[Cite as S.S. v. Ruddock, 2014-Ohio-2270.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100281




                                             S.S.
                                                    PLAINTIFF-APPELLANT

                                             vs.

                                  MARTIN RUDDOCK
                                                    DEFENDANT-APPELLEE




                                   JUDGMENT:
                             REVERSED AND REMANDED



                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-11-750534

        BEFORE: S. Gallagher, P.J., Rocco, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: May 29, 2014
ATTORNEYS FOR APPELLANT

Alec Berezin
Patrick J. Perotti
Dworken & Bernstein Co., L.P.A.
60 South Park Place
Painesville, OH 44077

Denise Mackura
1338 Avondale Road
South Euclid, OH 44121


ATTORNEYS FOR APPELLEE

Edward E. Taber
Karen E. Ross
Tucker Ellis L.L.P.
950 Main Avenue
Suite 1100
Cleveland, OH 44113
SEAN C. GALLAGHER, P.J.:

       {¶1} Plaintiff-appellant S.S.1 appeals the decision of the Cuyahoga County Court

of Common Pleas that granted defendant-appellee Martin Ruddock, M.D.’s motion for

partial summary judgment and dismissed the complaint with prejudice. For the reasons

stated herein, we reverse the trial court’s decision and remand the case for further

proceedings.

       {¶2} In March 2010, appellant, who is from West Virginia, traveled to Ohio to

receive an abortion. She went to Dr. Ruddock at the Center for Women’s Health, Inc., in

Cleveland. Appellant was in her second trimester of pregnancy. She was accompanied

by her mother.

       {¶3} Dr. Ruddock first saw appellant on March 16, 2010. On that date, appellant

signed six informed-consent forms at Dr. Ruddock’s office. Appellant claims she signed

these forms prior to ever seeing Dr. Ruddock and that required counseling was not

provided 24 hours in advance of the abortion procedure. Appellant was informed that

because of her stage of pregnancy, Dr. Ruddock would have to first place dilators, known

as laminaria, into her cervix during the first two days, and that the abortion would not be

completed until the third day, which would have been March 18, 2010.

       {¶4} On March 16, 2010, Dr. Ruddock examined appellant and placed three

laminaria into her cervix.      During the procedure, appellant experienced pain and

uncertainty. She indicated that she wanted to stop. Dr. Ruddock informed her that it

       1
           Because of the nature of the action, appellant is identified by initials only.
was not possible. According to appellant, Dr. Ruddock informed her that her water had

already broken; that he could not stop; that she could not revoke consent once the

procedure had begun; and that if the procedure were stopped, the child would suffer from

mental retardation.   The procedure continued, and the laminaria were inserted.      An

abortion procedure report was used to document the procedure.

       {¶5} The next day, appellant went to another doctor who removed the laminaria

and informed her that her water had not been broken. On March 18, 2010, appellant

returned to Dr. Ruddock’s office and was given a refund after signing a “laminaria

removal release.” Appellant’s pregnancy resulted in the birth of a healthy baby.

       {¶6} Appellant filed this action on May 9, 2011, raising claims for violation of

Ohio’s informed consent law, R.C. 2317.56, and violation of R.C. 3701.74 for failing to

provide medical records in accordance with R.C. 3701.741.          In her first amended

complaint, appellant added a claim for fraud and misrepresentation. Appellant later filed

a second amended complaint, without seeking leave of court, in which she added a claim

for spoliation based upon alleged alteration of evidence.

       {¶7} Dr. Ruddock filed an amended answer to the first amended complaint and a

counterclaim, claiming breach of contract arising from the signed release agreement. On

October 7, 2011, he filed a motion for partial summary judgment that requested the

dismissal of all of appellant’s claims. Dr. Ruddock argued that the claims were barred

by the release and that the claims failed upon the merits. He later filed a notice of

correction in which he clarified that his motion for partial summary judgment was based
on the typewritten language of the release.            This clarification occurred because

Dr. Ruddock had submitted a copy of the release that had additional handwritten language

that purported to prohibit appellant from bringing any legal action whatsoever.

Appellant claimed this was an altered copy and that the actual release she signed did not

contain the handwritten language that was added to the document submitted by

Dr. Ruddock.

       {¶8} In ruling on the motion, the trial court only considered the undisputed

language of the release signed by appellant that provides “under no circumstances will

[appellant] * * * hold Dr. Martin D. Ruddock, MD * * * responsible for anything

whatsoever, regarding my health or the outcome of this pregnancy * * *.” The court

determined that this language was not unclear or ambiguous and that appellant breached

the agreement by bringing this action. The trial court granted Dr. Ruddock’s motion and

dismissed the complaint and all claims raised therein with prejudice. The trial court’s

ruling included “no just reason for delay” language.

       {¶9} Appellant timely filed this appeal from the trial court’s decision. Her sole

assignment of error claims the trial court erred by dismissing the complaint in its entirety

based on an inapplicable limited laminaria release. We agree.

       {¶10} Appellate review of summary judgment is de novo, governed by the

standard set forth in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559,

833 N.E.2d 712, ¶ 8. Summary judgment is appropriate when “(1) there is no genuine

issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and
(3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds

can come to but one conclusion and that conclusion is adverse to the nonmoving party.”

Marusa v. Erie Ins. Co., 136 Ohio St.3d 118, 2013-Ohio-1957, 991 N.E.2d 232, ¶ 7.

       {¶11} A release is reviewed under the rules governing the construction of

contracts. Shifrin v. Forest City Ents., Inc., 64 Ohio St.3d 635, 637, 1992-Ohio-28, 597

N.E.2d 499.    A court must examine a contract as a whole, and it is presumed that the

intent of the parties resides in the language employed in the agreement. Sunoco, Inc.

(R&M) v. Toledo Edison Co., 129 Ohio St.3d 397, 2011-Ohio-2720, 953 N.E.2d 285, ¶

37.   Where a contract is clear and unambiguous, its interpretation is a question of law.

Davis v. Loopco Industries, Inc., 66 Ohio St.3d 64, 65, 1993-Ohio-195, 609 N.E.2d 144.

Further, where there is any doubt or ambiguity in the language of the release agreement, it

will be strictly construed against the drafter of the document. Knickel v. Marion, 3d

Dist. Marion No. 9-2000-75, 2001-Ohio-2127, citing McKay Machine Co. v. Rodman, 11

Ohio St.2d 77, 80, 228 N.E.2d 304 (1967).

       {¶12} Initially, we find the contention of a dispute surrounding the altered release

language to be no more than a red herring.    As already discussed, Dr. Ruddock clarified

that he was relying upon the typewritten release language and the court only considered

the undisputed language of the release when ruling upon summary judgment. Likewise,

upon our review, we only consider the typewritten release.

       {¶13} The release was captioned “laminaria removal release” and related to

appellant’s decision to have the laminaria removed. The release provides that on March
18, 2010, appellant was informed of the possible consequences of interrupting the process

initiated by Dr. Ruddock for a second trimester abortion. The release lists possible

negative consequences of the laminaria removal and indicates that the removal was

against the sound medical advice of Dr. Ruddock.               The release contains an

acknowledgment by appellant that she would be solely responsible “for any/all possible

outcomes regarding my health and that of my developing fetus.” Appellant further

acknowledged that “under no circumstances, will [appellant] * * * hold Dr. Martin D.

Ruddock, MD, the Center for Women’s Health responsible for anything whatsoever,

regarding my health or the outcome of this pregnancy.”

      {¶14} We find the release is clear and unambiguous. In examining the language

of the release as a whole, it is apparent that the release pertains to the risks associated

with the laminaria removal, appellant’s acceptance of responsibility for any and all

outcomes regarding her health and that of her fetus, and a release of liability against Dr.

Ruddock for claims regarding her health or the outcome of her pregnancy. The release

does not manifest an intent to release Dr. Ruddock from liability concerning violations of

Ohio’s informed consent law, medical record release laws, fraud and misrepresentation

claims regarding the pregnancy itself, or spoliation of evidence claims. Arguably, a

release of Ohio’s informed consent laws would be against public policy. Further, the

events giving rise to the medical records and spoliation claims arose after the release was

entered. Accordingly, we find the trial court erred by applying the release to preclude
appellant’s claims and by finding appellant had breached the agreement by filing this

action.

          {¶15} In his motion for partial summary judgment, Dr. Ruddock also argued

against the merits of the claims. We shall address each claim separately.

          {¶16} R.C. 2317.56 sets forth information that is to be provided to a woman “prior

to an abortion.” The statute instructs that “an abortion shall be performed or induced”

only if certain conditions are satisfied. R.C. 2317.56(B). The conditions include that at

least 24 hours prior to the procedure, a physician meet with the pregnant woman in person

and provide certain disclosures regarding the nature of the procedure and associated risks,

the probable gestational age of the fetus, and the risks of carrying the pregnancy to term.

R.C. 2317.56(B)(1). The statute also requires published materials about the procedure be

given to the woman.        R.C. 2317.56(B)(2)(b).     Also, the woman must give written

consent prior to the performance or inducement of the abortion. R.C. 2317.56(B)(4). A

person who fails to comply with the required conditions may be liable for compensatory

and exemplary damages and may be subject to disciplinary action under R.C. 4731.22.

R.C. 2317.56(G).

          {¶17} Dr. Ruddock claims that the consent forms signed by appellant demonstrate

that he complied with Ohio’s informed consent laws. However, appellant states in her

affidavit that she was instructed to sign these forms before ever meeting with Dr.

Ruddock and she was not given proper counseling, the state-mandated materials, or a

24-hour waiting period.        Although Dr. Ruddock claims that appellant had already
received the requisite informed consent information in West Virginia, this is not clearly

ascertainable from the record and is a disputed fact.

       {¶18} Dr. Ruddock also asserts that appellant did not have an abortion because she

delivered a healthy baby. That the procedure did not result in the termination of the

pregnancy is not dispositive of the claim. R.C. 2317.56 requires that informed consent

be obtained prior to an abortion being performed or induced. There is evidence in the

record that reflects Dr. Ruddock performed or induced an abortion procedure on

appellant. Appellant was informed of a three-day process relating to the abortion. As

Dr. Ruddock states, on March 16, 2010, he had to “place dilators into [appellant’s] cervix

to prepare her body for the abortion.” Once this procedure was initiated, and after

appellant requested it stop, Dr. Ruddock informed her it was not possible. An “abortion

procedure report” documented the procedure performed as a “second trimester abortion

(dilation & extraction – D&E); suction.”

       {¶19} Because there are genuine issues of material fact in dispute on the claim of

lack of informed consent, summary judgment was not proper thereon.

       {¶20} Appellant also raised a claim for fraud and misrepresentation.             The

elements of this claim include the following:

       “(a) a representation or, where there is a duty to disclose, concealment of a
       fact, (b) which is material to the transaction at hand, (c) made falsely, with
       knowledge of its falsity, or with such utter disregard and recklessness as to
       whether it is true or false that knowledge may be inferred, (d) with the
       intent of misleading another into relying upon it, (e) justifiable reliance
       upon the representation or concealment, and (f) a resulting injury
       proximately caused by the reliance.”
Groob v. Keybank, 108 Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170, ¶ 47, quoting

Gaines v. Preterm-Cleveland, Inc., 33 Ohio St.3d 54, 55, 514 N.E.2d 709 (1987).

       {¶21} Appellant claims that Dr. Ruddock failed to provide all relevant information

prior to initiating the abortion procedure and made false statements during the abortion

procedure. She alleges Dr. Ruddock made numerous false statements, including that it

was too late to stop the abortion; that her water had already broken; that she could not

revoke her consent once the procedure had begun; and that if she stopped, her child

would be mentally retarded.       Appellant states she relied on these statements and

continued to endure a painful and frightening procedure that included the installation of

the laminaria. Although Dr. Ruddock argues appellant did not suffer an injury because

she did not have an abortion, appellant presented evidence, by way of her affidavit, of

pain and stress to her person caused by the procedure that was performed. We find

summary judgment is not warranted on this claim because there are genuine issues of

material fact in dispute.

       {¶22} Next, we address the claim for failure to provide medical records. R.C.

3701.74 authorizes a civil action to enforce a patient’s right of access to medical records.

Under her claim, appellant asserts that despite repeated written requests and the passage

of reasonable time, Dr. Ruddock failed to provide her medical records. Dr. Ruddock

argues that the claim is baseless because the medical records were provided in early 2011.

 However, this was after the lawsuit was filed and ignores the cost of counsel in pursuing

the claim. Further, appellant was unable to review the records in contemplation of the
action and should not have been obligated to file a lawsuit to obtain her medical records.

We find the claim for failure to provide medical records was improperly dismissed by the

trial court.

       {¶23} Finally, we address the claim for spoliation.         This claim is based on

Dr. Ruddock’s alleged alteration of the release. Dr. Ruddock argues that the spoliation

claim was raised in the second amended complaint, which was filed without leave of

court. Therefore, he asserts that the second amended complaint should be stricken and

the claim disregarded.

       {¶24} Our review reflects that the filing of the second amended complaint without

leave was not challenged by Dr. Ruddock in the trial court and no objection was raised to

the trial court’s recognition of the spoliation claim in its ruling on the motion for

summary judgment. The failure to raise this issue before the trial court constitutes a

waiver, and we may disregard the argument on appeal. See State v. Douglas, 66 Ohio

St.3d 788, 790, 586 N.E.2d 1096 (1989). Because the release does not bar the spoliation

claim, the trial court erred in dismissing this claim.

       {¶25} We conclude Dr. Ruddock’s motion for partial summary judgment should

have been denied, and we reverse the trial court’s decision. Appellant’s sole assignment

of error is sustained.

       {¶26} Judgment reversed; case remanded.

       It is ordered that appellant recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, PRESIDING JUDGE

KENNETH A. ROCCO, J., and
EILEEN T. GALLAGHER, J., CONCUR
