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Rosenshine v. Medical College Hospitals

Court of Claims of Ohio

December 21, 2012

DAWN ROSENSHINE, Exec. Plaintiff

To S.C. Reporter March 22, 2013 and August 22, 2013

Anne B. Strait Assistant Attorney General

Mark F. Vitou



(¶ 1}On June 26, 2012, the Tenth District Court of Appeals issued a decision that reversed this court's prior judgment in favor of defendant, rendered judgment in favor of plaintiff as to the issue of liability, and remanded the matter to this court for further proceedings on the issue of damages. On November 1, 2012, this court heard oral argument and accepted additional evidence with regard to the issue of damages.

(¶ 2}On May 30, 1995, Theresa Dougherty was admitted to defendant's hospital for a cardiac catheterization.[1] One of the procedures that Theresa underwent during that visit was a chest x-ray to exclude the possibility of myocardial infarction. The x-ray was taken and a report was prepared by a radiologist, who noted a "right upper lung mass, measuring 2.5 centimeters." On June 2, 1995, Theresa was discharged from defendant's hospital, but the discharge summary did not refer to the x-ray, and no one informed Theresa of the results. In November 1996, Theresa was diagnosed with cancer in both of her lungs, which had spread to her brain and was inoperable. Theresa died on November 3, 1997.

(¶ 3}In its decision, the Tenth District Court of Appeals held that it was against the manifest weight of the evidence for this court to conclude that the failure to diagnose the mass in Theresa's right lung was not the proximate cause of her death. In so holding, the Court of Appeals found most persuasive Dr. Robert J. Steele's opinion that Theresa's "prognosis in May 1995, had she been diagnosed and treated, was 70 percent survival * * *." Rosenshine v. Medical College Hosps., 10th Dist. No. 11AP-374, 2012-Ohio-2864, ¶18. Accordingly, the court makes the following determination.

(¶ 4}Plaintiffs claims sound in survivorship and wrongful death on behalf of the heirs and next of kin of Theresa. Pursuant to R.C. 2125.02(A)(2), the court "may award the reasonable funeral and burial expenses incurred as a result of the wrongful death." Plaintiffs Exhibits 5 and 6 show that plaintiff incurred funeral and burial expenses for Theresa in the amounts of $6, 254.38 and $4, 464.19, respectively, for a total of $10, 718.57, which shall be awarded. The parties agree that aside from the funeral and burial expenses, there is no claim for economic damages in this matter.

(¶ 5}Theresa was born on March 3, 1939, and was 57 years old when she died. Theresa is survived by her three adult children, Dawn Rosenshine, Robert Dougherty, Jr., and Vincent Dougherty, and Vincent's daughter, Alyssa, who was Theresa's only grandchild at the time of her death. Theresa's children provided individual written statements regarding how their mother's death has affected them, and Dawn's deposition was submitted as well. (Plaintiffs Exhibits 2-4, 21.)

(¶ 6}Dawn testified that Theresa was diagnosed with lung cancer two weeks after Robert Dougherty, Sr. (Theresa's husband) died of colon cancer in November 1996. Even though Theresa's cancer was inoperable when she was made aware of its diagnosis, Theresa chose to undergo radiation therapy with the hope that it would extend her life. After she concluded radiation treatments in Ohio, Theresa went to live in New York City with Dawn and Dawn's husband. Theresa died in Dawn's home, under hospice care. The evidence shows that Theresa was not informed of the presence of a tumor in her lung for approximately one year, and for approximately another year, Theresa lived with the knowledge that her medical treatment had been delayed, resulting in inoperable cancer that had spread to her brain. According to Dawn, Theresa initiated this lawsuit because she was very upset that she was not informed about the tumor when it was first detected on the x-ray, and she did not want the same result to happen to another patient. Theresa urged Dawn to pursue the claim as executor.

(¶ 7}Dawn testified that her mother was in considerable pain during the last few months of her life, and that she was prescribed morphine, along with other pain medication from the summer of 1997 until her death. Dawn sought counseling services from her rabbi and a priest, and she attended a support group to cope with the grief she sustained as a result of her mother's death.

(¶ 8}Robert Dougherty, Jr., was living in Connecticut when Theresa's cancer was diagnosed and he visited her frequently during the time that she lived in New York City. Vincent was living in Ohio when Theresa was diagnosed with cancer. Prior to her diagnosis, both Theresa and her husband had been primary care givers to Vincent's daughter Alyssa, who was born in December 1990. From birth, Alyssa lived in two places: with Theresa and her husband approximately four days per week, and with her other grandmother for the other three days. However, in October 1996, Alyssa went to live with her other grandmother because Theresa was caring for her dying husband. Thereafter, Alyssa continued to visit Theresa but did not return to live with her. At the time of Theresa's death, Dawn, Robert Jr., and Vincent were all adult children, and Alyssa was almost 7 years old.

(¶ 9}Defendant argues that Theresa suffered from multiple health problems aside from the undiagnosed tumor, which would have significantly shortened her life expectancy. Specifically, Theresa had a history of cardiac problems and was a life-long cigarette smoker. Defendant also seeks a determination from this court that Theresa was comparatively negligent in that she began to smoke cigarettes when she was 13 years old and continued to smoke until her death, despite being aware of the risk of death from smoking. The court finds that inasmuch as the Court of Appeals rendered judgment in favor of plaintiff without consideration of defendant's comparative negligence argument, this court is confined to the issue of damages.[2] However, Theresa's state of health is a factor that this court shall consider in awarding damages. Pursuant to R.C. 2125.02(A)(3)(b)(i), the "court may consider all factors existing at the time of the decedent's death that are relevant to a determination of the damages suffered by reason of the wrongful death." For example, "it is proper to take into consideration such factors, varying in individual cases, as the victim's life expectancy, character, health, habits, talents, prospects, * * * needs of and contributions to [her beneficiaries] and current returns on investments." Sutfin v. Burton, 91 Ohio App. 177, 193, (8th Dist. No.1951) citing 16 American Jurisprudence, 127, 160, "Death, " Sections 190 to 242.

(¶ 10}The parties have submitted the depositions of Joel Kahn, M.D., Elloise Gard, M.D., and Robert Steele M.D., to be considered regarding Theresa's estimated life expectancy. Elloise Gard, M.D., board-certified in internal medicine, first treated Theresa in December 1994. With regard to Theresa's family medical history, Dr. Gard testified that Theresa's mother had breast cancer, Theresa's father suffered a heart attack at age 48, and two of Theresa's sisters died of cancer. Theresa smoked one pack of cigarettes per day for approximately 40 years. Dr. Gard advised Theresa to stop smoking because smoking is known both to worsen ...

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