Rothstein v. Montefiore Home
| Decision Date | 23 December 1996 |
| Docket Number | No. 70114,70114 |
| Citation | 689 N.E.2d 108,116 Ohio App.3d 775 |
| Parties | ROTHSTEIN, Appellant, v. MONTEFIORE HOME, Appellee. Eighth District, Cuyahoga County |
| Court | Ohio Court of Appeals |
William M. Fumich, Cleveland, for appellant.
Weston, Hurd, Fallon, Paisley & Howley and Warren Rosman, Cleveland, for appellee.
On March 28, 1995, appellant Betty E. Rothstein, individually and as executor of the estate of Benjamin Rothstein, filed an action against appellee, the Montefiore Home ("the Home"), alleging claims of invasion of privacy of both the estate and Betty Rothstein and violation of the Ohio Patient's Bill of Rights, R.C. 3721.10 et seq., as well as unnamed federal regulations.
Appellant's complaint avers that Betty Rothstein, as spouse and attorney in fact for Benjamin Rothstein, applied for admission to the Home and in so doing disclosed medical information regarding Benjamin Rothstein and financial information regarding both Benjamin and Betty Rothstein. It also states that Benjamin Rothstein was placed upon a waiting list for admission to the Home and that he died prior to entry. It further states that the Home released the financial information to Barbara Caplin, Benjamin Rothstein's daughter and Betty Rothstein's stepdaughter. The complaint additionally alleges special damages of the estate incurred in defending a will contest brought as a result of the release of information to Caplin.
On June 5, 1995, the Home moved to dismiss the claims of the estate and the claims under the Patients' Bill of Rights pursuant to Civ.R. 12(B)(6). On September 7, 1995, the court granted the motion to dismiss without comment. On October 23, 1995, the Home moved for summary judgment on the claims of Betty Rothstein. On December 24, 1995, the court granted the motion for summary judgment without comment.
Appellant's second assignment of error states:
"The trial court erred in granting defendant/appellee's motion to dismiss the claims relating to plaintiff/appellant's capacity as executrix of the estate of Benjamin Rothstein."
Appellant's second assignment of error will be addressed first. The complaint is not separated into counts; however, it presents four claims against the Home: (1) a claim of invasion of privacy of the estate of Benjamin Rothstein, (2) a claim of invasion of privacy of Betty Rothstein, (3) a claim under the Patients' Bill of Rights, R.C. 3721.10 et seq., and unnamed federal regulations for the estate, and (4) a claim under the Patients' Bill of Rights as well as unnamed federal regulations for Betty Rothstein.
The Home moved to dismiss claims of the estate for invasion of privacy based upon the proposition that an estate cannot maintain such an action, citing Leach v. Shapiro (1984), 13 Ohio App.3d 393, 13 OBR 477, 469 N.E.2d 1047; Lambert v. Garlo (1985), 19 Ohio App.3d 295, 19 OBR 467, 484 N.E.2d 260; and Young v. That Was The Week That Was (N.D.Ohio 1969), 312 F.Supp. 1337. It also moved to dismiss the claims of the estate and Betty Rothstein under the Patient's Bill of Rights, R.C. 3721.10 et seq., based upon the fact that Benjamin Rothstein was not a patient of the Home and thus the Act did not apply.
Civ.R. 12(B) provides in part:
It is well established that in ruling upon a Civ.R. 12(B)(6) motion, only statements contained within the pleadings are to be considered. Wilson v. Patton (1988), 49 Ohio App.3d 150, 155, 551 N.E.2d 625, 630.
Appellant alleges that the estate suffered damages as a result of the release of the Rothsteins' financial information to Caplin and that the release was an invasion of its privacy. Ohio first recognized the tort of invasion of privacy in Housh v. Peth (1956), 165 Ohio St. 35, 59 O.O. 60, 133 N.E.2d 340. Paragraph two of the syllabus in Housh states:
"An actionable invasion of the right of privacy is the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities." (Emphasis added.)
This definition tracks three of the four branches of the tort of invasion of privacy as outlined in the Restatement of the Law 2d, Torts (1977), Section 652A. At issue in this case is the branch of the tort known as the intrusion upon another's seclusion.
In Sustin v. Fee (1982), 69 Ohio St.2d 143, 23 O.O.3d 182, 431 N.E.2d 992, the Supreme Court defined the scope of liability for intrusion into another's seclusion:
"One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." 69 Ohio St.2d at 145, 23 O.O.3d at 184, 431 N.E.2d at 993-994, quoting Restatement of the Law 2d, Torts (1977), Section 652B.
In Young v. That Was The Week That Was, the district court, applying Ohio law, held that the tort of invasion of privacy was personal and that the estate of a woman satirized on a television show could not bring an action "unless there is some unwarranted disclosure or exploitation of the private affairs or personality of the complaining party himself." (Emphasis sic.) 312 F.Supp. at 1340. Since Young, Ohio courts have held that the tort action for invasion of privacy is personal and cannot be brought by the estate. Lambert v. Garlo; Leach v. Shapiro, supra; see, also, Arnold v. Am. Natl. Red Cross (1994), 93 Ohio App.3d 564, 580-581, 639 N.E.2d 484, 495 (); Restatement of the Law 2d, Torts (1977), Section 652I ().
The action for invasion of privacy compensates the victim for "mental suffering, shame or humiliation." Housh, supra; see, also, Restatement of the Law 2d, Torts (1976), Section 652H. As an estate is not a living person, it cannot suffer these damages. The court properly dismissed the estate's claim of invasion of privacy.
The complaint also alleges violations of the Patients' Bill of Rights, R.C. 3721.10 et seq. A resident of a home is entitled to:
"The right to confidential treatment of personal and medical records, and the right to approve or refuse the release of these records to any individual outside the home, except in case of transfer to another home, hospital, or health care system, as required by law or rule, or as required by a third-party payment contract." R.C. 3721.13(A)(10).
This right is enforceable through a civil action by "any resident." R.C. 3721.17(I). A resident is defined as "a resident or patient of a home." R.C. 3721.10(B). The complaint states that Benjamin Rothstein was on a waiting list for entry to the Home. It is clear from the face of the complaint that he did not reside in the Home. The statutory right of action has been granted only to residents. R.C. 3721.10(B); see, e.g., Welch v. Brown's Nursing Home (1984), 20 Ohio App.3d 15, 17, 20 OBR 16, 17-18, 484 N.E.2d 178, 180, fn. 1 (). Similarly, the federal regulations cited by appellant are for the benefit of residents of homes. Appellant has not demonstrated that the estate or Betty Rothstein is entitled to maintain a cause of action.
The court properly granted appellee's motion to dismiss the claims of the estate, as it cannot maintain an action for invasion of privacy and the claims under R.C. 3721.10 et seq., because Benjamin Rothstein was not a resident of the Home. Appellant's second assignment of error is overruled.
Appellant's first assignment of error states:
"The trial court erred in granting defen...
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