Kremer v. Cox, s. 17370 and 17394

• Decision Date: 11 September 1996
• Docket Number: Nos. 17370 and 17394,s. 17370 and 17394
• Citation: 114 Ohio App.3d 41,682 N.E.2d 1006
• Parties: KREMER, Appellant and Cross-Appellee, v. COX, Appellee and Cross-Appellant; State Medical Board of Ohio, Intervenor. *
• Court: Ohio Court of Appeals

Page 41

114 Ohio App.3d 41

682 N.E.2d 1006

KREMER, Appellant and Cross-Appellee, v. COX, Appellee and Cross-Appellant State Medical Board of Ohio, Intervenor. ^*

Nos. 17370 and 17394.

Court of Appeals of Ohio Ninth District, Summit County.

Decided Sept. 11, 1996.

Roderick, Myers & Linton and Lawrence R. Bach, Akron, for appellant and cross-appellee.

A. William Zavarello Co., L.P.A., and A. William Zavarello, Akron, for appellee and cross-appellant.

Lisa M. Fromm, Summit County Assistant Prosecuting Attorney, Akron, for appellee and cross-appellant.

Betty D. Montgomery, Attorney General, and Anne Berry Strait, Assistant Attorney General, Health and Human Services Section, Columbus, for intervenor, State Medical Board of Ohio.

BAIRD, Judge.

The parties to this case, Dr. Richard M. Kremer and Dr. William A. Cox, and his corporation, WAC M.D., Inc. (collectively, "Cox"), present their appeals from the decision rendered in the Summit County Court of Common Pleas. The State Medical Board of Ohio ("SMBO") also appears as a party herein, but only with respect to one assignment of error raised by Kremer. The Summit County Prosecutor's Office has also appeared, since one of Kremer's assignments of error involves Cox's actions in his capacity as Summit County Coroner.

Kremer was the chief surgeon at St. Thomas Hospital in Akron, Ohio. Cox also practiced at that facility, as the chief of pathology. Cox was also the Summit County Coroner. Cox testified that he had been subjected to pressure by Kremer and other medical and administrative personnel to (a) cease his investigation into the death of one of Kremer's patients and (b) implement a training program for pathology residents using the county coroner's facilities. Cox testified that he reported the pressures to the Summit County Prosecutor's Office. That office, which represented Cox only in his capacity as Summit County Coroner, conducted an investigation. Fred Zuch, a member of the prosecutorial staff, testified that, although he had a meeting with several hospital officials regarding Cox's concerns, no charges were ever filed.

Cox claimed that, when he refused to comply with the demands made by the administrative staff of the Summa Health Corporation, which employed him, he was subjected to harassment, increased working hours, decreased salary, threats, and termination. When St. Thomas Medical Center merged with Akron City Hospital (the combined entity was known as the Summa Health Corporation), Cox was removed as chief of pathology and, eventually, terminated from his hospital position altogether.

Prior to leaving the hospital, Cox, in his capacity as coroner, received a report from a St. Thomas physician ¹ that one of Kremer's patients had died after surgery. In addition, a television reporter provided Cox with a copy of a report from the SMBO that indicated that another patient of Kremer's had died of excessive blood loss. ² After reviewing the SMBO's report, Cox changed that patient's death certificate, and notified the patient's next of kin that he believed Kremer had not accurately reported the cause of death.

Cox, still acting as coroner, also decided to have an outside expert review three other cases of Kremer patients who had died. Cox stated that this was standard procedure when he was personally acquainted with the primary physician. He announced these intentions in an article reported in the Akron newspaper. Only two of the three cases were actually sent out for review. In his letter to the reviewing physician, Cox indicated that he specifically was questioning anesthetic care, surgical technique, and postsurgery patient management. The outside examiner charged only $125 for the review of both cases, considered by other physicians to be a very low fee. The examiner could not determine that Kremer had committed any errors. The investigations by both Cox and the SMBO were the subject of significant media exposure.

Cox received a written notice from Summa indicating that he would be terminated from his position as a pathologist due to the consolidation of the two hospitals. Cox requested that Summa reconsider this decision; his request was denied. On June 28, 1993, Cox filed a civil suit against Summa, Kremer, and several other physicians and administrators. In the complaint, Cox alleged that Summa, and various Summa personnel including Kremer, had committed a number of offenses against him, and sought an injunction against his termination. Again, there was significant publicity. A temporary injunction was granted. Cox settled that lawsuit after thirty-eight days; although Kremer did not contribute to the settlement, the case against him was dismissed. ³

After Cox had dismissed his suit, on November 23, 1993, Kremer filed suit against Cox, both individually and in his capacity as coroner. Kremer's complaint included counts of defamation, malicious prosecution, abuse of process, abuse of authority, negligent infliction of emotional distress, and intentional infliction of emotional distress. Generally, the complaint alleged that, as a result of Cox's actions, Kremer had suffered humiliation, damage to his reputation, the loss of his practice, and a loss of income.

Kremer attempted to subpoena the attorneys who had filed Cox's suit, as well as Fred Zuch, the assistant prosecutor who had testified at a hearing while that suit was pending regarding the steps taken by the prosecutor's office on behalf of the coroner. Kremer also attempted to subpoena certain records and representatives from the SMBO. After a request by Cox and the Summit County Prosecutor's Office, the trial court quashed Kremer's subpoenas and granted protective orders to Zuch and Cox's civil attorneys, Paige Martin and A. William Zavarello.

Cox then moved for summary judgment on each count of the complaint. After responses from Kremer and other filings by the prosecutor's office and the SMBO, the trial court granted summary judgment to Cox on all counts except the alleged abuse of process. That charge proceeded to trial, where a jury awarded Kremer $10,000 in compensatory damages and $80,000 in punitive damages. Both Cox and Kremer now appeal; each presents three assignments of error. We first discuss the assignments of error presented by Cox and then move to a discussion of Kremer's assignments of error.

A. COX'S ASSIGNMENTS OF ERROR

Cox presents three assignments of error. In his first two assignments of error, pertaining to the abuse of process claim tried below, Cox avers that the trial court (1) erred in not dismissing the claim pursuant to Cox's motions for summary judgment regarding both the claim itself and Kremer's damages and (2) erred in not granting a directed verdict for Cox on the claim itself, as well as with respect to Kremer's damages.

In these assignments of error, Cox alleges that the trial court committed error in denying summary judgment. However, even if such an error was committed, it would be harmless in this instance. Errors in denying summary judgment are not reversible where the matter eventually proceeds to trial and is resolved in favor of the nonmoving party:

"We hold that any error by a trial court in denying a motion for summary judgment is rendered moot or harmless if a subsequent trial on the same issues raised in the motion demonstrates that there were genuine issues of material fact supporting a judgment in favor of the party against whom the motion was made." Continental Ins. Co. v. Whittington (1994), 71 Ohio St.3d 150, 156, 642 N.E.2d 615, 619. Insofar as they relate to the motions for summary judgment, then, Cox's first two assignments must be overruled, since he could not be awarded relief even if error were present.

Cox's first two assignments of error also allege that the trial court erred in failing to direct verdicts for Cox (1) on the claim itself and (2) with respect to the proximate cause of Kremer's damages. However, the record reveals that although Cox made these motions at the close of Kremer's case-in-chief, ⁴ at which time they were denied, he failed to renew them at the close of all the evidence. Therefore, Cox waived his right to assert the denial of a directed verdict on appeal. Chem. Bank of New York v. Neman (1990), 52 Ohio St.3d 204, 206-207, 556 N.E.2d 490, 492-494. Accordingly, Cox's first two assignments of error are overruled.

Cox's third assignment of error alleges that the trial court erred in denying his motion for a new trial pursuant to Civ.R. 59(A)(6) and (7), which was premised upon the grounds that the jury's verdict was against the manifest weight of the evidence and contrary to law. We first consider the claim that the verdict was contrary to law.

The claim that proceeded to trial was one for alleged abuse of process by Cox. Abuse of process consists of three elements: (1) a legal proceeding has been set in motion in proper form and with probable cause, (2) the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed, and (3) direct damage has been incurred by a party as a result of the abuse. Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A. (1994), 68 Ohio St.3d 294, 298, 626 N.E.2d 115, 118.

According to Kremer, Cox had included Kremer in Cox's suit against Summa for the "ulterior purpose" of causing him embarrassment and humiliation. Kremer claims that, as a result of Cox's suit and the statements made in Cox's complaint, his reputation and practice have been damaged.

Cox's suit was in existence for only thirty-eight days; Kremer, although included in the complaint as a defendant, was dismissed prior to the other defendants. In his complaint, Kremer is clear that the only act about which he is complaining is the filing of the Cox's complaint itself: "[Cox's] act in filing the civil lawsuit against the Plaintiff was a willful and improper use of process[.]"

It is clear, though, that Kremer, as a matter of law, was not entitled to relief...