BURNS v. CLEVELAND CLINIC FOUNDATION (2011)

Magistrate William F.B. Vodrey's decision, including findings of fact and conclusions of law, is hereby approved and confirmed.

Defendant's motion for summary judgment is now denied. Civ.R. 56(C).

Judgment is rendered for plaintiff on the complaint and against defendant in the amount of $800.00, with interest at the rate of 4.00% per annum from date of judgment, plus costs.

Findings of Fact

The evidence at trial showed that, on January 31, 2010, plaintiff was doing some carpentry work in his home and got a small wood chip in his eye. He thought it might come out on its own, but it didn't, and his eye became increasingly irritated. On the afternoon of the next day, February 1, 2010, plaintiff went to Hillcrest Hospital, a facility owned and operated by defendant. Dr. Robert Weinland was the emergency room physician on duty when plaintiff came in, but plaintiff testified that he never saw or spoke to Dr. Weinland. Instead, he was exclusively treated by a Mr. Foy (first name unknown), a physician's assistant who, for more than an hour, did his best to find and remove the wood chip but failed. Plaintiff was referred for a computed tomography (hereinafter “CT”) scan, which was duly performed. Shortly afterwards, plaintiff was referred to Dr. Sheldon M. Oberfeld, another Hillcrest physician, who was able to quickly find and remove the wood chip.

Plaintiff disputed defendant's billing, since the CT scan seemed to him to play little or no role in the medical treatment he received. His wife handles the household finances, and unbeknownst to him paid an $800.00 bill for his treatment. Plaintiff has, to date, declined to pay the $1002.00 balance. Defendant later gave plaintiff a $403.65 insurance adjustment for services already rendered.

Dr. Raymond J. Leone, D.O., an osteopath, appeared at trial as a witness for plaintiff. Dr. Leone explained that, in modern American medical practice, osteopaths can do everything that M.D.s can do. He has worked in urgent care centers and emergency rooms on many occasions, and has treated patients for foreign objects in eyes forty to fifty times. Without objection, Dr. Leone was certified as an expert medical witness pursuant to Evid.R. 702. He testified that the typical treatment for objects in eyes is usually some combination of irrigation, brief anesthetization with special eyedrops, use of fluorescent dye, and everting (flipping) the eyelid. He gave his expert medical opinion that a CT scan was unnecessary and inappropriate in treating someone with a non-metal object in his eye; he has himself never ordered a CT scan for such purposes. Moreover, since a CT scan subjects the patient to radiation, its inappropriate use creates an avoidable, slight but definite risk of cancer in the long term. Dr. Leone testified, and the court now agrees, that defendant did not meet its duty of care in referring plaintiff for a CT scan, given the nature of his medical problem.

Plaintiff now seeks $3000.00, both as to money he has already paid and as to the unpaid balance of his medical bill.

Conclusions of Law

At the beginning of trial and again at the close of plaintiff's case in chief, defendant moved for summary judgment. Civ.R. 56(C). The magistrate reserved ruling on the motion both times. The court now denies defendant's motion for summary judgment, and will proceed to rule on the merits of the case.

At trial, a court must determine the credibility of witnesses and the weight to be given the evidence. In re Lieberman (1955), 163 Ohio St. 35; Bowlin v. Black & White Cab Co. (1966), 7 Ohio App.2d 133. The quality of evidence is more important than its quantity. If trial testimony or other evidence is in conflict, the court must decide which to believe, and which to disbelieve. State v. DeHass (1967), 10 Ohio St.2d 230. Both of the witnesses were generally credible. No witnesses appeared for defendant.

Defendant, through counsel, asserted that the CT scan was ordered by Dr. Robert Weinland, the emergency room physician on duty when plaintiff came in. Dr. Weinland is not an employee of defendant, counsel argued, but of Emergency Professional Services Inc. or Team Health, which are not parties to this lawsuit. Defense counsel argued that Dr. Weinland was an independent contractor, but the physician does not so identify himself in his affidavit of September 2, 2011; in fact, he does not indicate who is his employer, only that it is not defendant. Plaintiff testified that he was never told that anyone providing care for him was not an employee of defendant, and that Foy, in particular, who directly cared for him from the outset, certainly appeared to be such an employee. The parties stipulated that Dr. Joshua A. Golub, the Hillcrest radiologist who administered and interpreted the CT scan, was indeed an employee of defendant.

It is well-established that if an employer, known at law as a “principal,” holds out another to the public as its agent or employee, the principal is bound by the acts of that individual, whether that individual in fact is such an agent. The public dealing with the agent is not required first to determine the nature and extent of the authority. Combs v. Kobacker Stores, Inc. (Franklin App.1953), 65 Ohio L.Abs. 326.

An agent's acts within the apparent scope of authority conferred upon him are also binding on the principal. Miller v. Wick Bldg. Co. (1950), 154 Ohio St. 93, Kimball v. Kimball Bros. (1944), 143 Ohio St. 500. Corporations are liable for the acts of their agents in the course of their employment, in the same manner and to the same extent as private individuals. Cleveland, Columbus & Cincinnati R. Co. v. Keary (1854), 3 Ohio St. 201. When an agent acts within the scope of his apparent authority, unless a third party has notice that he is acting otherwise, the principal is liable. McSweeney v. Jackson (1996), 117 Ohio App.3d 623; Sedaris v. Riley (1928), 27 Ohio N.P.N.S. 215. Apparent authority may arise from a course of business, or from a principal's spoken or written words or conduct which causes or permits a third person to act upon that apparent authority. Fahey Banking Co. v. Adams (1994), 98 Ohio App.3d 214.

Defendant operates Hillcrest Hospital, and plaintiff went there for medical treatment. Defendant is very well-known in the community for providing such treatment. Everything plaintiff saw indicated that Foy was an employee and agent of defendant. Virtually all documents which plaintiff received during and since his treatment were from defendant. Where a business or trade name is used to promote a product or service, the public is entitled to assume that transactions undertaken with one using such a name, with authorization to do so, are transactions of the person or company whose name is being used. Agosto v. Leisure World Travel, Inc. (1973), 36 Ohio App.2d 213. Authority to sell a particular article or service includes authority to warrant the title, quality or condition of the item sold if such warranty is usual or customary in such a transaction, and is reasonably necessary to transact the business entrusted to the agent. Houston–Starr Co. v. Berea Brick & Tile Co. (N.D.Ohio 1961), 197 F.Supp. 492.

The unrebutted testimony in this case is that plaintiff received a CT scan which was unnecessary, costly and even slightly dangerous to him. As the sole medical expert witness opined, defendant did not meet its duty of care to plaintiff. The unrebutted testimony at trial established that plaintiff was treated by defendant's physician's assistant, on defendant's premises, and given a CT scan by defendant's staff. Now, clearly, defendant is liable. Clark v. Southview Hosp. & Family Health Ctr. (1994), 68 Ohio St.3d 435; Albain v. Flower Hosp. (1990), 50 Ohio St.3d 251.

However, plaintiff also seeks a declaratory judgment as to his unpaid bill. The Small Claims division of this court lacks jurisdiction to grant a declaratory judgment. R.C.1925.02(A); Huff v. All Amer. Basement Waterproofing & Home Svcs. (2010), 190 Ohio App.3d 612. Judgment in this case is limited to plaintiff's actual out-of-pocket expenses, that is, reimbursement for the $800.00 which plaintiff's wife already prematurely paid defendant.

Defendant not having prevailed at trial, its request for expenses and reasonable attorney fees, as set forth in its August 16, 2011 motion for summary judgment, is denied.

Plaintiff has proven his case by a preponderance of the evidence, to the limited extent noted above.

STOKES, ANGELA R., Judge.