Ohio Supreme Court OKs Emotional Distress Claim in Malpractice Suit to Proceed

The Ohio Supreme Court has ruled that a cancer patient may pursue an emotional distress claim that alleges a faulty diagnosis let undetected cancer spread.

The Court upheld an appellate court decision in a lawsuit filed by Lonna Loudin in Ohio’s Summit County. Justices say the claim is based on physical injury and may be pursued as part of a medical malpractice lawsuit.

The suit seeks damages from Radiology & Imaging Services and Dr. Richard Patterson; Loudin said they misdiagnosed a mammogram. A year after the defendants deemed the results of the mammogram to be normal, Loudin found a lump in her breast that turned out to be cancerous.

“Loudin submitted deposition testimony of a radiology expert stating that her 2003 mammogram showed a visible one-centimeter mass where the two-centimeter mass had been detected a year later, and that the failure of Dr. Patterson to detect that mass during his analysis of the 2003 mammogram results was a deviation from the applicable standard of care,” according to documents released by the Court.

The defendants moved to have the lawsuit dismissed, saying damages could not be granted for the claim. A lower court agreed. It said the growth or spread of cancer was not recognized in Ohio as a physical injury that would support a medical negligence claim.

The 9th District Court of Appeals reversed the lower court’s decision. In the Supreme Court’s 7-0 opinion affirming the 9th District’s ruling, Justice Yvette McGee Brown wrote: “The appellants concede that Loudin adequately established duty and breach for purposes of summary judgment by presenting expert testimony that the appellants’ failure to detect her cancer in 2003 was a deviation from the applicable standard of care.”

They argue, she said, “on the element of damages, and contend that Loudin provided no evidence that the appellants’ failure to timely diagnose her cancer proximately caused her any physical injury.”

Agreeing with trial court’s conclusion regarding “compensable physical injuries in Ohio,” the defendants also “assert that the course of treatment for [Loudin’s] cancer would have been no less intensive had it been detected in 2003,” Brown wrote. “These arguments are not well taken.”

The case is: 2010-0297. Loudin v. Radiology & Imaging Servs., Inc.