Schlachet v. Cleveland Clinic Found.

• Decision Date: 30 May 1995
• Docket Number: No. 67569,67569
• Citation: 104 Ohio App.3d 160,661 N.E.2d 259
• Parties: SCHLACHET, Appellant, v. CLEVELAND CLINIC FOUNDATION, Appellee. *
• Court: Ohio Court of Appeals

Page 160

104 Ohio App.3d 160

661 N.E.2d 259

SCHLACHET, Appellant, v. CLEVELAND CLINIC FOUNDATION, Appellee. ^*

No. 67569.

Court of Appeals of Ohio,

Eighth District, Cuyahoga County.

Decided May 30, 1995.

Spangenberg, Shibley, Traci, Lancione & Liber, Dennis R. Lansdowne and John A. Lancione, Cleveland, for appellant.

Reminger & Reminger, James L. Malone and Clifford C. Masch, Cleveland, for appellee.

NAHRA, Judge.

In this medical malpractice action, plaintiff-appellant Alice Schlachet appeals from the trial court order which granted the motion for summary judgment filed by defendant-appellee Cleveland Clinic Foundation, thus terminating the action.

Suit was originally filed against appellee on April 14, 1992 by appellant and her husband, Sanford Schlachet. Mr. Schlachet subsequently died; thereafter, the trial court issued an order substituting appellant as administrator of Mr. Schlachet's estate as a party-plaintiff in the action. Appellant later amended the complaint. ¹

As originally filed, the complaint stated four claims for relief. The first claim alleged that appellee's employees were negligent in their treatment of Sanford Schlachet and that as a "direct and proximate result" of the negligence, Mr. Schlachet "suffered a loss of a chance of survival from * * * lung cancer."

The second claim for relief alleged that as a "direct and proximate result" of the negligence, Mr. Schlachet "suffered and will suffer extreme mental anguish and emotional upset." ²

The third claim for relief alleged that as a "direct and proximate result" of the negligence, Mr. Schlachet "suffered a loss of the remaining years of his normal life expectancy." ³

The fourth claim for relief alleged that as a "direct and proximate result" of the negligence, Mrs. Schlachet had suffered a loss of her husband's consortium and "extreme mental anguish and upset."

Appellee's answer admitted medical treatment of Mr. Schlachet during the relevant time period but denied the other pertinent allegations of the complaint. Appellee also raised as affirmative defenses failure to state a claim upon which relief could be granted and "contributing fault."

Following some discovery, appellee filed a motion for summary judgment. The following stipulations of fact were submitted to the trial court by the parties for purposes of appellee's motion:

"1. On August 28, 1990, Sanford Schlachet, deceased, while under the care and treatment of the physicians and staff at the Cleveland Clinic Foundation, had an x-ray taken of his chest.

"2. The x-ray taken on August 28, 1990, demonstrated a cancerous mass in the apical posterior segment of the right upper lobe of the right lung.

"3. The physicians and staff of the Cleveland Clinic Foundation negligently failed to diagnose the cancerous mass that was evident on the August 28, 1990, x-ray.

"4. On April 15, 1991, Sanford Schlachet, deceased, was under the care and treatment of the physicians and staff of the Cleveland Clinic Foundation.

"5. The chest x-ray was taken on April 15, 1991, which demonstrated a 3 cm. soft tissue mass in the apical posterior segment of the upper lobe of the right lung.

"6. A comparison of the chest x-ray taken on August 28, 1990, to the chest x-ray taken on April 15, 1991, demonstrates an increase in the size of the mass that the physicians and staff of the Cleveland Clinic Foundation negligently failed to diagnose on August 28, 1990.

"7. Pathology analysis of the adjacent nodes conducted on April 22, 1991, reported to show a Stage 3 adenocarcinoma on the right lung.

"8. The failure of the Cleveland Clinic to diagnose the cancerous mass in Sanford Schlachet's right lung on August 28, 1990, directly and proximately resulted in the loss of a twenty (20) to thirty (30) percent chance of survival."

In its motion for summary judgment, it was appellee's position that "as negligence has been stipulated * * *, the critical issue at bar is that of proximate cause." Appellee argued that the Ohio Supreme Court in Cooper v. Sisters of Charity, Inc. (1971), 27 Ohio St.2d 242, 56 O.O.2d 146, 272 N.E.2d 97, had disposed of the issue and, further, had explicitly refused to recognize a cause of action for "loss of [a] chance for survival." Appellee concluded that since appellant had not presented "any evidence whatsoever that, absent the conduct of the Cleveland Clinic, the * * * decedent had a probability of survival," appellant had failed to establish an essential element of a cause of action in medical malpractice, and that therefore, appellee was entitled to judgment as a matter of law.

Appellant filed a brief in opposition to appellee's motion. Therein, appellant admitted that, pursuant to Cooper v. Sisters of Charity, supra, appellant's first claim for relief "does not state a claim upon which relief can be granted." Appellant frankly stated that in pursuing the action, she was ultimately seeking the Supreme Court's jurisdiction in order to "revisit the antiquated and draconian Cooper case for the purpose of overruling Cooper and recognizing the claim for a loss of a chance to survive." Appellant indicated, however, that the trial court should not consider her admission to be applicable to her other claims for relief.

The trial court ultimately granted appellee's motion for summary judgment with respect to all of appellant's claims. ⁴ In its order, the trial court stated that Cooper was dispositive of appellant's "loss of a chance for recovery" claim for relief, applied to her second claim for emotional distress, and was also dispositive of her loss of consortium claim.

It is from this order that appellant appeals, presenting two assignments of error for this court's review.

I

Appellant's first assignment of error states:

"The trial court erred in granting the defendant-appellee's motion for summary judgment as to the first claim for relief set forth in plaintiff-appellant's amended complaint as the plaintiff-appellant set forth a valid medical negligence claim in which it was alleged that the defendant-appellee's admitted negligence directly and proximately caused plaintiff-appellant's decedent to suffer the loss of a less-than-even chance of survival."

In this assignment of error, appellant argues summary judgment for appellee was improper because she presented evidence to the trial court sufficient to establish each element of a medical malpractice claim.

Civ.R. 56(C) makes summary judgment proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 24 O.O.3d 1, 433 N.E.2d 615; Morris v. Children's Hosp. Med. Ctr. (1991), 73 Ohio App.3d 437 597 N.E.2d 1110. A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095.

The elements of a cause of action for medical malpractice were set forth in Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 75 O.O.2d 184, 346 N.E.2d 673, paragraph one of the syllabus, as follows:

"In order to establish medical malpractice, it must be shown by a preponderance of evidence that the injury complained of was caused by the doing of some particular thing or things that a physician or surgeon of ordinary skill, care and diligence would not have done under like or similar conditions or circumstances, or by the failure or omission to do some particular thing or things that such a physician or surgeon would have done under like or similar conditions and circumstances, and that the injury complained of was the direct and proximate result of such doing or failing to do some one or more of such particular things."

Appellant contends that she presented evidence to demonstrate each of the necessary elements, i.e., appellee's duty, its breach of that duty, and the resulting "injury," viz., the destruction of a twenty- to thirty-percent chance of survival for her decedent.

Appellant urges this court to consider Craig v. Chambers (1867), 17 Ohio St. 253, to determine that such an injury is legally recognized in this state. However, since according to Cooper, 27 Ohio St.2d at 250, 56 O.O.2d at 150, 272 N.E.2d at 102, the language upon which appellant relies in Craig was later "relegate[d] to obiter dictum " in Kuhn v. Banker (1938), 133 Ohio St. 304, 10 O.O. 373, 13 N.E.2d 242, appellant's arguments remain unpersuasive.

The law applicable to the facts of this case was set forth in Cooper at the syllabus, in which the court stated the following:

"In an action for wrongful death, where medical malpractice is alleged as the proximate cause of death, and plaintiff's evidence indicates that a failure to diagnose the injury prevented the patient from an opportunity to be operated on, which failure eliminated any chance of the patient's survival, the issue of proximate cause can be submitted to a jury only if there is sufficient evidence showing that with proper diagnosis, treatment and surgery, the patient probably would have survived." (Emphasis added.)

It is undisputed that appellant's evidence failed to establish that, absent the negligence of appellee, her decedent "probably" would have survived. Thus, pursuant to the law in this state as set forth in Cooper, she failed to present sufficient evidence to sustain an element of her claim. Williams v. Grant (1979), 65 Ohio App.2d 225, 19 O.O.3d 168, 417 N.E.2d 586; Moore v. Univ. of Cincinnati Hosp. (1994), 93 Ohio App.3d 616, 639 N.E.2d 798. Cf. Wells v. Miami Valley Hosp. (1993), 90 Ohio App.3d 840, 631 N.E.2d 642; Safranic v. Belany (1993), 89 Ohio App.3d 65, 623 N.E.2d 611; Lambert v. Shearer (1992), 84 Ohio App.3d 266, 616 N.E.2d 965. ⁵

Appellant attempts to overcome the application of Cooper to the facts of this case by contending that its holding is limited to the issue of proximate cause in a medical...