614 N.E.2d 841 | Ohio Ct. App. | 1992
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *223 Plaintiff-appellant, Keith Anderson, Esq., the administrator of the estate of Edward H. Winter, takes this appeal from the summary judgment entered against him in the Hamilton County Court of Common Pleas. In that court, appellant sued defendant-appellee, St. Francis-St. George Hospital ("SFSG"), claiming that it was liable for harm to Winter during his hospital stay at SFSG. Appellant advanced alternative, nonexclusive legal theories: battery, negligence, and "wrongful living." In the course of lengthy pretrial proceedings, SFSG made a motion for summary judgment on two grounds. SFSG's first assertion was that appellant had not stated a claim on which relief could be granted. In the *224 alternative, SFSG claimed that even if appellant had stated viable causes of action, there were no genuine issues of material fact remaining in the case. The trial court agreed with SFSG and granted summary judgment. On appeal, in a single assignment of error, appellant advances an umbrella claim — that is, the trial court erred by holding that, in Ohio, there is no cause of action for wrongful administration of life-prolonging medical treatment. For the reasons that follow, we affirm the judgment of the trial court in part, reverse in part, and remand for further proceedings.
In appellant's original November 17, 1989 complaint, he alleged that on May 25, 1988, Winter was admitted to SFSG suffering chest pain. After initial treatment in the emergency room, Winter was given additional care in the hospital's coronary unit. Appellant further alleged that Winter had a discussion with his family and his private physician, Dr. Russo, about the type of treatment that he was to receive while at SFSG. In addition, there is evidence to show that as a result of that discussion, Dr. Russo entered the instruction in the hospital record: "No Code Blue." In his complaint, appellant claimed that the no-code-blue entry indicated that Dr. Russo specifically instructed that Winter not be resuscitated.
On May 28, 1988, during Winter's subsequent treatment at SFSG, he suffered a ventricular fibrillation. Appellant alleged that, despite Dr. Russo's instructions, a nurse resuscitated Winter by shocking his heart with an electric current. Appellant further maintained that the nurse's resuscitation prevented Winter's natural death. Appellant claimed that the nurse's act of resuscitation was a battery to Winter. Appellant also asserted that the nurse was negligent by resuscitating Winter contrary to Dr. Russo's orders. Finally, appellant maintained that, by keeping Winter alive, SFSG caused him "great pain, suffering, emotional distress and disability" as well as medical and other financial expenses.
Civ.R. 56(C) provides that a motion for summary judgment shall be granted when the "pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact * * * show that there is no genuine issue as to any material fact."
When a party makes a motion for summary judgment, that person bears the burden of showing that there is no genuine issue of a material fact. Mitseff v. Wheeler (1988),
A motion for summary judgment may also be used as a substitute for Civ.R. 12(B)(6) to dismiss a claim on which relief cannot be granted. Watkins v. Teater (1983),
Concerning the substantive law of this dispute, the rule is that a person commits a battery when he unlawfully strikes or touches another. Green v. Drungold (1950), 60 Ohio Law Abs. 445, 447,
In contrast, a physician's acts are lawful when the patient expressly consents prior to medical treatment. Leach, supra,
In this case, disputed questions of fact remain concerning a potential battery to appellant's decedent. The finder of fact must make a determination on the issue of consent. There is evidence that decedent expressly refused treatment in a code-blue situation. Also, there is evidence that defibrillation was within the ambit of Dr. Russo's no-code-blue instruction. Therefore, a trier of *226
fact must determine both the existence and nature of decedent's refusal. Leach, supra,
To determine the extent of possible legal liability in a battery, the trier of fact must determine what harm was proximately caused by the defendant's wrongful act. In intentional torts, such as battery, the defendant is liable for all harms that are proximately caused by the wrongful act.Allstate Fire Ins. Co. v. Singler (1968),
That later event is a superseding cause if it is not reasonably foreseeable. Id. In contrast, if the later cause were a "probable consequence" that was "set in motion" by the original wrongful act, it is reasonably foreseeable and not a superseding cause. Mudrich v. Standard Oil Co. (1950),
For instance, if a delivery person negligently spills gasoline on the ground near a service station, that wrongdoer is liable for all proximately caused harm that results from the original act. Mudrich, supra,
In this case, the record shows that decedent had damages after the defibrillation. Specifically, appellant claims that those damages were a paralyzing stroke as well as pain, suffering, emotional distress and disability, and medical expenses. Therefore, another genuine issue of material fact remains for the jury. That *227 question is: If the defendant committed a battery, were the decedent's later harms proximately caused by the original wrongful act?
The next issue concerns which of the proximately caused harms are compensable. In appellant's assignment of error, he claims that decedent's life was prolonged by the defibrillation, but that life "was, for him, not worth living." Appellant "coins" a name for the cause of action for the life that was forced on decedent by the resuscitation — "wrongful living." Brief for appellant, at 8, citing Oddi, The Tort of Interference with the Right to Die: The Wrongful Living Cause of Action (1986), 75 Geo.L.J. 625. This rather novel notion has not been addressed directly in Ohio courts. Nonetheless, it is possible to determine that life is not a compensable harm; therefore, there is no cause of action for wrongful living.
First, the Ohio Supreme Court has declined to consider the lack of life to be a possible benefit. Bowman v. Davis (1976),
Damages, therefore, are not those things that add to life, but those that subtract from it. Examples of compensable damages are: wrongful death, R.C.
Even though life is not a harm, appellant, nevertheless, claims that Ohio "specifically recognizes" that patients should be compensated for wrongful living. Brief for appellant at 4. In Ohio, it is the role of the Supreme Court or the General Assembly to create new causes of action. See, generally, High v.Howard (1992),
First, appellant develops an analogy to Leach. In Leach,
against her prior express wishes, a patient in a chronic vegetative state was placed on life-support systems. Id.,
Appellant also relies on two sterilization cases in an effort to create an Ohio wrongful-living cause of action. Bowman v.Davis (1976),
Appellant's attempt to create a wrongful-living cause of action fails because life is not a compensable harm. Furthermore, appellant's effort to weave a wrongful-living claim from dicta is misplaced. Our role is not to create causes of action. That responsibility lies with either the General Assembly or the Ohio Supreme Court. Because none of the cases that appellant cites even mentions wrongful living, we do not recognize his claim. For that reason, even if appellant were to prove all allegations in his complaint, under Civ.R. 12(B)(6), his wrongful-living claim is one on which relief cannot be granted. Therefore, the trial court correctly dismissed that portion of appellant's complaint.
Even though a victim must have some legally recognized harm to recover actual damages, nonconsensual medical treatment that prolongs a person's life may still be a battery. Therefore, as in any battery, the plaintiff is entitled to some relief. When, however, the nonconsensual treatment is harmless or beneficial, damages for the wrongful act are nominal only, not actual.Lacey, supra,
Genuine issues of material fact remain concerning the possible battery of appellant's decedent. Therefore, under Civ.R. 56(C), the trial court erred by granting a summary judgment on that portion of this case.
With respect to appellant's remaining theory of recovery, a person commits a negligent tort when he has a duty to another, breaches that duty, the *229
breach proximately causes harm to the victim, and the harm is compensable. Strother, supra,
There are, however, questions of fact concerning the possible breach of that duty. There is evidence in the record that indicates that decedent requested limitations on his care while at SFSG. There is also evidence that decedent's private physician ordered that decedent not be resuscitated. Also, there is evidence that either SFSG or the nurse, or both, were negligent in preventing or causing the nonconsensual treatment. Therefore, two issues remain for the trier of fact: first, whether the defibrillation was precluded by the no-code-blue instruction; second, if the defibrillation was within the ambit of the instruction, whether either SFSG or the attending nurse was negligent by resuscitating decedent.
If the trier of fact determines that either SFSG or the nurse breached a duty to decedent, just as in battery, the appellant must prove that later harms were proximately caused by the negligent act. In addition, if there were proximately caused harms, the court should allow compensation only for damages that are recognized by Ohio law. In contrast to battery, however, if the court finds negligence, but no compensable harm, it should not allow nominal damages. Craig v. Chambers (1867),
In this case, genuine issues remain on the question of defendant's negligence. Therefore, the trial court erred by granting summary judgment on that portion of the case.
For the reasons stated, we affirm the trial court's judgment dismissing the cause of action for wrongful living. For the issues remaining in both battery and negligence, however, we remand the case to the trial court for further proceedings in accordance with the reasoning of this decision.
Judgment accordingly.
KLUSMEIER and UTZ, JJ., concur. *230