[Cite as Sanford v. Ohio Dept. of Health, 2011-Ohio-1847.]

                                                        Court of Claims of Ohio
                                                                         The Ohio Judicial Center
                                                                 65 South Front Street, Third Floor
                                                                            Columbus, OH 43215
                                                                  614.387.9800 or 1.800.824.8263
                                                                             www.cco.state.oh.us




ROGER L. SANFORD

        Plaintiff

        v.

OHIO DEPARTMENT OF HEALTH

        Defendant
        Case No. 2007-05946

Judge Clark B. Weaver Sr.

DECISION




        {¶ 1} Plaintiff brought this action alleging claims which the court construes as
negligence and negligent infliction of emotional distress. The issues of liability and
damages were bifurcated and the case proceeded to trial on the issue of liability.
        {¶ 2} This case arises as a result of complaints that plaintiff and his sister,
Bonnie Shafer,1 filed with defendant, the Ohio Department of Health (ODH).                   The
complaints concerned care provided to their father, Louis Sanford,2 by two Ohio nursing
homes. ODH is responsible for inspection, certification, and licensing of certain types of
nursing facilities. It is also authorized to investigate complaints concerning a variety of
issues, including          compliance with Ohio quality of care regulatory requirements.
(Plaintiff’s Exhibit 2.)
        {¶ 3} On June 26, 2006, plaintiff and Shafer filed a complaint with ODH
regarding Heartland of Riverview Nursing Home in South Point, Ohio. They alleged,


1
 Shafer is not a plaintiff in the case.
among other things, that their father fell from his bed because it was not equipped with
safety rails, and that he did not receive prompt diagnostic or follow-up care subsequent
to the fall.   The complaint was investigated by ODH and one of the allegations,
concerning a blister on their father’s foot, was substantiated; however, no citations were
issued because the facility was in compliance with all pertinent regulations at the time
that ODH surveyors visited. Plaintiff contends that ODH was negligent in failing to issue
any citations to that facility.
       {¶ 4} On September 14, 2006, plaintiff filed both a complaint with ODH and a
packet of supporting evidence regarding care provided to his father while at Greenbriar
Healthcare Center (Greenbriar) in Wheelersburg, Ohio.               The primary complaint
registered by plaintiff and Shafer was that the nursing staff failed to administer
antibiotics that had been ordered by a hospital physician prior to Sanford’s arrival at
Greenbriar. The complaint was investigated by ODH, but none of the allegations were
substantiated.     Plaintiff asserts that the evidence he submitted corroborated his
allegations, particularly the statements of two Greenbriar employees, with whom he had
spoken. Plaintiff testified that the evidence was returned to him and was not considered
in the investigation. He then requested that the investigation be reopened for “good
cause,” so that the evidence could be considered. According to plaintiff, ODH refused
to reopen the case. He contends that ODH was negligent in failing to properly conduct
the investigation, in failing to consider his evidence, and in refusing to reopen the case.
Plaintiff asserts that he has suffered extreme emotional distress, for which he has
sought medical attention, professional counseling, and drug therapy, in connection with
ODH’s investigation of his complaints.
       {¶ 5} In support of his claims, plaintiff presented his own testimony and that of
Shafer, as well as numerous exhibits documenting their father’s nursing-home care and
their efforts to have the two facilities investigated and cited for quality-of-care violations.
In response, ODH presented the testimony of Hahn Le, then supervisor of the Provider
and Consumer Services Unit for the Division of Quality Assurance; Suzette Mace, a
health care facility surveyor; and Melanie Wood, then an assistant district office
supervisor in the Division of Quality Assurance.

2
References to “Sanford” in this case are to Louis Sanford.
        {¶ 6} “It is fundamental that in order to establish a cause of action for
negligence, the plaintiff must show (1) the existence of a duty, (2) a breach of duty, and
(3) an injury proximately resulting therefrom.” Armstrong v. Best Buy Company, Inc., 99
Ohio St.3d 79, 81, 2003-Ohio-2573, citing Menifee v. Ohio Welding Prod., Inc. (1984),
15 Ohio St.3d 75, 77.
        {¶ 7} In this case, plaintiff failed to allege or prove any compensable injury
proximately resulting from ODH’s alleged negligence. Rather, he asserted only that he
has suffered extreme emotional distress.       It is well-settled that a negligence action
“‘cannot be predicated on mental suffering alone, physical sickness resulting therefrom
is not actionable because it is not the proximate result of defendant's negligence * * *
where there is no actual, physical impact and the wrong is not wilful, damages cannot
be allowed for physical sickness or disability resulting merely from mental anguish * *
*.’”   Barnett v. Sun Oil Co. (1961), 113 Ohio App. 449, 450-451, quoting Mees v.
Western Union Telegraph Co., 55 F. 2d, 691.
        {¶ 8} Nonetheless, even if plaintiff had established an actionable claim of
negligence, the weight of the evidence demonstrated that ODH conducted prompt,
thorough investigations of all allegations asserted in plaintiff’s and Shafer’s complaints,
that its findings were well-documented, and that its ultimate determinations were based
upon reliable, trustworthy evidence.      In addition, based upon Wood’s competent,
credible testimony, the court is persuaded that plaintiff’s additional evidence concerning
the Greenbriar complaint was received by ODH and given due consideration.
Therefore, the preponderance of the evidence did not substantiate plaintiff’s claim of
negligence.
        {¶ 9} With respect to any claim of negligent infliction of emotional distress, Ohio
courts limit recovery on such claims to those instances in which an individual was a
bystander to an accident or was in fear of physical injury to his own person. Paugh v.
Hanks (1983), 6 Ohio St.3d 72; High v. Howard (1992), 64 Ohio St.3d 82. Further, the
emotional distress must be such that “a reasonable person, normally constituted, would
be unable to cope adequately with the mental distress engendered by the
circumstances of the case.” Paugh v. Hanks, supra, paragraph three of the syllabus.
No such circumstances are alleged in plaintiff’s complaint nor were any facts of that
nature presented at trial. Accordingly, any claim of negligent infliction of emotional
distress also must fail.
       {¶ 10} For the foregoing reasons, judgment shall be rendered in favor of
defendant.




                                             Court of Claims of Ohio
                                                                       The Ohio Judicial Center
                                                               65 South Front Street, Third Floor
                                                                          Columbus, OH 43215
                                                                614.387.9800 or 1.800.824.8263
                                                                           www.cco.state.oh.us




ROGER L. SANFORD

      Plaintiff

      v.

OHIO DEPARTMENT OF HEALTH

      Defendant
      Case No. 2007-05946

Judge Clark B. Weaver Sr.

JUDGMENT ENTRY




       This case was tried to the court on the issue of liability.          The court has
considered the evidence and, for the reasons set forth in the decision filed concurrently
herewith, judgment is rendered in favor of defendant. Court costs are assessed against
plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of
entry upon the journal.



                                         _____________________________________
                                         CLARK B. WEAVER SR.
                                  Judge

cc:


Stephanie D. Pestello-Sharf         Roger L. Sanford
Assistant Attorney General          402 12th Street West
150 East Gay Street, 18th Floor     Huntington, West Virginia 25704
Columbus, Ohio 43215-3130

LH/cmd
Filed March 17, 2011
To S.C. reporter April 12, 2011
