2018 Ohio 2535
Ohio Ct. App.2018Background
- Plaintiff Dolly Beattie, a long-term patient of Dr. Terrance McCoy, alleged he engaged in a year‑long sexual relationship with her while treating her for depression and other conditions; she later sued for medical malpractice and recovered a judgment of $867,500.
- During the affair, McCoy surrendered his medical license; OHA Insurance Solutions, Inc. (OHAIS) had issued McCoy a professional‑liability policy and defended him under a reservation of rights but declined to indemnify.
- Beattie sought a declaratory judgment that OHAIS must indemnify McCoy because the harm occurred ‘‘while performing [a] professional service.’’ OHAIS counterclaimed for a declaration of no duty to indemnify.
- Beattie submitted expert psychologist Stuart Bassman’s deposition report and later an affidavit asserting ‘‘transference phenomenon’’ and opining that McCoy should have recognized and managed it. OHAIS moved to strike the affidavit as untimely and inadmissible under Civ.R. 56 and Evid.R. 702/705.
- The trial court denied the motion to strike but granted summary judgment for OHAIS on coverage. Both parties appealed (OHAIS cross‑appealed the denial to strike the affidavit).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OHAIS must indemnify McCoy because the injury occurred "while performing a professional service" | Beattie: failing to refrain from sex or to rebuke sexual advances was part of professional services McCoy should have provided (esp. given patient’s transference) | OHAIS: sexual conduct is not a professional service enumerated or naturally covered; McCoy’s sex was personal misconduct unrelated to legitimate treatment | Held: No duty to indemnify—McCoy’s sexual conduct was not inextricably related to professional services and thus not covered |
| Admissibility of Bassman’s affidavit on ‘‘transference’’ at summary judgment | Beattie: affidavit supplemented deposition and supports that McCoy should have known and managed transference | OHAIS: affidavit advanced new, undisclosed opinions and Bassman lacked demonstrated expertise and factual basis; affidavit inadmissible under Civ.R.56(E) and Evid.R.702/705 | Held: Trial court abused discretion denying motion to strike; affidavit inadmissible and properly excluded |
Key Cases Cited
- St. Paul Fire & Marine Ins. Co. v. Love, 459 N.W.2d 698 (Minn. 1990) (therapist’s sexual misconduct may be covered if inextricably related to treatment)
- AAAA Enters., Inc. v. River Place Community Urban Redev. Corp., 50 Ohio St.3d 157 (Ohio 1990) (standard for abuse of discretion)
- Douglass v. Salem Community Hosp., 153 Ohio App.3d 350 (Ohio Ct. App. 2003) (expert affidavit must meet Evid.R. 702/705 and Civ.R.56(E))
- Smith v. Cincinnati Gas & Elec. Co., 75 Ohio App.3d 567 (Ohio Ct. App. 1991) (expert affidavit may not be conclusory)
- Comer v. Risko, 106 Ohio St.3d 185 (Ohio 2005) (interpretation of clear contract language is a question of law)