[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.
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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


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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.




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       {¶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


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       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).




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       {¶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.




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