Walker v. Firelands Community Hosp.

• Decision Date: 02 March 2007
• Docket Number: No. E-06-023.,E-06-023.
• Citation: 170 Ohio App.3d 785,869 N.E.2d 66,2007 Ohio 871
• Parties: WALKER et al., Appellants, v. FIRELANDS COMMUNITY HOSPITAL et al., Appellees.
• Court: Ohio Court of Appeals

869 N.E.2d 66

170 Ohio App.3d 785

2007-Ohio-871

WALKER et al., Appellants, v. FIRELANDS COMMUNITY HOSPITAL et al., Appellees.

No. E-06-023.

Court of Appeals of Ohio, Sixth District, Erie County.

Decided March 2, 2007.

Michael T. Murray, John T. Murray, Sandusky, and Steven C. Bechtel, for appellant Joanna Hayth.

James R. Knepp II, Toledo, and Paul D. Eklund, Cleveland, for appellees Firelands Community Hospital et al.

Jeanne M. Mullin, Sandusky, for appellee Patricia Lukas.

HANDWORK, Judge.

{¶ 1} In this third appeal of a class action,¹ appellant Joanna Hayth,² as the representative of the class, asserts that the following errors occurred in the proceedings below:

{¶ 2} "1. The trial court erred by granting summary judgment in favor of appellees on Count One (violation of statutes and regulations)."

{¶ 3} "2. The trial court erred by granting summary judgment in favor of appellees on Count Two (the common law tort of mishandling a corpse, body or fetus a.k.a. the right of sepulcher)."

{¶ 4} "3. The trial court erred by granting summary judgment in favor of appellees on Count Three (fraud by omission)."

{¶ 5} "4. The trial court erred by granting summary judgment in favor of appellees on Count Four (negligent infliction of emotional distress)."

{¶ 6} Hayth alleges that she had a miscarriage at appellee Firelands Community Hospital ("Firelands"), sometime between the years 1988 through 1996. She was told by her physician that the "fetus"³ of 20 weeks or less of gestation would be cremated. It is uncontroverted that during that period, it was hospital policy to dispose of all tissue by means of a tissue grinder or incineration. The tissue included the tissue of fetuses at or less than 20 weeks of gestation⁴ that were the result of a miscarriage or were stillborn.

{¶ 7} During that same time period, appellee Patricia Lukas was employed by Firelands as a histologist technician in the hospital's morgue. Lukas, for personal reasons based upon her religious beliefs, decided to keep intact fetal specimens in containers filled with formalin. She stored them on shelves used to retain tissue for teaching purposes. Approximately 88 specimens of fetal tissue were commingled in the same three containers for different time periods lasting up to ten years.

{¶ 8} The deposition testimony of both Mary Lloyd, a licensed medical technician, and Lukas revealed the procedure followed when the lab received any type of tissue specimen, including fetal tissue. Lukas would bring the specimens to the morgue, which is on the same floor as the histology room. The tissue specimens were preserved in containers of formalin or formaldehyde and labeled with, among other things, the patient's name and a hospital number. A pathologist would then remove sections of the specimen for analysis. The remaining tissue was returned to its container and stored on a shelf until such time that the pathologist told the technicians to dispose of that tissue. According to Lloyd, only small tissue specimens were disposed of by means of the tissue grinder. Larger specimens, such as intact fetuses, were supposed to be drained, bagged, and incinerated.

{¶ 9} In October 1996, Firelands learned that Lukas was storing the fetuses and terminated her employment. The fetuses were then destroyed pursuant to hospital policy.⁵ However, in November 1996, the media were made aware of Lukas's actions and reported the story in the newspaper, on the radio, and on television.

{¶ 10} In early 1997, this class action was commenced against Firelands and Lukas by women who had been treated for a miscarriage or had a stillborn fetus at Firelands during the relevant time period. In an amended complaint, appellant set forth the following claims: (1) violation of Ohio statutes and regulations governing unlawful possession of a dead body and those regulations governing the humane disposal of a fetus, (2) the common law tort of mishandling a body or corpse (appellant also added "fetus" in this claim), (3) fraud by omission (raised against Firelands only), (4) negligent infliction of emotional distress, (5) intentional infliction of emotional distress, and (6) a claim for punitive damages.

{¶ 11} The first two appeals of the case at bar involved class certification and did not, therefore, address the merits of appellant's claims. After our last remand of this cause to the trial court, Lukas filed a motion for a partial judgment on the pleadings and a motion for summary judgment on all counts in appellant's complaint. Firelands also filed a motion for a judgment on the pleadings on all counts in that complaint.

{¶ 12} On February 27, 2006, the trial court filed a lengthy decision in which it stated that it did not limit "its review to only the pleadings, but instead also reviewed the affidavits and other exhibits supplied by counsel." The court therefore rendered its opinion "in terms of a motion for summary judgment and not a judgment on the pleadings." The trial judge found that no genuine issue of material fact existed on counts 1 through 4, as listed above, and dismissed those claims with prejudice. The judge did, however, find that genuine issues of material fact existed on the question of whether the class members could recover on their claim based upon intentional infliction of emotional distress. Therefore, he denied the motion for summary judgment and the motions for a judgment on the pleadings with regard to the fifth (intentional infliction of emotional distress) and sixth (punitive damages) claims.

{¶ 13} Appellant filed a motion for reconsideration asking the court to, at the least, restore the claim based upon the common law tort of mishandling a body or corpse. Notably, appellant never questioned the trial court's treatment of the motions for a judgment or partial judgments on the pleadings as part and parcel of the motion for summary judgment. Furthermore, she does not argue on appeal that the trial court erred by, in essence converting the Civ.R. 12(C) motions to motions for summary judgment without informing the parties of its intention to do so. See Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 165-166, 63 O.O.2d 262, 297 N.E.2d 113 (a Civ.R. 12(C) motion for a judgment on the pleadings presents a question of law, therefore allowing a trial court to consider only the allegations in the pleadings unless the court informs the parties of its intent to convert the motion to one requesting summary judgment). Accordingly, we conclude that appellant's failure to address this issue in the lower court constituted waiver. See Minshall v. Cleveland Illum. Co., 11th Dist. No. 2004-L-156, 2006-Ohio-2241, 2006 WL 1214795, ¶ 19. Consequently, we shall utilize the standard employed by appellate courts in determining whether a trial court erred in granting summary judgment to the present case.

{¶ 14} Appellate courts review the grant of summary judgment de novo, applying the same standard used by the trial court. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Accordingly, an appellate court reviews the same evidence that was properly before the trial court. Am. Energy Servs., Inc. v. Lekan (1992), 75 Ohio App.3d 205, 208, 598 N.E.2d 1315. Summary judgment is proper if there is no genuine dispute of a material fact, so that the issue is a matter of law, and reasonable minds could come to but one conclusion, that being in favor of the moving party. Civ.R. 56(C); Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 364 N.E.2d 267.

{¶ 15} In her first assignment of error, appellant argues that the trial court erred in granting summary judgment in favor of Firelands and Lukas on the first count in her amended complaint. In that count, appellant alleged that appellees violated R.C. 1713.39 and 3701.341, as well as Ohio Adm.Code 3701-47-05, by using a tissue grinder to dispose of the fetus and/or by keeping the fetus commingled with others in containers.

{¶ 16} R.C. 1713.39 reads:

{¶ 17} "A person, association, or company, having unlawful possession of the body of a deceased person shall be jointly and severally liable with any other persons, associations, and companies that have had unlawful possession of such body, in any sum not less than five hundred nor more than five thousand dollars, to be recovered at the suit of the personal representative of the deceased."

{¶ 18} Because she argues that the viability of a fetus has nothing to do with her claims of emotional distress, appellant asserts that the trial court mistakenly relied on the definition of "viability" developed in Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, to determine whether the fetus in this cause could be considered the "body of a deceased person" within the meaning of R.C. 1713.39. We disagree.

{¶ 19} In interpreting a statute, words and phrases must be read in context "and construed according to the rules of grammar and common usage." R.C. 1.42. Words that have acquired a particular meaning, either "by legislative definition or otherwise, shall be construed accordingly." Id.; Hedges v. Nationwide Mut. Ins. Co., 109 Ohio St.3d 70, 2006-Ohio-1926, 846 N.E.2d 16, ¶ 24.

{¶ 20} Within the context of the present case, the trial court was required to decide whether a fetus of 20 weeks or less of gestation was a "person" within the meaning of R.C. 1713.39. In ascertaining this meaning, the court below could, therefore, consider the definition of "person" as developed in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, and its progeny.

{¶ 21} The specific issue addressed by the United States Supreme Court in Roe v. Wade was the constitutionality of a Texas statute that criminalized abortion. Id. at 116, 93 S.Ct. 705, 35 L.Ed.2d 147. In addressing this issue, the court was required to determine whether a fetus could be considered a "person" within the meaning of the Fourteenth Amendment to the United States Constitution...