Horn v. CherianHorn v. Cherian
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED
RELEASED AND JOURNALIZED: March 23, 2023
Appearances:
Travis Horn, pro se.
Bonezzi Switzer Polito & Hupp Co. L.P.A., Brian F. Lange and Bret C. Perry, for appellee.
EILEEN A. GALLAGHER, J.:
{¶ 1} Plaintiff-appellant Travis Horn appeals the dismissal of his small claims complaint against defendant-appellee Dr. Neil Cherian. The trial court dismissed the complaint with prejudice under
{¶ 2} We affirm the dismissal to the extent the complaint asserts that Horn has an independent claim for malpractice and prays for damages attributable to legal expenses and court costs Horn allegedly incurred in a related lawsuit Horn initiated against Dr. Cherian‘s employer and others in the Cuyahoga County Court of Common Pleas. We reverse the dismissal as to Horn‘s derivative claims for loss of consortium and expenditures, but only to the extent that the trial court dismissed the complaint with prejudice.
{¶ 3} Travis Horn is married to Mary La Riccia (“La Riccia“), who was formerly a patient of Dr. Neil Cherian at the Cleveland Clinic.
{¶ 4} On May 17, 2022, Horn filed a small claims complaint in Lyndhurst Municipal Court — on a form provided by the municipal court — seeking $6,000 in damages from Dr. Cherian and alleging as follows:
Dr. Cherian‘s negligent actions caused my wife to be removed from his care by third parties. As Dr. Cherian is the only practitioner of his medical subspecialty available to us, my wife has been left completely without medical care, which has forced us to endure a lengthy legal battle to cease this unlawful denial of care, thereby, incurring substantial undue cost and severe mental anguish.
{¶ 5} Dr. Cherian filed a motion to dismiss the complaint under
{¶ 6} Horn filed an opposition to the motion, in which he described his claim against Dr. Cherian in more detail, as follows:
Dr. Cherian, in his role as the fiduciary in the [doctor-patient] relationship [between Dr. Cherian and La Riccia], directed and encouraged the communications
that caused my wife to be removed from his care, and, therefore, bears responsibility for the content that was found to be objectionable, and, subsequently, for the financial burden I have had to endure to attempt to rectify the situation. * * * Any layman would know that psychotherapeutic conversations should not be conducted over an unsecured medium, and that the fiduciary in a relationship bears the responsibility, particularly for actions they directed.
{¶ 7} The briefing makes clear that Horn is alleging that Dr. Cherian and La Riccia communicated with each other during the course of La Riccia‘s treatment through electronic messages exchanged over MyChart, a Cleveland Clinic online health management system. Horn alleges that the Cleveland Clinic found certain messages exchanged between Dr. Cherian and La Riccia to be inappropriate and terminated the doctor-patient relationship between them. Horn alleges that Dr. Cherian is ultimately responsible for that action and that Horn and La Riccia were damaged as a result.
{¶ 8} On July 15, 2022, the municipal court dismissed the complaint with prejudice “for failure to state a claim upon which relief can be granted based on the Plaintiff‘s lack of standing, the failure to submit an Affidavit of Merit, and the pursuit of unrecoverable damages.” The court found that Horn‘s complaint “is alleging negligent actions of Dr. Cherian in the context of his relationship” with La Riccia, “seeks damages associated with other legal actions pursued by the Plaintiff to include court costs and potential legal fees” and “also appears to be pursuing mental distress damages.” The court found that any actionable claim that may exist regarding any negligence of Dr. Cherian in his communications with La Riccia would belong to La Riccia only. Moreover, the court found that even if La Riccia had asserted the claim, the complaint would be subject to dismissal for failure to include an affidavit of merit. Finally, the trial court held that “Plaintiff‘s pursuit of emotional distress or mental anguish damages is not within the jurisdiction of this Court” and “Ohio law does not allow for the pursuit of attorney fees and legal costs from other actions without any statutory or contractual mandate to support same.”
{¶ 9} Horn then filed a document styled as an “objection to the court‘s decision,” in which he asked the municipal court to reverse its decision dismissing his complaint. The trial court denied the request as moot.
{¶ 10} Horn appealed and raises the following assignments of error for review:
Assignment of Error 1:
The trial court‘s first error is holding that an affidavit of merit is required to validate my claim, which I maintain is more personal injury than a medical claim.
Assignment of Error 2:
Operating under the premise that my claim is medical, the trial court is also in error in its assertion that I do not have a claim because I did not have a relationship with Dr. Cherian.
Assignment of Error 3:
The trial court made a third error in determining that I can not file a claim for emotional damage.
Assignment of Error 4:
The trial court‘s fourth error is in determining that I can‘t recover my legal expenses “without any statutory or contractual mandate[,” citing Franklin v. Neighbors Org. for Action in Hous., 8th Dist. [Cuyahoga] No. 68966, 1996 Ohio App. LEXIS 1575 [(Apr. 18, 1996)]].
Assignment of Error 5:
The trial court has further erred in dismissing my complaint with prejudice. Assignment of Error 6:
The trial court also erred by denying my objection as moot.
II. Law and Analysis
A. Standard of Review
{¶ 11} We review rulings on
{¶ 12} This is the standard of review applicable to
{¶ 13} In practice, then, a
{¶ 14} While the bar is high, it is not insurmountable. Courts have held that the application of
{¶ 15} The ultimate question presented by this appeal is whether there is a set of facts consistent with Horn‘s complaint that would allow him to recover the damages he seeks. In answering that question, we address Horn‘s assignments of error in a different order than he presented them.
B. Standing
{¶ 16} We begin with Horn‘s second assignment of error, which challenges the trial court‘s finding that Horn lacked standing to assert the claims in his complaint. “It is well established that before an Ohio court can consider the merits of a legal claim, the person seeking relief must establish standing to sue.” State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 469, 715 N.E.2d 1062 (1999). “An action brought by a party that lacks standing will be dismissed.” State ex rel. Ohio Stands Up!, Inc. v. DeWine, 167 Ohio St.3d 248, 2021-Ohio-4382, 192 N.E.3d 371, ¶ 5. To establish standing, a plaintiff must have suffered “(1) an injury that is (2) fairly traceable to the appellee‘s allegedly unlawful conduct, and (3) likely to be redressed by the requested relief.” Torrance v. Rom, 2020-Ohio-3971, 157 N.E.3d 172, ¶ 24 (8th Dist.).
{¶ 17} Horn alleges that Dr. Cherian had a physician-patient relationship with La Riccia and negligently allowed and encouraged inappropriate communications over MyChart that caused the Cleveland Clinic to remove La Riccia as a patient of Dr. Cherian. The complaint alleges that this decision caused La Riccia to go without needed medical care and forced Horn and La Riccia to file lawsuits to attempt to undo the Clinic‘s decision.
{¶ 18} The trial court found that “any actionable claim” that may lie against Dr. Cherian would belong to La Riccia, not Horn. Dr. Cherian defends this holding, arguing that Horn “is attempting to assert the potential claims of his wife, an unnamed third-party.” Horn responds by arguing that the trial court did not consider that he suffered a loss of consortium, has had to take on additional care responsibilities and bought a significant number of nutritional supplements to attempt to care for his wife‘s condition at home.
{¶ 19} The thrust of Horn‘s one-paragraph complaint certainly focuses on the
{¶ 20} We agree with the trial court that Horn‘s complaint attempts to assert an independent malpractice claim and that Horn lacks standing to assert a malpractice claim against Dr. Cherian. See State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 77, 701 N.E.2d 1002 (1998) (“If a claim is asserted by one who is not the real party in interest, then the party lacks standing to prosecute the action.“).
{¶ 21} However, while “perhaps inartfully expressed” — Dambrosio, 8th Dist. Cuyahoga No. 52142, 1986 Ohio App. LEXIS 8976, at 3 — we find that Horn‘s complaint also states derivative claims for loss of consortium and spousal expenditures for medical care or treatment. See
{¶ 22} Dr. Cherian concedes in his appellee brief that “[a]ppellant asserts a prayer for loss of consortium and expenditures.” Nevertheless, he argues that these derivative claims cannot be pursued independently because the fact that La Riccia is not a party to this lawsuit makes “proving the validity of [the underlying malpractice claim] impossible.” That is not so.
{¶ 23} While a loss-of-consortium claim is a derivative claim, it “belongs not to the person suffering a physical injury but to another“; it is “independent.” Fehrenbach v. O‘Malley, 113 Ohio St.3d 18, 2007-Ohio-971, 862 N.E.2d 489, ¶ 11. Thus, even where an injured person completely releases a tortfeasor from liability, a claim for loss of consortium may still exist in the injured person‘s spouse. See Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 92–93, 585 N.E.2d 384 (1992).3
{¶ 24} It is, of course, Horn‘s burden, ultimately, to meet his burden of proof on the claims. But the fact that La Riccia is not a party to the case does not divest Horn of standing to pursue these claims. We, therefore, find some merit to Horn‘s second assignment of error. We express no opinion on the ultimate merits of Horn‘s derivative claims, including but not limited to, whether there was a legally cognizable tort in the first place and whether Horn has suffered cognizable loss-of-consortium or expenditure damages as a result. Horn does, however, have standing to assert those claims and, therefore, his complaint cannot be dismissed for lack of standing.
{¶ 25} We do affirm the dismissal of Horn‘s claim for malpractice against Dr. Cherian. Because Horn was not Dr. Cherian‘s patient, he does not have standing to assert that claim.4
C. Affidavit of Merit
{¶ 27} Horn‘s first assignment of error addresses the trial court‘s dismissal of Horn‘s complaint for failure to include an affidavit of merit. The trial court was correct in finding Horn‘s claims to be medical claims requiring an affidavit of merit under
{¶ 28}
[A] complaint that contains a medical claim * * *, as defined in
R.C. 2305.113 , shall be accompanied by one or more affidavits of merit
relative to each defendant named in the complaint for whom expert testimony is necessary to establish liability. Affidavits of merit shall be provided by an expert witness meeting the requirements of
Evid.R. 702 and, if applicable, also meeting the requirements ofEvid.R. 601(D) . Affidavits of merit shall include all of the following:
- A statement that the affiant has reviewed all medical records reasonably available to the plaintiff concerning the allegations contained in the complaint;
- A statement that the affiant is familiar with the applicable standard of care;
- The opinion of the affiant that the standard of care was breached by one or more of the defendants to the action and that the breach caused injury to the plaintiff.
Civ.R. 10(D)(2)(a) .
{¶ 29} The rule states that an “affidavit is necessary in order to ‘establish the adequacy of the complaint.‘” Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, ¶ 10, quoting
{¶ 30} This requirement is designed to “prevent[] the filing of medical claims that are not supported by an expert‘s opinion” and “deter[] filing actions against all medical providers who cared for a patient.” Erwin v. Bryan, 125 Ohio St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, ¶ 19; see also Fletcher at ¶ 10 (“The rule is designed to ease the burden on the dockets of Ohio‘s courts and to ensure that only those plaintiffs truly aggrieved at the hands of the medical profession have their day in court.“).
{¶ 31} Horn contends that his claim is not a “medical claim” to which this requirement applies because (1) the negligence related to a “non-medical decision” and (2) the breach of the standard of care here was so obvious that no expert testimony was required to establish it. We disagree.
{¶ 32} A “medical claim” includes “any claim that is asserted in any civil action against a physician * * * that arises out of the medical diagnosis, care, or treatment of any person.”
{¶ 34} The Ohio Supreme Court explained a plaintiff‘s burden on a medical-malpractice claim in Bruni v. Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673 (1976), as follows:
Under Ohio law, as it has developed, in order to establish medical malpractice, it must be shown by a preponderance of the 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 result of such doing or failing to do some one or more of such particular things.
{¶ 35} “Expert testimony is necessary to prove the elements of medical malpractice ‘whenever those elements are beyond the common knowledge and understanding of the jury.‘” Adams v. Kurz, 10th Dist. Franklin No. 09AP-1081, 2010-Ohio-2776, ¶ 11, quoting Williams v. Lo, 10th Dist. Franklin No. 07AP-949, 2008-Ohio-2804, ¶ 11; see also Higgins v. Ranasinghe, 8th Dist. Cuyahoga No. 100722, 2014-Ohio-4674, ¶ 24.
{¶ 36} Horn‘s argument is that the elements of negligence and causation are not beyond the common knowledge and understanding of the jury here. This argument attempts to shoehorn his claims into the “common knowledge exception,” an exception to the requirement of expert testimony that “has a limited scope in a world of increasing medical complexity.” Cunningham v. Children‘s Hosp., 10th Dist. Franklin No. 05AP-69, 2005-Ohio-4284, ¶ 20.
{¶ 37} As an initial matter, it is not settled that the common-knowledge exception applies to obviate the requirement for an affidavit of merit. The plain language of the rule would seem to only require an affidavit to support the adequacy of claims against defendants “for whom expert testimony is necessary to establish liability.”
{¶ 38} We need not answer that question on this appeal, though, because even if the exception applies to
{¶ 39} Horn alleges that Dr. Cherian — who Horn says is the only practitioner of his medical subspecialty in this part of Ohio — communicated with his patient, during treatment for “a rare otoneurological * * * condition,” in an unreasonable way over an unreasonable medium. This is a claim beyond the common knowledge of the jury. That Horn and Dr. Cherian‘s counsel had vastly different notions at oral argument about how physicians generally use MyChart to communicate with their patients makes that plain enough, even before considerations of damage and causation.
{¶ 40} Having found that expert testimony is required to establish Dr. Cherian‘s liability for Horn‘s derivative medical claims for loss of consortium and expenditures, we conclude that
{¶ 41} We end our inquiry here, but we note that no party offered us a citation to a case in which a court considered whether
{¶ 42} Because Horn implicitly conceded that
D. The Effect of the Dismissal
{¶ 43} In his fifth assignment of error, Horn contends that the trial court erred by dismissing his complaint with prejudice. We agree, in part, because Horn‘s derivative claims for loss of consortium and expenditures should have been dismissed without prejudice. We disagree as to Horn‘s malpractice claim and claim seeking legal expenses related to other cases he filed related to Dr. Cherian‘s treatment of La Riccia, which were appropriately dismissed with prejudice.
{¶ 44} “A dismissal with prejudice operates as an adjudication on the merits. It is axiomatic, then, that a dismissal otherwise than on the merits should be without prejudice.” (Citation omitted.) Fletcher, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, at ¶ 16, citing Thomas v. Freeman, 79 Ohio St.3d 221, 225, 680 N.E.2d 997 (1997), fn.2.
{¶ 45} A
{¶ 46} Horn‘s claim for malpractice cannot be pleaded in any other way, because he was not Dr. Cherian‘s patient. For the reasons discussed in the next section, we also find that Horn‘s claim for legal expenses related to other lawsuits he filed as a result of Dr. Cherian‘s treatment of La Riccia cannot be pleaded in any other way. Therefore, it was proper for the trial court to dismiss those claims with prejudice.
{¶ 47} The same cannot be said for Horn‘s derivative medical claims, though. A dismissal for failure to attach an affidavit of merit “shall operate as a failure otherwise than on the merits.”
E. Prayer for Legal Expenses
{¶ 48} In his fourth assignment of error, Horn claims that the trial court erred by dismissing his prayer for damages he says are attributable to legal expenses and court costs he incurred in collateral litigation over Dr. Cherian‘s treatment of La Riccia. Horn says that Dr. Cherian was not a party to that litigation; he argues that Dr. Cherian‘s negligence “has forced me into litigation against third parties” and that Dr. Cherian “should be responsible for the costs incurred as a result of that litigation.” Dr. Cherian argues that attorney fees and court costs are prohibited by the American rule and are not among those expenditures contemplated by
{¶ 49} “Ohio has long adhered to the “American rule” with respect to recovery of attorney fees: a prevailing party in a civil action may not recover attorney fees as a part of the costs of litigation.” Cruz v. English Nanny & Governess School, Slip Opinion No. 2022-Ohio-3586, ¶ 35, quoting Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 2009-Ohio-306, 906 N.E.2d 396, ¶ 7. There are three “well-established exceptions” to this rule: “(1) when a statute creates a duty to pay attorney fees, (2) when the losing party acted in bad faith, and (3) when the parties contracted to shift the fees.” Cruz at ¶ 36. None of these well-established exceptions apply here. Horn‘s argument is that we should find that this case fits within another recognized exception to the American rule, “where the wrongful act of the defendant has involved the plaintiff in litigation with others or placed him in such relation with others as makes it necessary to incur expense to protect his interest.” S & D Mechanical Contrs. v. Enting Water Conditioning Sys., Inc., 71 Ohio App.3d 228, 241, 593 N.E.2d 354 (2d Dist.1991). In that situation, attorney fees “should be treated as the legal consequences of the original wrongful act and may be recovered as damages.” Id.
{¶ 50} Ohio courts have considered attorney fees to be appropriate compensatory damages under certain circumstances. Horn cites to no Ohio case holding as much,6 but we are aware of such cases in certain contexts.
{¶ 51} Attorney fees have been approved as consequential damages for some real-estate claims, for example.7 In Columbus Invests. Group, the Tenth District approved an award of attorney fees against a defendant who served as a witness to a fraudulent warranty deed. Columbus Invests. Group, 10th Dist. Franklin Nos. 02AP-271 and 02AP-418, 2002-Ohio-5968, ¶ 31.
{¶ 52} Courts have also “long recognized” that “a plaintiff may recover attorney fees expended in an action brought by a third party as compensatory damages where the defendant‘s breach of contract caused the plaintiff to engage in the litigation with the third party.” Rayco Mfg., Inc. v. Murphy, Rogers, Sloss & Gambel, 2019-Ohio-3756, 142 N.E.3d 1267, ¶ 14 (8th Dist.). Our court has also held that “attorney fees can be awarded as compensatory damages to the prevailing party on a motion to enforce a settlement agreement when the fees are incurred as a direct result of a breach of the settlement agreement.” Id. at ¶ 11. Horn‘s claim is not a contract claim and does not arise out of the breach of a settlement agreement.
{¶ 53} In legal-malpractice actions attorney fees that are “incurred to rectify, or to attempt to rectify, the malpractice are recoverable as indirect, or consequential, damages” when “the factfinder is persuaded that the fees and expenses of the successor attorney were causally related to an established cause of action for malpractice.” E.g., Green v. Bailey, 1st Dist. Hamilton No. C-070221, 2008-Ohio-3569, ¶ 17. Horn‘s claim is not a legal-malpractice claim, either.
{¶ 54} Horn says he was “forced” to file suit against the Cleveland Clinic and others to attempt to undo the care decision the Clinic made with respect to La Riccia‘s treatment with Dr. Cherian. Horn says the lawsuit would not have been necessary except that Dr. Cherian was negligent in his treatment of La Riccia, which Horn says caused the Clinic to remove La Riccia as a patient of Dr. Cherian. In this separate small claims suit, Horn seeks to recover the litigation expenses incurred in that legal campaign. Horn directs us to no authority allowing the recovery of attorney fees in the context of a medical claim and we do not read any of the authorities discussed above to authorize the recovery of attorney fees or other litigation expenses under the circumstances presented in this case. The alleged negligence did not “involve[] the plaintiff in litigation with others.” S & D Mechanical Contrs., 71 Ohio App.3d at 241, 593 N.E.2d 354. Nor did the alleged negligence “place[] him in such relation with others as makes it necessary to incur expense to protect his interest.” Id. To extend the exception to encompass the circumstances of this case would allow the exception to swallow the rule.
{¶ 55} The trial court was, therefore, correct in dismissing Horn‘s prayer for legal expenses related to the collateral litigation Horn filed against Dr. Cherian‘s employer in the common pleas court. Because there was no other way for Horn to plead this request for relief, and as discussed further above, the trial court correctly dismissed the claim for this relief with prejudice.
F. Prayer for Mental Anguish Damages
{¶ 56} Horn‘s third assignment of error challenges the trial court‘s holding that the “pursuit of emotional distress or mental anguish damages is not within the jurisdiction of this Court” pursuant to
{¶ 57} Small claims courts have passed on claims of damages related to mental and emotional damages. E.g., Marsh v. Lansing Gardens Apts., 7th Dist. Belmont No. 07-BE-32, 2008-Ohio-3404, ¶ 22 (affirming municipal court‘s award of damages in part because “there was evidence that [the plaintiff] suffered damages as a result of the emotional toll the problems with her apartment took on her.“)
{¶ 58} Horn presents derivative medical claims for loss of consortium and expenditures; these causes of action are not among those specifically excluded from the municipal court‘s small claims jurisdiction. Therefore, it was error for the trial court to dismiss Horn‘s claims for lack of subject-matter jurisdiction. Our holding does not speak to the merits of Horn‘s claim that he suffered cognizable damages for loss of consortium or expenditures. But the municipal court has jurisdiction to hear those claims.
G. The Motion to Reconsider
{¶ 59} In his sixth assignment of error, Horn contends that the trial court should not have denied the document he filed that was styled as an “objection” to the court‘s dismissal order. It seems that Horn erroneously believed he was filing an objection to a magistrate‘s decision. The dismissal was ordered by the trial judge and it was a final order; it disposed of all the claims between all the parties, leaving nothing else to be determined. See Udelson v. Udelson, 8th Dist. Cuyahoga No. 92717, 2009-Ohio-6462, ¶ 14-15.
{¶ 60} In his “objection,” Horn simply argued that the trial court should not have dismissed his complaint. In other words, the “objection” was nothing more than a motion to reconsider the trial court‘s judgment.
{¶ 61} As our court said in Udelson,
[t]he Ohio Rules of Civil Procedure limit relief from judgments to motions expressly provided for in the rules. The rules allow for relief from final judgments by means of
Civ.R. 50(B) (motion notwithstanding the verdict),Civ.R. 59 (motion for a new trial), andCiv.R. 60(B) (motion for relief from judgment). The rules do not, however, prescribe motions for reconsideration after a final judgment in the trial court. Accordingly, motions for reconsideration of a final judgment in the trial court are a nullity and trial courts do not have jurisdiction to address them.
(Citations omitted.) Udelson at ¶ 16.
{¶ 62} While trial courts have some discretion to treat a motion for reconsideration as a motion to vacate under
{¶ 63} We, therefore, overrule Horn‘s sixth assignment of error.
III. Conclusion
{¶ 64} For the reasons stated above, we affirm the judgment of the municipal court, in part, and we reverse it, in part.
{¶ 65} We reverse the dismissal of Horn‘s derivative claims for loss of consortium and expenditures, but only to the extent that the claims were dismissed with prejudice. We remand this matter with instructions for the trial court to dismiss those claims without prejudice for failure to attach an affidavit of merit to the complaint.
{¶ 66} We affirm the dismissal, with prejudice, of Horn‘s independent claim of malpractice against Dr. Cherian arising out of the doctor-patient relationship between La Riccia and Dr. Cherian. We also affirm the dismissal, with prejudice, of Horn‘s prayer for legal expenses and court costs related to the litigation Horn filed in the Cuyahoga County Court of Common Pleas related to Dr. Cherian‘s treatment of La Riccia.
It is ordered that the appellant and the appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Lyndhurst Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and LISA B. FORBES, J., CONCUR