.E.2d 111. We have held that the parent may maintain the action for the child's medical expenses, and for the parent's loss of the child's "services." Grindell, supra, at paragraph one of the syllabus; Whitehead, supra, at paragraph three of the syllabus. However, none of our cases has specifically limited the parent's right to maintain the derivative action to recovery of losses of only a pecuniary nature.

In Clark v. Bayer (1877), 32 Ohio St. 299, a grandfather, standing in loco parentis to his two infant grandchildren, brought suit against the children's abductors, claiming that the tortfeasors had wrongfully deprived him of the "possession" and "services" of the children. The plaintiff-grandfather alleged that he had expended time and money to recover "possession" of the children and had borne the expenses of nursing them back to health. Plaintiff did not aver in his complaint that he was deprived of any actual services, or that the infant children were capable of rendering valuable services. Nevertheless, the court in Clark held, as to loss of "services," that the plaintiff had alleged facts sufficient to maintain the claim. Id. at paragraph four of the syllabus. In the text of the opinion, the court stated:

"At common law, a parent has an action for the seduction of his child, to whose services he is entitled. Analogous to the injury occasioned by seduction, is that of the abduction of a minor child from its father, or one having it in lawful charge. To recognize the doctrine that one standing in loco parentis, clothed with the lawful custody of an infant under five years old, has no legal capacity to sue or maintain an action for damages, either general or special, against the child thief, would be an unwarranted restriction upon the common-law rights of the citizen. It would be no less restrictive, to hold that no action can be maintained for such course, by reason of the fact that the infant, because of its tender years, is unable to render any valuable services. The action rests upon the right to service, and not upon actual services.

" * * *

"On demurrer, an averment that the wrongful act complained of was done to deprive plaintiff of the services of the minors, without averring their ability to serve him, or the nature of the services of which he was deprived, is sufficient on the question of per quod servitium amisit.

" * * *

"The right to the custody of the infants, and their services as an incident thereto, is the gravamen of the action. Actual loss of services is not an essential allegation to enable plaintiff to maintain his action.

"But whether damages, other than compensatory, may be recovered, we do not say, for the reason that such question is not necessarily before us now for determination." (Emphasis added.) Id. at 311-313.

Appellee suggests that Clark supports the proposition that this court has historically recognized the right of a parent to pursue recovery for nonpecuniary losses such as loss of society and companionship arising from a tortfeasor's conduct which affects the parent-child relationship. In this regard, the court in Clark did recognize a "parental" right to maintain a general damage claim based upon "the right to service," despite acknowledging that the infant children were incapable of rendering valuable services. Thus, the only "services" that the infant children could realistically have provided the plaintiff during the period of abduction were society, companionship, comfort, love and solace, i.e., elements of "consortium."

The case of Kane v. Quigley (1964), 1 Ohio St.2d 1, 30 O.O.2d 1, 203 N.E.2d 338, involved an action by minor children against a female "enticer" alleged to have wrongfully induced the children's father to abandon his family, thereby causing the children to be deprived of the father's affections, companionship and guidance. In Kane, this court stated that "[n]o right of consortium exists between a parent and child," and concluded that "[t]here is no legal right in a child to maintain such an action for alienation of affections since that cause of action is based upon the right of consortium." Id. at 3, 30 O.O.2d at 2, 203 N.E.2d at 339-340. In the case at bar, the issue is whether a parent may recover damages for the parent's loss of filial consortium premised upon a child's personal injuries--a situation markedly different from the issue addressed in Kane where the court refused to recognize an amatory action by minor children for their loss of a parent's affections. Thus, Kane has no precedential value in cases such as the one now before us where personal injuries are involved. Further, with regard to Kane, we are, in general, persuaded by the analysis of the issue as set forth in the dissents in Kane, supra, at 5-10, 30 O.O.2d at 3-6, 203 N.E.2d at 340-344 (Gibson, J., dissenting), and High v. Howard (1992), 64 Ohio St.3d 82, 86-96, 592 N.E.2d 818, 821-827 (Resnick, J., dissenting), and would apply and limit such...