[Cite as Rosenshine v. Med. College Hosp., 2012-Ohio-6366.]



                                                       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



DAWN ROSENSHINE, Exec.

       Plaintiff

       v.

MEDICAL COLLEGE HOSPITALS

       Defendant

Case No. 1998-04701

Magistrate Holly True Shaver

DECISION OF THE MAGISTRATE

        {¶ 1} On June 26, 2012, the Tenth District Court of Appeals issued a decision
that reversed this court’s prior judgment in favor of defendant, rendered judgment in
favor of plaintiff as to the issue of liability, and remanded the matter to this court for
further proceedings on the issue of damages. On November 1, 2012, this court heard
oral argument and accepted additional evidence with regard to the issue of damages.
        {¶ 2} On May 30, 1995, Theresa Dougherty was admitted to defendant’s hospital
for a cardiac catheterization.1 One of the procedures that Theresa underwent during
that visit was a chest x-ray to exclude the possibility of myocardial infarction. The x-ray
was taken and a report was prepared by a radiologist, who noted a “right upper lung
mass, measuring 2.5 centimeters.” On June 2, 1995, Theresa was discharged from
defendant’s hospital, but the discharge summary did not refer to the x-ray, and no one
informed Theresa of the results.             In November 1996, Theresa was diagnosed with




        1
           Plaintiff’s decedent, Theresa Dougherty, shall be referred to as Theresa throughout this decision.
Plaintiff, Dawn Rosenshine, is Theresa’s daughter and the executor of Theresa’s estate.
Case No. 1998-04701                        -2-                                DECISION

cancer in both of her lungs, which had spread to her brain and was inoperable. Theresa
died on November 3, 1997.
       {¶ 3} In its decision, the Tenth District Court of Appeals held that it was against
the manifest weight of the evidence for this court to conclude that the failure to diagnose
the mass in Theresa’s right lung was not the proximate cause of her death. In so
holding, the Court of Appeals found most persuasive Dr. Robert J. Steele’s opinion that
Theresa’s “prognosis in May 1995, had she been diagnosed and treated, was 70
percent survival * * *.” Rosenshine v. Medical College Hosps., 10th Dist. No. 11AP-374,
2012-Ohio-2864, ¶ 18. Accordingly, the court makes the following determination.
       {¶ 4} Plaintiff’s claims sound in survivorship and wrongful death on behalf of the
heirs and next of kin of Theresa. Pursuant to R.C. 2125.02(A)(2), the court “may award
the reasonable funeral and burial expenses incurred as a result of the wrongful death.”
Plaintiff’s Exhibits 5 and 6 show that plaintiff incurred funeral and burial expenses for
Theresa in the amounts of $6,254.38 and $4,464.19, respectively, for a total of
$10,718.57, which shall be awarded. The parties agree that aside from the funeral and
burial expenses, there is no claim for economic damages in this matter.
       {¶ 5} Theresa was born on March 3, 1939, and was 57 years old when she died.
Theresa is survived by her three adult children, Dawn Rosenshine, Robert Dougherty,
Jr., and Vincent Dougherty, and Vincent’s daughter, Alyssa, who was Theresa’s only
grandchild at the time of her death.      Theresa’s children provided individual written
statements regarding how their mother’s death has affected them, and Dawn’s
deposition was submitted as well. (Plaintiff’s Exhibits 2-4, 21.)
       {¶ 6} Dawn testified that Theresa was diagnosed with lung cancer two weeks
after Robert Dougherty, Sr. (Theresa’s husband) died of colon cancer in November
1996. Even though Theresa’s cancer was inoperable when she was made aware of its
diagnosis, Theresa chose to undergo radiation therapy with the hope that it would
extend her life. After she concluded radiation treatments in Ohio, Theresa went to live
Case No. 1998-04701                       -3-                               DECISION

in New York City with Dawn and Dawn’s husband. Theresa died in Dawn’s home,
under hospice care.     The evidence shows that Theresa was not informed of the
presence of a tumor in her lung for approximately one year, and for approximately
another year, Theresa lived with the knowledge that her medical treatment had been
delayed, resulting in inoperable cancer that had spread to her brain.      According to
Dawn, Theresa initiated this lawsuit because she was very upset that she was not
informed about the tumor when it was first detected on the x-ray, and she did not want
the same result to happen to another patient. Theresa urged Dawn to pursue the claim
as executor.
      {¶ 7} Dawn testified that her mother was in considerable pain during the last few
months of her life, and that she was prescribed morphine, along with other pain
medication from the summer of 1997 until her death. Dawn sought counseling services
from her rabbi and a priest, and she attended a support group to cope with the grief she
sustained as a result of her mother’s death.
      {¶ 8} Robert Dougherty, Jr., was living in Connecticut when Theresa’s cancer
was diagnosed and he visited her frequently during the time that she lived in New York
City. Vincent was living in Ohio when Theresa was diagnosed with cancer. Prior to her
diagnosis, both Theresa and her husband had been primary care givers to Vincent’s
daughter Alyssa, who was born in December 1990. From birth, Alyssa lived in two
places: with Theresa and her husband approximately four days per week, and with her
other grandmother for the other three days. However, in October 1996, Alyssa went to
live with her other grandmother because Theresa was caring for her dying husband.
Thereafter, Alyssa continued to visit Theresa but did not return to live with her. At the
time of Theresa’s death, Dawn, Robert Jr., and Vincent were all adult children, and
Alyssa was almost 7 years old.
      {¶ 9} Defendant argues that Theresa suffered from multiple health problems
aside from the undiagnosed tumor, which would have significantly shortened her life
Case No. 1998-04701                              -4-                                    DECISION

expectancy. Specifically, Theresa had a history of cardiac problems and was a life-long
cigarette smoker. Defendant also seeks a determination from this court that Theresa
was comparatively negligent in that she began to smoke cigarettes when she was 13
years old and continued to smoke until her death, despite being aware of the risk of
death from smoking. The court finds that inasmuch as the Court of Appeals rendered
judgment in favor of plaintiff without consideration of defendant’s comparative
negligence argument, this court is confined to the issue of damages.2                      However,
Theresa’s state of health is a factor that this court shall consider in awarding damages.
Pursuant to R.C. 2125.02(A)(3)(b)(i), the “court may consider all factors existing at the
time of the decedent’s death that are relevant to a determination of the damages
suffered by reason of the wrongful death.”             For example, “it is proper to take into
consideration such factors, varying in individual cases, as the victim’s life expectancy,
character, health, habits, talents, prospects, * * * needs of and contributions to [her
beneficiaries] and current returns on investments.” Sutfin v. Burton, 91 Ohio App. 177,
193, (8th Dist. No.1951) citing 16 American Jurisprudence, 127, 160, “Death,” Sections
190 to 242.
       {¶ 10} The parties have submitted the depositions of Joel Kahn, M.D., Elloise
Gard, M.D., and Robert Steele M.D., to be considered regarding Theresa’s estimated
life expectancy. Elloise Gard, M.D., board-certified in internal medicine, first treated
Theresa in December 1994. With regard to Theresa’s family medical history, Dr. Gard
testified that Theresa’s mother had breast cancer, Theresa’s father suffered a heart
attack at age 48, and two of Theresa’s sisters died of cancer. Theresa smoked one
pack of cigarettes per day for approximately 40 years. Dr. Gard advised Theresa to
stop smoking because smoking is known both to worsen heart disease and to cause


       2
        The court notes that defendant raised the issue of the comparative negligence of smoking in its
March 29, 2010 trial brief.
Case No. 1998-04701                        -5-                                DECISION

cancer. Dr. Gard was also concerned about Theresa’s cholesterol level because it was
high for a person with known heart disease.
       {¶ 11} Joel Kahn, M.D., a cardiologist, testified that at the age of 46, Theresa was
diagnosed with severe heart disease that required a triple bypass surgery that was
performed in 1985. Ten years later, Theresa was diagnosed with progressive angina.
The catheterization that she was admitted to defendant’s hospital for in May 1995
showed that she had lost one of her three bypass grafts. Based solely upon Theresa’s
cardiology issues, Dr. Kahn opined that her life expectancy would not exceed 10 years
past the date of her May 30, 1995 hospitalization. Dr. Kahn noted that a normal life
expectancy for a 56-year old woman would be an additional 20 to 25 years.
       {¶ 12} Robert Steele M.D., board-certified in internal medicine and medical
oncology, opined that in May 1995, the lesion in Theresa’s right lung was a stage one
cancer, but that the nodes were negative and that there was no metastatic disease at
that time. Dr. Steele opined that when x-rays were taken of Theresa’s lungs in 1996,
she had cancerous tumors in both lungs and in her brain. Dr. Steele opined that the 2.5
centimeter mass in her right lung was most likely a different type of cancer from the
lesion in her left lung, and that it was more likely than not that Theresa suffered from
multiple, primary cancers rather than having suffered metastasis of the cancer in the
right lung to the left lung.
       {¶ 13} Dr. Steele testified that if the cancer in Theresa’s right lung had been
timely diagnosed, she would have undergone a wedge resection of her right lung, and
she probably would not have undergone chemotherapy or radiation at that time. Dr.
Steele further testified that in 1996, Theresa would have most likely undergone a
second similar surgery to remove the cancer from her left lung.
       {¶ 14} In the survival action, plaintiff seeks compensation for Theresa’s conscious
pain and suffering prior to her death.      A survival action brought to recover for a
decedent’s own injuries before her death is independent from a wrongful death action
Case No. 1998-04701                         -6-                               DECISION

seeking damages for the injuries that the decedent’s beneficiaries suffer as a result of
the death, even though the same nominal party prosecutes both actions. Peters v.
Columbus Steel Castings Co., 115 Ohio St.3d 134, 2007-Ohio-4787, ¶ 7.
         {¶ 15} Defendant argues that even if the tumor in Theresa’s right lung had been
disclosed to her timely, she would have undergone a wedge resection of her right lung,
a painful procedure. However, Dr. Steele testified that if Theresa had undergone a
wedge resection of her right lung in June 1995, she may not have had to undergo
radiation therapy at that time. The court finds that Theresa endured pain and suffering
as a result of radiation therapy in 1996, and that her pain and suffering should not be
lessened despite the fact that she did not also undergo a wedge resection. The court
finds that Theresa suffered conscious pain and suffering as a result of the delayed
diagnosis of her cancer: specifically, Theresa sustained physical pain and suffering as a
result of undergoing radiation therapy, and severe mental anguish as a result of
knowing that her diagnosis of cancer in her right lung was delayed for approximately
one year. Based upon the conscious pain and suffering and severe mental anguish that
Theresa sustained prior to her death, $100,000 is recommended for the survivorship
claim.
         {¶ 16} Turning to the damages associated with the wrongful death claim, the
applicable provisions of R.C. 2125.02(B) state that “[c]ompensatory damages may be
awarded in a civil action for wrongful death and may include damages for the following:
         {¶ 17} “* * *
         {¶ 18} “(3) Loss of the society of the decedent, including loss of companionship,
consortium, care, assistance, protection, advice, guidance, counsel, instruction, training,
and education, suffered by the surviving spouse, dependent children, parents, or next of
kin of the decedent;
         {¶ 19} “ * * *
Case No. 1998-04701                         -7-                                DECISION

       {¶ 20} “(5) The mental anguish incurred by the surviving spouse, dependent
children, parents, or next of kin of the decedent.”
       {¶ 21} Based upon the evidence submitted with regard to Theresa’s family history
of cancer and heart disease, and her own significant heart disease, the court finds
persuasive Dr. Kahn’s opinion that based solely upon Theresa’s cardiac issues, her life
expectancy would have been no more than ten years past May 1995. In addition, in
light of Dr. Steele’s testimony, the court finds that it is more likely than not that the
secondary cancer that was present in Theresa’s left lung in 1996 would have also
adversely affected her life expectancy.
       {¶ 22} Pursuant to R.C. 2125.02(A)(2), the court “may award damages authorized
by division (B) of this section, as it determines are proportioned to the injury and loss
resulting to the beneficiaries described in division (A)(1) of this section by reason of the
wrongful death.” R.C. 2125.01(A)(1) states that “a civil action for wrongful death shall
be brought in the name of the personal representative of the decedent for the exclusive
benefit of the surviving spouse, the children, and the parents of the decedent, all of
whom are rebuttably presumed to have suffered damages by reason of the wrongful
death, and for the exclusive benefit of the other next of kin of the decedent.” Pursuant
to R.C. 2125.02, other next of kin, such as grandchildren, although not presumed to
have sustained damages, may recover damages for mental anguish and loss of society
upon proper proof thereof, even though there is a surviving parent, spouse, or children.
Senig v. Nationwide Mutual Insurance Co., 76 Ohio App.3d 565, 574 (10th Dist.1992).
       {¶ 23} Based upon the evidence presented, the court finds that Alyssa had a
close relationship with her grandmother, Theresa, as Theresa was a primary care giver
to her throughout most of her early childhood. Therefore, the court finds that plaintiff
has proven by a preponderance of the evidence, that Alyssa should recover damages
as a result of Theresa’s wrongful death. Based upon the specific facts of this case,
considering both Theresa’s close relationship with her children and Theresa’s level of
Case No. 1998-04701                          -8-                                  DECISION

involvement in raising her granddaughter Alyssa, balanced against her shortened life
expectancy independent of defendant’s negligence, the court recommends awards of
non-economic damages for loss of society and mental anguish as follows: to plaintiff
Dawn Rosenshine, $30,000; to Robert Dougherty, Jr., $30,000; to Vincent Dougherty,
$30,000; and to Alyssa Dougherty, $10,000.
       {¶ 24} In summary, judgment is recommended in the amount of $210,743.57,
which includes the $25 filing fee.
       {¶ 25} R.C. 3345.40(B)(2) provides that any award against a state university or
college shall be reduced by the amount of “benefits” a plaintiff receives or is entitled to
receive “for injuries or loss allegedly incurred from a policy or policies of insurance or
any other source * * *.” It is undisputed that plaintiff received a settlement of $25,000 as
a result of litigation in the connected action, and $20,000 from a life insurance policy.
Defendant argues that any award of damages should be reduced by both of these
amounts. (Exhibits D and C to Defendant’s Trial Brief.) However, the Tenth District
Court of Appeals has determined that the word “benefits,” as it appears in R.C.
3345.40(B)(2), refers to “‘financial assistance received in time of sickness, disability,
unemployment, etc., either from insurance or public programs, such as social security.’”
See Aubry v. Univ. of Toledo Med. Ctr., 10th Dist. No. 11AP-509, 2012-Ohio-1313, ¶
22, quoting Black’s Law Dictionary 158 (6th Ed. 1990). In the instant case, inasmuch as
plaintiff’s settlement in the connected action does not constitute a benefit under the
definition set forth in Aubry, the court concludes that the statute does not operate to
reduce plaintiff’s award by the amount of that settlement. Likewise, R.C. 3345.40(B)(2)
further states: “Nothing in this division affects or shall be construed to limit the rights of a
beneficiary under a life insurance policy or the rights of sureties under fidelity or surety
bonds.” Therefore, the court concludes that the plain language of R.C. 3345.40(B)(2)
prohibits this court from reducing plaintiff’s award by the amount of life insurance
proceeds that plaintiff received.      Thus, the court finds that neither the settlement
Case No. 1998-04701                         -9-                                DECISION

proceeds nor the life insurance proceeds constitute “benefits” to be deducted from
plaintiff’s award of damages.
       {¶ 26} The Lucas County Probate Court apportioned the settlement proceeds
from the connected action equally among Theresa’s adult children.            (Exhibit D to
Defendant’s Trial Brief.) However, inasmuch as the court has found that plaintiff has
proven that Alyssa is entitled to a claim of damages, this matter must be returned to the
probate court for an equitable distribution of damages to the beneficiaries according to
their respective injury or loss. Accordingly, it is recommended that final judgment shall
be entered in favor of plaintiff after the probate court has adjusted the share that each
beneficiary is to receive.
       {¶ 27} A party may file written objections to the magistrate’s decision within 14
days of the filing of the decision, whether or not the court has adopted the decision
during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files
objections, any other party may also file objections not later than ten days after the first
objections are filed. A party shall not assign as error on appeal the court’s adoption of
any factual finding or legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely
and specifically objects to that factual finding or legal conclusion within 14 days of the
filing of the decision, as required by Civ.R. 53(D)(3)(b).

                                           _____________________________________
                                           HOLLY TRUE SHAVER
                                           Magistrate

cc:

Anne B. Strait                                Mark F. Vitou
Assistant Attorney General                    111 West Dudley
150 East Gay Street, 18th Floor               Maumee, Ohio 43537-2140
Columbus, Ohio 43215-3130
Case No. 1998-04701                                   - 10 -   DECISION


002
Filed December 21, 2012
To S.C. Reporter March 22, 2013 and August 22, 2013
