[Cite as Court Appointed Grdns. v. Children's Hosp. Med. Ctr., 2016-Ohio-5112.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
COURT APPOINTED GUARDIANS, : APPEAL NO. C-150449 Individually and on Behalf of Jane Doe, a TRIAL NO. A-1202505 Minor, : O P I N I O N. Plaintiffs-Appellants, :
vs. :
CHILDREN’S HOSPITAL MEDICAL : CENTER, : MICHAEL S. CHUA, M.D., : and : LESLEY L. BREECH, M.D.,
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 27, 2016
Gottesman & Associates, LLP, and Zachary Gottesman, for Plaintiffs-Appellants,
Dinsmore & Shohl, LLP, J. David Brittingham and Allison G. Knerr, for Defendants- Appellees. O HIO F IRST D ISTRICT C OURT OF A PPEALS
M OCK , Judge.
{¶1} On January 3, 2008, Jane Doe was taken to defendant-appellee
Children’s Hospital Medical Center’s emergency department for treatment for
vaginal bleeding. Doe’s father told personnel that she had fallen on a Lego toy, which
had become lodged in her vagina. Doe was four years old at the time.
{¶2} Doe was originally seen by defendant-appellee Dr. Michael S. Chua,
who was the attending physician in the emergency department. After an initial
examination, Chua called defendant-appellee Dr. Lesley L. Breech, a pediatric
gynecologist who was on call that day. Breech performed an examination under
anesthesia and surgically repaired Doe’s injuries. Doe was released the same day.
{¶3} Three months later, Doe’s mother called her father and asked him to
come and take Doe and Doe’s brother from the home. She suspected that Doe’s
father was sexually abusing her. Doe’s maternal grandparents took the children from
the home and, the next day, took them to the offices of the Hamilton County
Department of Job and Family Services. Doe was interviewed by a social worker
and, as a result of that interview, Doe reported that she had been systematically
abused by her father. She was then interviewed by a social worker from the
Mayerson Center at Children’s Hospital. As a result of those interviews, and the
investigation that followed, Doe’s father was convicted of multiple counts of rape and
sentenced to life in prison without the possibility of parole.
{¶4} On April 2, 2012, plaintiff-appellants, Doe’s court-appointed
guardians, filed a lawsuit against Children’s Hospital and Drs. Chua and Breech for
negligence for failing to obtain a consultation with an abuse specialist when Doe was
treated in the emergency department on January 3, 2008. The guardians also set
forth a statutory cause of action for liability based on a violation of R.C. 2151.421, and
2 O HIO F IRST D ISTRICT C OURT OF A PPEALS
made a claim for punitive damages. The trial court granted the motion for summary
judgment filed by the hospital and the doctors.
{¶5} In one assignment of error, Doe’s guardians claim that the grant of
summary judgment was in error. But on appeal, they have limited their argument to
their assertion that the doctors had been negligent in their treatment of Doe. They
have not argued that the trial court erred when it dismissed their claim premised on
the claimed violation of R.C. 2151.421. We therefore limit our analysis to that
common-law claim, and make no finding as to whether the statute would have
afforded relief in this case.
{¶6} Summary judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Civ.R.
56(C); see Mincy v. Farthing, 1st Dist. Hamilton No. C-081032, 2009-Ohio-5245, ¶
10. For summary judgment to be appropriate, reasonable minds can come to but one
conclusion and that conclusion is adverse to the nonmoving party, even after
reviewing the evidence in a light most favorable to the nonmoving party. Id. The
grant of summary judgment is reviewed de novo. Mincy at ¶ 11.
{¶7} In general, a common-law cause of action for negligence requires
proof of (1) a duty requiring the defendant to conform to a certain standard of
conduct, (2) breach of that duty, (3) a causal connection between the breach and
injury, and (4) damages. See Menifee v. Ohio Welding Prod., Inc., 15 Ohio St.3d 75,
77, 472 N.E.2d 707 (1984). The elements are the same for medical negligence.
Cromer v. Children's Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229,
29 N.E.3d 921, ¶ 23, citing Loudin v. Radiology & Imaging Servs., 128 Ohio St.3d
555, 2011-Ohio-1817, 948 N.E.2d 944, ¶ 13.
3 O HIO F IRST D ISTRICT C OURT OF A PPEALS
{¶8} The question before this court is whether, in this context, failing to
obtain a consultation with an abuse specialist is actionable in Ohio as common-law
medical negligence. We conclude that it is not. Medical-negligence claims in Ohio
arise within the context of a medical diagnosis, treatment, or procedure which the
plaintiff previously received. See Flowers v. Walker, 63 Ohio St.3d 546, 549, 589
N.E.2d 1284 (1992). Recognizing abuse by a third party and seeking a consultation
does not fall within the scope of medical-malpractice claims.
{¶9} The only other appellate district in Ohio to have addressed this issue
has reached this conclusion as well. David M. v. Erie Cty. Dept. of Human Servs.,
6th Dist. Erie No. E-93-40, 1994 Ohio App. LEXIS 2785 (June 30, 1994). In that
case, a child was treated at a hospital's emergency room for a fracture by two doctors.
The physicians suspected that the injury had been caused by child abuse, and one of
the doctors directed the hospital's social services department to contact the county
social services department to report a suspicion of child abuse. An investigation was
completed with a finding that no evidence of abuse existed. The patient was
discharged from the hospital and returned to his parents. Subsequently, the child
was injured as a result of abuse. The patient sued the hospital and the reporting
doctor. The trial court dismissed the patient's suit against both parties.
{¶10} On appeal the Sixth Appellate District concluded that no cause of
action existed. The court noted that
[a]ppellant appears to be arguing that a hospital and a physician owe a
common law duty to their child patient to diagnose the cause of
injuries sustained by the patient; to inform the proper agencies when
the hospital or physician suspects that the patient was abused in such a
manner sufficient to protect the child from further abuse; and that the
4 O HIO F IRST D ISTRICT C OURT OF A PPEALS
hospital should promulgate and enforce rules and regulations for
employees to follow regarding the diagnosis and prevention of child
abuse. Appellant also argues that the standard of care owed by the
hospital and physician to its child patient is higher than to an adult
patient because of the child's inability to protect himself or herself.
***
We have found no case which has ever held that a hospital or a
physician owes a child patient the duty to diagnose the cause of the
child's injury. Furthermore, we have found no case which has ever
held that a hospital or a physician owes a child patient the duty to
protect that child from further child abuse. Even if we consider an
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[Cite as Court Appointed Grdns. v. Children's Hosp. Med. Ctr., 2016-Ohio-5112.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
COURT APPOINTED GUARDIANS, : APPEAL NO. C-150449 Individually and on Behalf of Jane Doe, a TRIAL NO. A-1202505 Minor, : O P I N I O N. Plaintiffs-Appellants, :
vs. :
CHILDREN’S HOSPITAL MEDICAL : CENTER, : MICHAEL S. CHUA, M.D., : and : LESLEY L. BREECH, M.D.,
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 27, 2016
Gottesman & Associates, LLP, and Zachary Gottesman, for Plaintiffs-Appellants,
Dinsmore & Shohl, LLP, J. David Brittingham and Allison G. Knerr, for Defendants- Appellees. O HIO F IRST D ISTRICT C OURT OF A PPEALS
M OCK , Judge.
{¶1} On January 3, 2008, Jane Doe was taken to defendant-appellee
Children’s Hospital Medical Center’s emergency department for treatment for
vaginal bleeding. Doe’s father told personnel that she had fallen on a Lego toy, which
had become lodged in her vagina. Doe was four years old at the time.
{¶2} Doe was originally seen by defendant-appellee Dr. Michael S. Chua,
who was the attending physician in the emergency department. After an initial
examination, Chua called defendant-appellee Dr. Lesley L. Breech, a pediatric
gynecologist who was on call that day. Breech performed an examination under
anesthesia and surgically repaired Doe’s injuries. Doe was released the same day.
{¶3} Three months later, Doe’s mother called her father and asked him to
come and take Doe and Doe’s brother from the home. She suspected that Doe’s
father was sexually abusing her. Doe’s maternal grandparents took the children from
the home and, the next day, took them to the offices of the Hamilton County
Department of Job and Family Services. Doe was interviewed by a social worker
and, as a result of that interview, Doe reported that she had been systematically
abused by her father. She was then interviewed by a social worker from the
Mayerson Center at Children’s Hospital. As a result of those interviews, and the
investigation that followed, Doe’s father was convicted of multiple counts of rape and
sentenced to life in prison without the possibility of parole.
{¶4} On April 2, 2012, plaintiff-appellants, Doe’s court-appointed
guardians, filed a lawsuit against Children’s Hospital and Drs. Chua and Breech for
negligence for failing to obtain a consultation with an abuse specialist when Doe was
treated in the emergency department on January 3, 2008. The guardians also set
forth a statutory cause of action for liability based on a violation of R.C. 2151.421, and
2 O HIO F IRST D ISTRICT C OURT OF A PPEALS
made a claim for punitive damages. The trial court granted the motion for summary
judgment filed by the hospital and the doctors.
{¶5} In one assignment of error, Doe’s guardians claim that the grant of
summary judgment was in error. But on appeal, they have limited their argument to
their assertion that the doctors had been negligent in their treatment of Doe. They
have not argued that the trial court erred when it dismissed their claim premised on
the claimed violation of R.C. 2151.421. We therefore limit our analysis to that
common-law claim, and make no finding as to whether the statute would have
afforded relief in this case.
{¶6} Summary judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Civ.R.
56(C); see Mincy v. Farthing, 1st Dist. Hamilton No. C-081032, 2009-Ohio-5245, ¶
10. For summary judgment to be appropriate, reasonable minds can come to but one
conclusion and that conclusion is adverse to the nonmoving party, even after
reviewing the evidence in a light most favorable to the nonmoving party. Id. The
grant of summary judgment is reviewed de novo. Mincy at ¶ 11.
{¶7} In general, a common-law cause of action for negligence requires
proof of (1) a duty requiring the defendant to conform to a certain standard of
conduct, (2) breach of that duty, (3) a causal connection between the breach and
injury, and (4) damages. See Menifee v. Ohio Welding Prod., Inc., 15 Ohio St.3d 75,
77, 472 N.E.2d 707 (1984). The elements are the same for medical negligence.
Cromer v. Children's Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229,
29 N.E.3d 921, ¶ 23, citing Loudin v. Radiology & Imaging Servs., 128 Ohio St.3d
555, 2011-Ohio-1817, 948 N.E.2d 944, ¶ 13.
3 O HIO F IRST D ISTRICT C OURT OF A PPEALS
{¶8} The question before this court is whether, in this context, failing to
obtain a consultation with an abuse specialist is actionable in Ohio as common-law
medical negligence. We conclude that it is not. Medical-negligence claims in Ohio
arise within the context of a medical diagnosis, treatment, or procedure which the
plaintiff previously received. See Flowers v. Walker, 63 Ohio St.3d 546, 549, 589
N.E.2d 1284 (1992). Recognizing abuse by a third party and seeking a consultation
does not fall within the scope of medical-malpractice claims.
{¶9} The only other appellate district in Ohio to have addressed this issue
has reached this conclusion as well. David M. v. Erie Cty. Dept. of Human Servs.,
6th Dist. Erie No. E-93-40, 1994 Ohio App. LEXIS 2785 (June 30, 1994). In that
case, a child was treated at a hospital's emergency room for a fracture by two doctors.
The physicians suspected that the injury had been caused by child abuse, and one of
the doctors directed the hospital's social services department to contact the county
social services department to report a suspicion of child abuse. An investigation was
completed with a finding that no evidence of abuse existed. The patient was
discharged from the hospital and returned to his parents. Subsequently, the child
was injured as a result of abuse. The patient sued the hospital and the reporting
doctor. The trial court dismissed the patient's suit against both parties.
{¶10} On appeal the Sixth Appellate District concluded that no cause of
action existed. The court noted that
[a]ppellant appears to be arguing that a hospital and a physician owe a
common law duty to their child patient to diagnose the cause of
injuries sustained by the patient; to inform the proper agencies when
the hospital or physician suspects that the patient was abused in such a
manner sufficient to protect the child from further abuse; and that the
4 O HIO F IRST D ISTRICT C OURT OF A PPEALS
hospital should promulgate and enforce rules and regulations for
employees to follow regarding the diagnosis and prevention of child
abuse. Appellant also argues that the standard of care owed by the
hospital and physician to its child patient is higher than to an adult
patient because of the child's inability to protect himself or herself.
***
We have found no case which has ever held that a hospital or a
physician owes a child patient the duty to diagnose the cause of the
child's injury. Furthermore, we have found no case which has ever
held that a hospital or a physician owes a child patient the duty to
protect that child from further child abuse. Even if we consider an
abused child's medical condition to be that of being an abused child,
this condition does not precipitate further abuse. Further abuse is
caused solely by the independent actions of a third party. This court
will not impose a common law duty upon any hospital or physician to
prevent abused children from further child abuse. Doctors are not
public servants. They have only the duty to provide reasonable
medical care once they undertake such a duty. This duty ends once the
medical care for which treatment was sought is completed, the doctor
is discharged, or the doctor properly withdraws from the case.
Diagnosing and preventing child abuse does not constitute medical
care.
Id. at *5-6, citing McCafferty & Meyer, Medical Malpractice: Basis of Liability,
Sections 2.02, 2.04, 2.09, and 2.16, 15-26 (1985).
5 O HIO F IRST D ISTRICT C OURT OF A PPEALS
{¶11} We agree with the analysis of the Sixth Appellate District that
diagnosing and preventing child abuse does not constitute medical care. There is no
common-law duty to report or prevent child abuse. See, e.g., Roe v. Planned
Parenthood Southwest Ohio Region, 122 Ohio St.3d 399, 2009-Ohio-2973, 912
N.E.2d 61, ¶ 43 (no common-law duty to report child abuse); Fed. Steel & Wire Corp.
v. Runlin Const. Co., 45 Ohio St.3d 171, 174, 543 N.E.2d 769 (1989) (no common-law
duty to foresee the criminal acts of others).
{¶12} While Doe’s ordeal was horrific, the fact remains that the doctors’
failure to obtain a consultation with an abuse specialist did not constitute medical
negligence, as seeking a consultation of that nature does not constitute medical care.
Doe’s guardians have not claimed that the treatment she received in the emergency
department fell below the applicable standard of care. They have alleged nothing
about Dr. Chua’s initial examination, and nothing about Dr. Breech’s examination
under anesthesia and her treatment of the wound that was improper in any way. As
the Sixth Appellate District noted, their duty ended once the medical care for which
treatment was sought was completed. Accordingly, we overrule the sole assignment
of error presented by Doe’s guardians, and we affirm the judgment of the trial court.
Judgment affirmed.
CUNNINGHAM, P.J., and DEWINE, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.