[Cite as Loudin v. Radiology & Imaging Servs., Inc., 128 Ohio St.3d 555, 2011-Ohio-1817.]
LOUDIN, APPELLEE, v. RADIOLOGY & IMAGING SERVICES, INC., ET AL.,
APPELLANTS.
[Cite as Loudin v. Radiology & Imaging Servs., Inc.,
128 Ohio St.3d 555, 2011-Ohio-1817.]
Damages for emotional distress stemming directly from a physical injury are to
be considered in a traditional medical-malpractice claim — Emotional
distress stemming directly from a physical injury is not a basis for an
independent cause of action for the negligent infliction of emotional
distress.
(No. 2010-0297 — Submitted January 18, 2011 — Decided April 20, 2011.)
APPEAL from the Court of Appeals for Summit County, No. 24783,
185 Ohio App.3d 438, 2009-Ohio-6947.
__________________
SYLLABUS OF THE COURT
1. Damages for emotional distress stemming directly from a physical injury are to
be considered in a traditional medical-malpractice claim.
2. Emotional distress stemming directly from a physical injury is not a basis for
an independent cause of action for the negligent infliction of emotional
distress.
__________________
MCGEE BROWN, J.
{¶ 1} This is an appeal from a judgment entered by the Ninth District
Court of Appeals finding that Lonna Loudin presented genuine issues of material
fact that would allow her medical-malpractice claims to survive summary
judgment. We affirm the judgment of the court of appeals and hold that damages
for emotional distress stemming directly from a physical injury are to be
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considered in a traditional medical-malpractice claim and that emotional distress
stemming directly from a physical injury is not the basis for an independent cause
of action for the negligent infliction of emotional distress.
Facts and Procedural History
{¶ 2} From 1997 through 2004, the appellee, Loudin, went to Reflections
Breast Health Center (“Reflections”), owned and operated by Radiology &
Imaging Services, Inc. (“Radiology”), to receive yearly mammograms. All of
Loudin’s mammograms during that time were interpreted as normal. This
included the mammogram conducted in 2003, which was reviewed by Dr.
Richard Patterson in April of that year.
{¶ 3} Loudin was persistent in monitoring herself for cancer because her
husband had died of lung cancer in 1981 and she wanted to ensure early detection
and treatment if she had cancer so that the same fate would not befall her. In the
spring of 2004, Loudin detected a lump in her left breast during self-examination
and was referred to Reflections for a diagnostic mammogram. The films from
Loudin’s May 2004 mammogram revealed a mass that was highly suggestive of
malignancy. According to expert witness testimony, the mass had grown from
one centimeter to approximately two centimeters between 2003 and 2004. Dr.
David B. Dellinger conducted a biopsy of the mass, and the pathology report
indicated that the mass was cancerous. With no additional factors present, a two-
centimeter cancerous mass constitutes Stage I cancer. Upon review of the
pathology report of the biopsy, Dr. Joseph Koenig, Loudin’s oncologist, informed
Loudin that her treatment plan would probably entail lymph-node dissection, a
lumpectomy, radiation therapy, and hormone therapy, but would most likely not
include chemotherapy if her lymph nodes tested negative for cancer. Dellinger
and Koenig recommended the dissection of nearby lymph nodes in order to
determine whether Loudin’s cancer had spread to other areas. Two of the eight
lymph nodes dissected tested positive for cancer. This additional factor advanced
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Loudin’s diagnosis to Stage IIA cancer. Loudin underwent a lumpectomy, eight
rounds of chemotherapy, and six weeks of radiation therapy and began hormone
therapy. At the time of her October 2005 deposition, Loudin’s cancer had not
recurred.
{¶ 4} Loudin initiated this action by filing a complaint asserting medical-
negligence claims against the defendants-appellants, Radiology & Imaging
Services, Inc., Radiology & Imaging Services, Inc., d.b.a. Reflections Breast
Health Center, and Dr. Richard D. Patterson.1 In her first claim for relief, Loudin
alleged that Radiology, as the employer and principal to its employee physicians,
including Patterson, had “caused and/or contributed to her injury.” In her second
claim for relief, Loudin alleged that Patterson had breached the required standards
of care when conducting Loudin’s regular screenings for breast cancer. In her
third claim for relief, Loudin alleged that Radiology had negligently failed to
supervise Patterson. Loudin alleged injuries in the form of a delayed diagnosis of
cancer, the progression of untreated carcinoma to Stage IIA breast cancer, the
“loss of chance for a better outcome,” emotional distress, acute physical, mental,
and emotional pain and suffering, and a loss of the ability to enjoy a normal life.
{¶ 5} In her claims for medical negligence, respondeat superior, and
negligent supervision, Loudin alleged that the appellants had breached the
required standard of care by failing to detect and commence treatment for her
cancer upon examination of her 2003 mammography films, which revealed a
visible one-centimeter mass. Upon being granted leave, Loudin amended her
complaint on March 5, 2009, to further allege that the appellants’ negligence had
led to the enlargement of her tumor, metastasis to her lymph nodes, and emotional
distress from the fear of an increased chance of recurrence of cancer.
1. Loudin first filed a complaint on April 14, 2005, but voluntarily dismissed the matter without
prejudice on March 16, 2007. On March 14, 2008, she refiled her complaint as permitted by R.C.
2305.19, which allowed her complaint to stay within the one-year statute of limitations applicable
to medical claims under R.C. 2305.113(A).
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{¶ 6} Loudin submitted the deposition testimony of radiologist Dr. Jules
H. Sumkin, who stated that the failure to detect her cancer in 2003 was a
deviation from the applicable standard of care and that Loudin’s tumor had
increased from one centimeter to two centimeters from 2003 to 2004. Loudin also
submitted the deposition testimony of an additional expert witness, Dr. Ronald
Citron, who stated that to a reasonable degree of medical certainty, the cancer
would not have been present in Loudin’s lymph nodes had she been correctly
diagnosed in 2003. With lymph nodes negative for cancer and a one-centimeter
cancerous tumor, Loudin still would have undergone a lumpectomy, radiation
therapy, and hormone therapy. However, with lymph nodes testing positive for
cancer, she also had to undergo chemotherapy. Citron testified that Loudin’s ten-
year-survival prognosis would have been 85 percent had detection and treatment
occurred in 2003 and that her prognosis from detection and treatment in 2004 was
82 percent.
{¶ 7} Ultimately, the appellants filed a motion to dismiss Loudin’s
amended complaint for failure to state a claim for which relief could be granted.
The appellants characterized Loudin’s complaint as seeking recovery solely for
the negligent infliction of emotional distress. In their response to Loudin’s
memorandum opposing their motion, the appellants also argued that Loudin had
not established her medical-negligence claim.
{¶ 8} Because both parties’ arguments relied on facts outside the
pleadings, the trial court converted the appellants’ motion to dismiss into a motion
for summary judgment. In its decision, the trial court noted that Loudin had
included damages for emotional distress in her medical-malpractice claim, but
had not pleaded a separate cause of action for the negligent infliction of emotional
distress. The trial court nonetheless chose to separately address Loudin’s request
for damages for emotional distress using the analysis applied to claims for
negligent infliction of emotional distress. The trial court concluded that Loudin
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was precluded from making a claim for the negligent infliction of emotional
distress because such a claim would require the finder of fact to determine what
portion of Loudin’s emotional distress was attributable to her initial diagnosis of
cancer and what portion was attributable to “her understanding that the untreated
cancer had metastasized, thereby changing her diagnosis for the worse.” And this
type of determination, the court held, was “precisely the type of issue that courts
have attempted to guard against in their analyses of these types of claims.” The
trial court also concluded that Loudin’s medical-negligence claim must fail
because “growth and metastasis of cancer are not compensable physical injuries
in Ohio.” The trial court granted summary judgment in favor of the appellants
and against all claims for relief in Loudin’s complaint.
{¶ 9} The Ninth District Court of Appeals reversed, holding that the
growth and metastasis of cancer are compensable physical injuries and that
Loudin’s medical-negligence claim should have survived summary judgment.
The appellate court pointed out that Loudin had not pleaded a separate cause of
action for the negligent infliction of emotional distress. However, because neither
party claimed that the trial court should not have addressed the issue of negligent
infliction of emotional distress, the appellate court went on to analyze that issue
on appeal. After a discussion of the history of claims for the negligent infliction
of emotional distress, the appellate court focused on this court’s explanation in
Binns v. Fredendall (1987), 32 Ohio St.3d 244, 513 N.E.2d 278, that a negligence
claim involving a physical injury invokes the traditional rules of recovery, which
consider emotional distress as a part of damages. The Ninth District held that
Loudin’s fear of recurrence of cancer was a type of emotional injury for which
Loudin could seek recovery.
{¶ 10} The Ninth District concluded that the trial court’s analysis of
negligent infliction of emotional distress was not correct and ruled that Loudin’s
claims for medical malpractice, and her related claims for respondeat superior and
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negligent supervision, should have survived summary judgment. The Ninth
District affirmed the trial court’s decision regarding certain evidentiary issues,
reversed the remainder of the decision, and remanded the cause to the trial court
for further proceedings.
{¶ 11} The cause is before this court upon the acceptance of a
discretionary appeal.
Analysis
Medical Negligence: Physical Injury
{¶ 12} The issue before this court is whether the evidence submitted by
Loudin in support of her claims for medical negligence and resulting damages
was sufficient to defeat the appellants’ motion for summary judgment.
{¶ 13} As with negligence claims in general, liability based on the alleged
negligence of a medical professional requires proof of (1) a duty running from the
defendant to the plaintiff, (2) the defendant’s breach of that duty, (3) damages
sustained by the plaintiff, and (4) proximate causation of the damages by the
defendant’s breach of duty. Schirmer v. Mt. Auburn Obstetrics & Gynecologic
Assoc., Inc., 108 Ohio St.3d 494, 2006-Ohio-942, 844 N.E.2d 1160, at ¶ 17, citing
Hester v. Dwivedi (2000), 89 Ohio St.3d 575, 578, 733 N.E.2d 1161.
{¶ 14} A physician who undertakes a physician-patient relationship has
the duty to exercise reasonable care in diagnosing the patient’s illness and
prescribing appropriate treatment. Berdyck v. Shinde (1993), 66 Ohio St.3d 573,
583, 613 N.E.2d 1014; Tracy v. Merrell Dow Pharmaceuticals, Inc. (1991), 58
Ohio St.3d 147, 150, 569 N.E.2d 875. A medical professional’s failure to detect a
condition may result in liability if the failure to detect is proven to be a proximate
cause of a patient’s injury. Berdyck at 584. “Diagnosis must be regarded as
important as is the treatment to be administered, for faulty diagnosis may result in
treatment which is not only not correctional and curative, but is positively harmful
in character.” Willett v. Rowekamp (1938), 134 Ohio St. 285, 289, 12 O.O. 91, 16
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N.E.2d 457. Although a medical professional is not a warrantor of a positive
result or cure, a negligent act or omission that “prolongs [a patient’s] illness,
increases his suffering, or, in short, makes his condition worse than it would have
been if due skill and care had been used, would, in a legal sense, constitute
injury.” Craig v. Chambers (1867), 17 Ohio St. 253, 261, abrogated in part on
other grounds as recognized in Cooper v. Sisters of Charity of Cincinnati, Inc.
(1971), 27 Ohio St.2d 242, 250, 56 O.O.2d 146, 272 N.E.2d 97.
{¶ 15} The appellants concede that Loudin adequately established duty
and breach for purposes of summary judgment by presenting expert testimony
that the appellants’ failure to detect her cancer in 2003 was a deviation from the
applicable standard of care. They focus their argument on the element of
damages and contend that Loudin provided no evidence that the appellants’
failure to timely diagnose her cancer proximately caused her any physical injury.
They agree with the trial court’s conclusion that “growth and metastasis of cancer
are not compensable physical injuries in Ohio,” and they point out that Loudin
was not cognizant of the growth of her tumor from 2003 to 2004 and assert that
the course of treatment for her cancer would have been no less intensive had it
been detected in 2003. These arguments are not well taken.
{¶ 16} First, the appellants’ contention that a plaintiff must physically
perceive the cancer’s progression in order for it to be a compensable injury is
unfounded. The law recognizes that injuries in medical-malpractice cases may go
undetected for a long time, as evidenced by the tolling of the statute of limitations
for medical-negligence claims until the plaintiff is or should be aware of the
injury. R.C. 2305.113(D). There is no requirement in Ohio that a physical injury
in a traditional negligence case cause pain or otherwise manifest itself so that the
plaintiff is aware of its presence and deleterious effect at all times.
{¶ 17} Second, Loudin presented expert testimony that she would not
have undergone an identical course of treatment had the cancer been detected in
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2003. Loudin presented expert testimony stating that chemotherapy is not
administered when the lymph nodes test negative for cancer. Loudin presented
further expert testimony that her lymph nodes would have been negative for
cancer in 2003. Thus, according to her experts, she would not have had to
undergo eight rounds of chemotherapy but for the appellants’ failure to timely
diagnose her cancer.
{¶ 18} Third, the growth and metastasis of cancer are cognizable physical
injuries. Loudin presented expert testimony that cancer is a progressive disease
and that the longer it is able to progress, the more it is able to compromise
additional areas of the body and increase the number of cancer cells in the body.
Whether the cancer is left undiagnosed to advance to the point of necessitating the
removal of an organ, a limb, a breast, or a larger lump, the destruction of
additional healthy cells and increased number of cancer cells are physical injuries,
not mere physical changes.2
{¶ 19} Although tumor enlargement and involvement of the lymph nodes
might not require radically different treatment, a plaintiff need only show some
slight injury for the question of damages to go to the jury. In Schultz v. Barberton
Glass Co. (1983), 4 Ohio St.3d 131, 134, 4 OBR 376, 447 N.E.2d 109, fn. 3,
while comparing negligent-infliction-of-emotional-distress claims with personal-
injury claims, this court explained:
{¶ 20} “Courts have allowed recovery for emotional distress accompanied
by the slightest injury. ‘When there is evidence of any injury, no matter how
2. See Tomcik v. Ohio Dept. of Rehab. & Corr. (1991), 62 Ohio Misc.2d 324, 330-331, 598
N.E.2d 900 (growth of breast cancer, requiring a mastectomy instead of a lumpectomy, constitutes
injury); Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 641, 647, 635 N.E.2d 331
(facts of case show that defendants had been found negligent for failing to timely diagnose and
treat cancer before it had metastasized, leading to amputation and death). See also Alexander v.
Scheid (Ind.2000), 726 N.E.2d 272, 284 (cancer growth and destruction of healthy tissue
constitute injury); Evers v. Dollinger (N.J.1984), 95 N.J. 399, 406, 471 A.2d 405 (growth of tumor
constitutes physical injury); Cloys v. Turbin (Tex.Civ.App.1980), 608 S.W.2d 697, 701 (any
growth of a cancerous tumor constitutes physical injury).
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slight, the mental anguish suffered by plaintiff becomes an important element in
estimating the damages sustained.’ Clark Restaurant Co. v. Rau (1931), 41 Ohio
App. 23, 26, 179 N.E. 196 [31 O.O. 576]. In Wolfe v. Great A & P Tea Co.
(1944), 143 Ohio St. 643, 56 N.E.2d 230 [28 O.O. 520], the plaintiff was allowed
to recover for mental suffering, after eating food contaminated with worms, if any
physical injury was proven. See also Ward Baking Co. v. Trizzino (1928), 27
Ohio App. 475, 161 N.E. 557.”
{¶ 21} When we view the evidence in a light most favorable to Loudin,
we conclude that she has raised a genuine issue of material fact as to whether she
would have sustained physical injuries greater than those that existed in 2003 but
for the appellants’ negligence. Specifically, but for the failure to timely diagnose
Loudin’s cancer, would her tumor have grown from one to two centimeters,
would her cancer have spread to her lymph nodes and advanced from Stage I to
Stage IIA, and would she have had to undergo chemotherapy? The Ninth District
correctly reversed the trial court’s summary-judgment decision on Loudin’s
medical-negligence claim.
Emotional-Distress Damages
and the Negligent Infliction of Emotional Distress
{¶ 22} Most, if not all, of the appellants’ argument in this appeal is
predicated upon the assumption that Loudin did not present evidence indicating
that she sustained physical injuries as a result of the appellants’ negligence.
Based on this assumption, the appellants assert that Loudin’s complaint raised a
cause of action solely for the negligent infliction of emotional distress and that the
Ninth District impermissibly created a new subspecies of the cause of action in
order to allow Loudin’s complaint to survive summary judgment. Loudin
presented a genuine issue of material fact as to whether she sustained physical
injuries as a result of the appellants’ negligence, and her complaint did not raise a
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separate cause of action for the negligent infliction of emotional distress;
therefore appellants’ assertion is without merit.
{¶ 23} We hold that the inclusion of damages for emotional distress in a
complaint alleging negligence does not automatically transform the claim into one
alleging the negligent infliction of emotional distress, nor does it automatically
create a cause of action separate and distinct from the negligence claim.
{¶ 24} We conclude that Loudin included a claim for damages for
emotional distress within the context of her medical-negligence claim and that she
did not plead a separate cause of action for the negligent infliction of emotional
distress. Thus, there was no negligent-infliction-of-emotional-distress claim for
either the trial court or the appellate court to accept or reject, and their discussions
of such a claim were unnecessary.
Conclusion
{¶ 25} Viewing the evidence presented to the trial court in a light most
favorable to Loudin, we hold that genuine issues of material fact exist as to
whether the appellants’ delayed diagnosis deviated from the required standard of
care, proximately causing physical and emotional injuries. Therefore, we affirm
the judgment of the court of appeals and remand the matter to the trial court for
further proceedings. 3
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, LANZINGER, and
CUPP, JJ., concur.
O’DONNELL, J., concurs separately.
__________________
O’DONNELL, J., concurring.
3
The validity of Loudin’s respondeat superior and negligent-supervision claims, as well as the
trial court’s evidentiary ruling, is not before this court.
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{¶ 26} I concur in the majority’s decision that emotional distress resulting
from a physical injury caused by an act of medical negligence is compensable but
does not give rise to an independent cause of action on the theory of a separate
tort. However, I write separately to emphasize that our holding today does not
represent a departure from the current state of the law regarding the recovery of
damages for emotional distress.
{¶ 27} Recovery for emotional distress has evolved over the past century.
In Miller v. Baltimore & Ohio S.W. RR. Co. (1908), 78 Ohio St. 309, 85 N.E. 499,
paragraph three of the syllabus, this court held that “[n]o liability exists for acts of
negligence causing mere fright or shock, unaccompanied by contemporaneous
physical injury, even though subsequent illness results, where the negligent acts
complained of, are neither willful nor malicious.”
{¶ 28} However, in Schultz v. Barberton Glass Co. (1983), 4 Ohio St.3d
131, 4 OBR 376, 447 N.E.2d 109, this court overruled the “impact rule” set forth
in Miller, holding that “[a] cause of action may be stated for the negligent
infliction of serious emotional distress without a contemporaneous physical
injury.”
{¶ 29} We reinforced our holding in Schultz in Paugh v. Hanks (1983), 6
Ohio St.3d 72, 6 OBR 114, 451 N.E.2d 759, holding that “[a] cause of action may
be stated for the negligent infliction of serious emotional distress without the
manifestation of a resulting physical injury. Proof of a resulting physical injury is
admissible as evidence of the degree of emotional distress suffered.” Id. at
paragraph two of the syllabus. Paugh described serious emotional distress as an
“emotional injury which is both severe and debilitating” and “may be found
where a reasonable person, normally constituted, would be unable to cope
adequately with the mental distress engendered by the circumstances of the case.”
Id. at paragraph 3a of the syllabus.
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{¶ 30} Nonetheless, in Binns v. Fredendall (1987), 32 Ohio St.3d 244,
513 N.E.2d 278, we distinguished Paugh, holding that “[n]egligently inflicted
emotional and psychiatric injury sustained by a plaintiff who also suffers
contemporaneous physical injury in a motor vehicle accident need not be severe
and debilitating to be compensable.” Id. at paragraph one of the syllabus. Thus,
Binns reaffirmed our prior understanding that “[r]ecovery for negligently inflicted
emotional and psychiatric injuries accompanied by contemporaneous physical
injury may include damages for mental anguish, emotional distress, anxiety, grief
or loss of enjoyment of life caused by the death or injury of another, provided the
plaintiff is directly involved and contemporaneously injured in the same motor
vehicle and accident with the deceased or other injured person.” Id. at paragraph
three of the syllabus.
{¶ 31} Accordingly, our case law already establishes that a plaintiff who
suffers a physical injury may recover for emotional distress, regardless of whether
the emotional injuries are severe and debilitating. Id. at paragraphs one, two, and
three of the syllabus.
{¶ 32} The majority affirms the holding by the court of appeals that a
delayed diagnosis of cancer can cause an attendant physical injury for which a
plaintiff may seek recovery for emotional distress as an element of damages. And
as the majority opinion points out, that holding is supported by authority from
other jurisdictions. Majority opinion at ¶ 18, fn. 2; see also Boryla v. Pash
(Colo.1998), 960 P.2d 123; Bond v. Ivanjack (D.C.App.1999), 740 A.2d 968.
{¶ 33} Accordingly, I concur in the judgment affirming the judgment of
the court of appeals on the basis that Lonna Loudin has raised a genuine issue of
fact as to whether she sustained a physical injury as a result of a delayed diagnosis
of breast cancer. Because this case involves emotional distress stemming from a
physical injury, Binns controls. Thus, if Loudin proves at trial that appellants
committed professional negligence that resulted in a physical injury that caused
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her emotional distress, then pursuant to Binns, she may recover damages for
resultant emotional distress.
{¶ 34} For these reasons, I agree that emotional distress resulting from a
physical injury caused by medical negligence is compensable but does not give
rise to an independent cause of action. Thus, I concur in the judgment affirming
the court of appeals.
__________________
Scanlon & Elliott, Lawrence J. Scanlon, and Michael J. Elliott, for
appellee.
Roetzel & Andress, L.P.A., Douglas G. Leak, and Stacy R. Delgros, for
appellants.
Melissa R. Lipchak, urging affirmance on behalf of amicus curiae, Ohio
Association for Justice.
______________________
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