[Cite as Yu v. Ohio State Univ. Med. Ctr., 2017-Ohio-8697.]




JIANFENG YU                                            Case No. 2015-00001

       Plaintiff/Cross-Claim Defendant                 Judge Patrick M. McGrath
                                                       Magistrate Holly True Shaver
       v.
                                                       DECISION
THE OHIO STATE UNIVERSITY
MEDICAL CENTER

       Defendant/Third-Party Plaintiff

       v.

PACIFIC INTERPRETERS
INCORPORATED aka PACIFIC
TRANSLATORS, INC.

       Third-Party Defendant/Cross-Claim
       Plaintiff



        {¶1} On June 23, 2017, third-party defendant/cross-claim plaintiff, Pacific
Interpreters, Inc. (Pacific), filed a motion for summary judgment, pursuant to Civ.R. 56.
On August 25, 2017, defendant/third-party plaintiff, The Ohio State University Medical
Center (OSUMC), filed a motion for summary judgment.                   On September 19, 2017,
plaintiff/cross-claim defendant, Jianfeng Yu (plaintiff), filed a motion to “file hard copies
nunc pro tunc” of his brief in opposition to OSUMC’s motion, due to electronic filing
difficulties. Plaintiff’s September 19, 2017 motion is GRANTED. Responses to the
pending motions have been filed by all parties. The motions for summary judgment are
now before the court for a non-oral hearing pursuant to Civ.R. 56 and L.C.C.R. 4.
        {¶2} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
Case No. 2015-00001                         -2-                                DECISION


there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).

FACTS
       {¶3} Plaintiff’s native language is Mandarin Chinese, and he has limited ability to
understand English.     In January 2013, plaintiff went to his primary care physician,
Dr. John McConaghy, with complaints of chest pain. Plaintiff was diagnosed with a
stomach condition that causes ulcers.             During this office visit, Dr. McConaghy
recommended that plaintiff undergo a colonoscopy to screen for cancer, which is a
routine test for patients over 50 years of age.
       {¶4} On January 30, 2013, plaintiff presented to Stoneridge Medical Center to
undergo a screening colonoscopy, performed by William Emlich, D.O., an independent
contractor for OSUMC. Plaintiff informed the medical staff that he needed a Mandarin
Chinese interpreter due to his limited ability to understand English. Krista Westerheide,
R.N., the nurse assigned to the pre-procedure area, placed a call to the OSU language
line and was put in contact with an interpreter by the name of Xinxing Zhou, an
independent contractor of Pacific who is fluent in Mandarin Chinese. The interpreter
services were performed over the telephone, with both plaintiff and the nurse on the line
to simultaneously communicate with Zhou. With Zhou’s help, Westerheide obtained
plaintiff’s medical history and determined that he had complied with the bowel
Case No. 2015-00001                          -3-                                  DECISION


preparation order. Then Dr. Emlich entered the pre-procedure area and discussed the
procedures with plaintiff with the assistance of Zhou.
       {¶5} Differing versions of what occurred next are as follows. Plaintiff testified in
his deposition that on the day of the procedure, an interpreter was on the phone call
during his discussion with the nurse for about 10 minutes, then during his discussion
with the doctor for about 10 minutes, then the call ended. After the call, the nurse
presented two forms to him in English that he signed but did not understand. (Yu
deposition, pgs. 59-61.) One of those forms was the informed consent form that bears
his signature.    (Id.; Plaintiff’s Exhibit 3.)    Plaintiff testified that he received “no
information” regarding the risks of the procedure, and that no one read the informed
consent form language to him. (Yu deposition, pgs. 33, 81.)
       {¶6} In contrast, Dr. Emlich testified in his deposition that, although he does not
specifically remember the details of his encounter with plaintiff, he has a routine that he
follows when discussing and explaining the risks of the procedure, and he described
how he would routinely obtain informed consent over the language line. Dr. Emlich
testified that he has the informed consent form in front of him when he discusses risks
of the procedure, that he generally tells the patient about the risks associated with a
colonoscopy, and that he typically goes through at least the language in the “box” on the
form, which includes risk of a perforation. (Plaintiff’s Exhibit 3; Emlich deposition, p. 40.)
Dr. Emlich testified that an interpreter was on the telephone line when he discussed the
risks of the procedure.     (Id., pgs. 27-37.)     Nurse Westerheide averred that at the
conclusion of Dr. Emlich’s conversation with plaintiff, she witnessed plaintiff sign the
informed consent form. (Affidavit of Westerheide, ¶ 5.) Although the court notes that
issues of fact exist with regard to what was said during the phone call, the court shall
adopt plaintiff’s version of the facts for purposes of these motions.
       {¶7} During the procedure, Dr. Emlich perforated plaintiff’s colon. Plaintiff was
rushed to emergency surgery which was performed by Dr. David Evans. Plaintiff was
Case No. 2015-00001                         -4-                                 DECISION


hospitalized for six days, and he has suffered personal injury including a large
abdominal scar and the removal of part of his colon.

OSUMC’S MOTION FOR SUMMARY JUDGMENT
   A. Lack of Informed Consent
       {¶8} On August 16, 2016, OSUMC filed a motion for summary judgment, wherein
it argued that plaintiff could not prevail against it on a claim of lack of informed consent
because that cause of action lies against the physician, not the hospital. The court
found that genuine issues of material fact existed with regard to whether OSUMC owed
an independent duty to provide adequate translation services to its patients, separate
from the physician’s duty to provide informed consent. It is not disputed that Dr. Emlich
was not an employee of OSUMC, rather, he was an independent contractor. (Affidavit
of Susan Hart, with independent contractor agreement attached.) R.C. 2317.54 states,
in part: “No hospital, home health agency, ambulatory surgical facility, or provider of a
hospice care program or pediatric respite care program shall be held liable for a
physician’s failure to obtain an informed consent from the physician’s patient prior to a
surgical or medical procedure or course of procedures, unless the physician is an
employee of the hospital, home health agency, ambulatory surgical facility, or provider
of a hospice care program or pediatric respite care program.” (Emphasis added.) Thus,
construing the evidence most strongly in plaintiff’s favor, that Dr. Emlich failed to inform
him during his discussion of the procedure while the interpreter was on the call that a
perforated colon was a risk of colonoscopy, the only reasonable conclusion is that
plaintiff’s claim of lack of informed consent would lie against Dr. Emlich, not OSUMC.
       {¶9} In his response, plaintiff alleges that his claim is not for lack of informed
consent, or the medical negligence of Dr. Emlich, but, rather, for the negligence of
OSUMC to provide adequate translation services. In plaintiff’s complaint, he asserts
that OSUMC provided and procured various services for him, including an interpreter,
and undertook to supervise quality assurance and other standards, provide supplies,
Case No. 2015-00001                          -5-                                 DECISION


provide financial support, and otherwise exercise indirect control and management of
the interpreter provided.    (Complaint, ¶ 3.)     Plaintiff further alleges that OSUMC
undertook to provide a translation service to plaintiff of material disclosures relating to
the colonoscopy; and that OSUMC failed to act reasonably and breached the duty of
care in providing translation services. (Id., ¶ 14-15.) Plaintiff alleges that as a result of
OSUMC’s negligence, he was never informed of the full potential serious risk of
undergoing the colonoscopy; that he did not give informed consent to the colonoscopy;
that he underwent a colonoscopy; that during the procedure he suffered a tear to his
colon; that such a tear is a known risk of colonoscopy that should have been disclosed
to him in Mandarin Chinese but was not; and that as a result of the tear of his colon, he
experienced personal injury and pain and suffering. (Id., ¶ 17-27.)
       {¶10} “The tort of lack of informed consent is established when:
       “(a) The physician fails to disclose to the patient and discuss the material risks
and dangers inherently and potentially involved with respect to the proposed therapy, if
any;
       “(b) the unrevealed risks and dangers which should have been disclosed by the
physician actually materialize and are the proximate cause of the injury to the patient,
and;
       “(c) a reasonable person in the position of the patient would have decided
against the therapy had the material risks and dangers inherent and incidental to
treatment been disclosed to him or her prior to the therapy.”         Nickell v. Gonzalez,
17 Ohio St.3d 136 (1985), syllabus.
       {¶11} Although plaintiff argues in his response that he is not pursuing a claim of
lack of informed consent, the allegations in his complaint and his deposition testimony
clearly show that the underlying nature of plaintiff’s claim is lack of informed consent.
Indeed, plaintiff testified in his deposition that he would not have undergone a screening
colonoscopy if he had been informed of the risk of a perforated colon, because it was
Case No. 2015-00001                         -6-                                    DECISION


just a recommended procedure from his family doctor. (Yu deposition, p. 30.) Upon
review of the evidence permitted by Civ.R. 56, reasonable minds can conclude only that
plaintiff’s claim is, in fact, for lack of informed consent; that Dr. Emlich was not an
employee of OSUMC; and, that, pursuant to R.C. 2317.54, plaintiff cannot prevail on
such a claim against OSUMC as a matter of law. As such, the court finds that OSUMC
is entitled to summary judgment on the lack of informed consent claim in plaintiff’s
complaint.

   B. Negligence
      {¶12} The court notes that plaintiff has cited no case law to support his assertions
that Ohio    recognizes    a   cause   of    action    against   hospitals   for    negligent
translation/interpretation services. Assuming, arguendo, that plaintiff’s complaint states
a claim for negligence, plaintiff must present evidence that OSUMC owed him a duty,
that OSUMC’s acts or omissions resulted in a breach of that duty, and that the breach
proximately caused his injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 81,
2003-Ohio-2573, citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77
(1984).
      {¶13} OSUMC argues that plaintiff cannot show that it breached any duty owed to
him, because OSUMC provided him with a qualified interpreter through its contract with
Pacific, and plaintiff has failed to point to any evidence to show that OSUMC failed to
appropriately monitor the interpreter services that were provided.           To support its
argument, OSUMC points to the deposition of Milly Valverde, its Associate Director of
Destination Medicine and Interpreter Services.        Valverde explained that interpreters
perform spoken language services and translators provide written language services.
Valverde testified that there are two types of interpreters who assist patients at
defendant’s medical center.     First, a group of approximately 15-20 employees are
generally assigned at the hospital and provide in-person interpretation.           (Valverde
deposition, pgs. 9-11.) Second, the hospital has contracted with a third-party vendor,
Case No. 2015-00001                          -7-                                  DECISION


Pacific, to provide telephone interpretation. (Id., pgs. 21, 29-30.) Valverde explained
that records show that a 27-minute call was conducted with a Mandarin Chinese
interpreter from Pacific for plaintiff on the date of his procedure.       (Id., pgs. 55-57.)
Valverde testified that calls are not recorded due to privacy concerns. (Id., pgs. 83-84.)
       {¶14} Valverde stated that typically a dual telephone headset is used in a
telephone interpretation, so that both the patient and the medical provider are on the
phone call at the same time with the interpreter. (Valverde affidavit, ¶ 6.) According to
Valverde, the interpreter that assisted plaintiff had met the qualifications and training
that were required for medical interpreters per the contract with Pacific.         (Valverde
affidavit, ¶ 4-5.) Plaintiff testified in his deposition that the interpreter warned him only
not to drive or make any important decisions. (Yu deposition, p. 30.) However, plaintiff
also testified that he understood the interpreter and he did not have concerns that she
was not interpreting accurately. (Id., pgs. 85-86.) In plaintiff’s first affidavit, he avers
that he agreed to undergo the procedure based upon information that was provided by
the interpreter. (Affidavit of Yu, ¶ 6.)
       {¶15} OSUMC argues that if Dr. Emlich orally warned plaintiff of the risk of a torn
colon during his discussion with Zhou, and Zhou failed to repeat Dr. Emlich’s warning of
such a risk to plaintiff in Mandarin Chinese, plaintiff’s claim would lie against Pacific, not
OSUMC, because of Zhou’s negligence in performing interpreter services under the
contract.   OSUMC attached to its third-party complaint a copy of the contractual
agreement and subsequent addenda with Pacific as Exhibits A-E. OSUMC asserts that
pursuant to the contract terms, Pacific was to provide medical interpretation services for
limited English and non-English speaking patients at OSUMC facilities. (Third-Party
Complaint, ¶ 5.) OSUMC points to the contract language: “Pacific shall indemnify and
hold The OSUMC harmless from any loss or liability arising from performing services
under the Agreement.” (Exhibit A to Third-Party Complaint, ¶ 12, page 4 of 9.) Indeed,
plaintiff acknowledged in his deposition that he commenced litigation against Pacific in
Case No. 2015-00001                         -8-                                 DECISION


the Franklin County Court of Common Pleas, and received a settlement in that litigation
for the same incident under which this claim arises. (Yu deposition, p. 28; Exhibit A to
Pacific’s cross-claim.)   OSUMC argues that if Zhou failed to interpret Dr. Emlich’s
warnings adequately, OSUMC would be entitled to indemnity from Pacific pursuant to
the contract.
       {¶16} In response to OSUMC’s argument, plaintiff asserts that OSUMC’s liability
arises from its failure to adhere to its own internal policies when it failed to provide him
with either a written informed consent form in Mandarin Chinese or an interpreter in-
person or via videoconference to sight-translate the informed consent form to him. To
support his argument, plaintiff provided copies of OSUMC’s internal policies that he
obtained during discovery, and attached those copies to both his own supplemental
affidavit, and an affidavit from his counsel.     Upon review of plaintiff’s supplemental
affidavit, the court notes that many of the assertions in this affidavit are not based upon
plaintiff’s personal knowledge, but, rather, are legal conclusions, in violation of Civ.R.
56(E). Therefore, plaintiff’s supplemental affidavit does not comply with Civ.R. 56 and it
shall not be considered. However, OSUMC does not deny that the policies that were
submitted in plaintiff’s response are its own, therefore, the court shall consider those
policies in determining these motions.
       {¶17} Plaintiff asserts that OSUMC’s internal policies require that a written
informed consent form be provided to him in his native language. However, informed
consent can be provided orally; it need not be in writing. Bedel v. Univ. of Cincinnati
Hosp., 107 Ohio App.3d 420 (10th Dist.1995), citing Cardinal v. Family Foot Care
Centers, Inc., 40 Ohio App.3d 181 (8th Dist.1987). The court notes that in a case that is
not directly on point, the Third Appellate District of Ohio has found that although a claim
was captioned as failure of a hospital to “verify” informed consent, the claim would be
classified as a medical claim pursuant to R.C. 2305.11(D)(3) because it arose out of the
medical treatment of the patient. Grandillo v. Montesclaros, 137 Ohio App.3d 691 (3rd
Case No. 2015-00001                          -9-                                 DECISION


Dist.2000).   That court further found that since the physician in that case was an
independent contractor, R.C. 2317.54 would bar such a claim against the hospital,
despite plaintiff’s assertion that it was a negligence claim. Id.
       {¶18} Even if OSUMC violated its own internal policies on interpretation and
translation services, “[a] violation of an internal policy does not establish the standard of
care.” Marsh v. Heartland Behavioral Health Ctr., 10th Dist. Franklin No. 09AP-630,
2010-Ohio-1380, ¶ 35, citing Vince v. City of Canton, 5th Dist. Stark No. 1997CA00299,
1998 Ohio App. LEXIS 1989 (Apr. 13, 1998). In addition, a governmental agency’s
internal policies are not law and, thus, do not establish a duty. Albright v. Univ. of
Toledo, 10th Dist. Franklin No. 01AP-130, 2001 Ohio App. LEXIS 4158.
       {¶19} Moreover, there is a difference between the concept of informed consent
and the validity of a written informed consent form. “R.C. 2317.54 provides that written
consent is presumed to be valid and effective if it conforms to the specific requirements
described by that section. The use of a written consent form under R.C. 2317.54 has
no separate impact on the common law rights and liabilities that exist between a
physician and a patient.” Werden v. Children’s Hosp. Med. Ctr., 1st Dist. Hamilton No.
C-040889, 2006-Ohio-4600, ¶ 133. Even assuming that plaintiff was presented with the
informed consent form in English after the interpreter had ended the call and plaintiff
could not read the form, the only reasonable conclusion is that those facts would
support a claim for lack of informed consent, which, again, would not lie against
OSUMC.
       {¶20} It is not disputed that OSUMC provided the telephonic interpreter services
of a qualified Mandarin Chinese interpreter through Pacific for plaintiff. Furthermore,
plaintiff has pointed to no evidence from which to infer that OSUMC knew or should
have known that the interpreter did not interpret Dr. Emlich’s words accurately. Absent
a legal duty to provide a written informed consent form in a language other than English,
Case No. 2015-00001                         -10-                                 DECISION


the only reasonable conclusion is that OSUMC did not breach a duty it owed to plaintiff,
and, accordingly, OSUMC is entitled to summary judgment as a matter of law.

PACIFIC’S MOTION FOR SUMMARY JUDGMENT
       {¶21} In its motion, Pacific argues that it is entitled to summary judgment on
OSUMC’s third-party complaint against it for indemnity because OSUMC cannot
establish that any act or omission on the part of Pacific was a proximate cause of
plaintiff’s injuries. Pacific argues that it owed no duty to create any written document in
Mandarin Chinese because the contract that it had with OSUMC was solely for
interpreter services via telephone, and that OSUMC has pointed to no evidence that
Zhou did not provide an accurate interpretation for plaintiff. However, inasmuch as the
court has found that OSUMC is entitled to summary judgment, the claims set forth in
OSUMC’s third-party complaint for indemnity are rendered moot. See Wise v. Gursky,
66 Ohio St.2d 241 (1981.) Accordingly, Pacific’s motion for summary judgment is also
DENIED as moot.

PACIFIC’S CROSS-CLAIM AGAINST PLAINTIFF
       {¶22} In Pacific’s cross-claim against plaintiff, Pacific alleges breach of contract,
based upon the settlement agreement in the connected action and seeks a declaratory
judgment that plaintiff is required to fully indemnify it in the event of a judgment in favor
of OSUMC as against Pacific. The language in the settlement agreement states that
in consideration of the sum of $17,500, plaintiff releases both Xinxing Zhou and
Pacific from any and every claim arising from the complaint filed in the Franklin
County Common Pleas Case Number 14CV004395.                 (Pacific’s Exhibit A.)   Plaintiff
acknowledged signing the agreement, and that it was based upon the same facts as
alleged in his complaint in this court. (Yu deposition, p. 28.) Construing the evidence
most strongly in favor of plaintiff, the only reasonable conclusion is that based upon the
settlement and release, plaintiff is estopped from any further recovery against Pacific or
Case No. 2015-00001                       -11-                               DECISION


Zhou in this matter.   Accordingly, Pacific’s cross-claim for declaratory judgment of
indemnity is DENIED as moot.       Pacific’s cross-claim for breach of contract is also
DENIED as moot, with the understanding that plaintiff is estopped from any further
recovery against Pacific or Zhou in light of the settlement agreement and release.




                                              PATRICK M. MCGRATH
                                              Judge
[Cite as Yu v. Ohio State Univ. Med. Ctr., 2017-Ohio-8697.]




JIANFENG YU                                            Case No. 2015-00001

       Plaintiff/Cross-Claim Defendant                 Judge Patrick M. McGrath
                                                       Magistrate Holly True Shaver
       v.
                                                       JUDGMENT ENTRY
THE OHIO STATE UNIVERSITY
MEDICAL CENTER

       Defendant/Third-Party Plaintiff

       v.

PACIFIC INTERPRETERS
INCORPORATED aka PACIFIC
TRANSLATORS, INC.

       Third-Party Defendant/Cross-Claim
       Plaintiff



        {¶23} A non-oral hearing was conducted in this case upon OSUMC and Pacific’s
cross-motions for summary judgment. For the reasons set forth in the decision filed
concurrently herewith, OSUMC’s motion for summary judgment is GRANTED and
judgment is rendered in favor of OSUMC. Pacific’s motion for summary judgment is
DENIED as moot. All previously scheduled events are VACATED. Court costs are
assessed against plaintiff/cross-claim defendant. The clerk shall serve upon all parties
notice of this judgment and its date of entry upon the journal.




                                                         PATRICK M. MCGRATH
                                                         Judge
Case No. 2015-00001               -13-                               DECISION


cc:
Daniel R. Forsythe                  Nicholas B. Buzzy
Jeffrey L. Maloon                   Thomas J. Cabral
Assistant Attorneys General         6th Floor, Bulkley Building
150 East Gay Street, 18th Floor     1501 Euclid Avenue
Columbus, Ohio 43215-3130           Cleveland, Ohio 44115

Richard T. Robol                    Steven D. Strang
433 West Sixth Avenue               35 North 4th Street, Suite 200
Columbus, Ohio 43201                Columbus, Ohio 43215

Filed October 27, 2017
Sent to S.C. Reporter 11/27/17
