Ruling a victory for Ohio tort reform measures, physicians say

The state's high court decides that a patient's emotional distress claim must be included in a medical liability lawsuit and cannot stand alone.

By Alicia Gallegos — Posted May 23, 2011

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The Supreme Court of Ohio has ruled that a patient's spread of cancer is a "physical injury" and she can seek compensation for her alleged emotional distress through her medical liability lawsuit.

But the court said the patient cannot sue for emotional distress as a separate legal action.

The ruling is a victory for Ohio physicians who say it protects tort reform measures, particularly individual noneconomic damage caps ranging from $250,000 to $500,000. If the court had allowed separate legal actions in the case, the patient could have recovered an award exceeding the cap, the Ohio State Medical Assn. said.

The high court decision stems from the case of Lonna Loudin, who was diagnosed with breast cancer in 2004. Loudin underwent regular mammograms between 1997 and 2004 at a center owned by Radiology & Imaging Services, according to court documents. Loudin's test results were interpreted as normal.

In 2004, she detected a lump in her left breast during a self-exam, and diagnostic tests revealed the mass as cancerous, court documents show. Loudin sued Radiology & Imaging Services and radiologist Richard D. Patterson, MD, alleging negligence and emotional distress, among other claims. She alleged the cancer was present in her 2003 test result and spread to her lymph nodes because of a delayed diagnosis.

Dr. Patterson claimed no wrongdoing. His attorneys requested that the suit be dismissed, stating the plaintiff did not have valid claims. At this article's deadline, an attorney for Radiology & Imaging Services had not returned a call seeking comment.

The trial court found for Dr. Patterson, ruling Loudin's emotional distress claim invalid. The court also threw out the medical negligence allegation, saying "growth and metastasis of cancer are not compensable physical injuries in Ohio."

The court ruled separately on her claims on negligence and emotional distress, leading other courts to do the same.

An appellate court reversed the lower court, finding the spread of cancer a compensable physical injury. The court also disagreed with the trial court's analysis of the emotional distress claim. Loudin's fear of cancer recurrence was a valid type of emotional distress, the court said.

Tort reforms at risk

The appellate decision concerned doctors because it appeared to create two legal actions from which Loudin could recover damages, said Nancy Gillette, general counsel for the Ohio State Medical Assn.

"Our concern was that a precedent was being set for a separate claim for emotional distress," she said. "It would circumvent many of the tort reforms in place in Ohio."

A stand-alone claim for emotional distress would not have been subject to the same limit on noneconomic damages required in medical negligence cases, Gillette said. The one-year statute of limitations for medical negligence cases would have been affected, she said.

The OSMA and the Litigation Center of the American Medical Association and the State Medical Societies submitted a brief to the high court, arguing against the emotional distress claim being considered on its own. The Supreme Court appropriately deemed that the claim should be included within the context of the larger medical negligence claim, Gillette said.

Lawrence J. Scanlon, Loudin's attorney, was pleased with the high court's decision, but for a different reason. The ruling allows the case to move forward in the trial court.

"[Loudin] was very happy. It's been a long road," he said.

As part of its opinion, the high court clarified that the spread of cancer constitutes a physical injury subject to recovery in medical liability cases.

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