Dycoco v. Guernsey Memorial Hospital

EDNA DYCOCO, ADM. OF THE ESTATE OF ANTOLIN DYCOCO, DEC. VS. GUERNSEY MEMORIAL
HOSPITAL, ET AL.

Summary judgment of various claims.




---

COURT OF APPEALS

GUERNSEY COUNTY, OHIO

FIFTH APPELLATE DISTRICT




EDNA DYCOCO, AS ADMINISTRATRIX OF THE ESTATE OF ANTOLIN M. DYCOCO, M.D.,
DECEASED




Plaintiff-Appellant




-vs-




GUERNSEY MEMORIAL HOSPITAL, ET AL.




Defendants-Appellees




JUDGES: Hon. William B. Hoffman, P.J. Hon. Sheila G. Farmer, J. Hon. Julie
A. Edwards, J.




Case Nos. 99CA06 99CA10




O P I N I O N




CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No.
94CV510




JUDGMENT: Affirmed in Part; Reversed and Remanded in Part




DATE OF JUDGMENT ENTRY: May 15, 2000




APPEARANCES:




For Plaintiff-Appellant




CRAIG DENMEAD 37 West Broad Street, Suite 1150 Columbus, Ohio
43215-4189




BLAIR L. MAGAZINER 44 South Sixth Street Zanesville, Ohio 43701




For Defendants-Appellees




JOEL H. MIRMAN 88 East Broad Street, Suite 1600 Columbus, OH 43215




TODD A. COOK 175 South Third Street Columbus, OH 43215-5100




Farmer, J . On March 29, 1993, Guernsey Memorial Hospital entered into a
contract with appellee, CompHealth, Inc., for the provision of anesthesiology
services, including the management of the anesthesiology department. Appellee,
James Lowenhagen, was Director of the Physician Group Development Division for
appellee CompHealth. In March of 1993, appellee, Cambridge Anesthesia
Associates, P.A., was formed to supply the professional staffing for the
anesthesiology department. Appellee Lowenhagen was Vice President for appellee
Cambridge. An anesthesiologist had to be affiliated with appellee Cambridge in
order to provide anesthesiology services to Hospital. On March 29, 1993,
Antolin M. Dycoco, M.D., an anesthesiologist, entered into an independent
contractor agreement (hereinafter “agreement”) with appellee Cambridge to
provide services to Hospital. Several months later, all of appellee
Cambridge’s contracts were assigned to appellee, Kron Anesthesia, P.C.
Appellee, Alan Kronhaus, M.D., was Chief Executive Officer for appellee Kron.
Appellee Lowenhagen was Chief Operating Officer. On November 11, 1993,
appellee Kronhaus terminated the agreement with Dr. Dycoco. As a result,
Hospital automatically terminated Dr. Dycoco’s staff privileges. Said
termination stemmed from questions surrounding Dr. Dycoco’s clinical
competency based upon allegations made by appellee, Brady B. Stoner, M.D. On
January 18, 1994, Dr. Dycoco passed away due to an apparent intracerebral
hemorrhage. On December 13, 1994, appellant, Edna Dycoco, as Administratrix of
Dr. Dycoco’s estate, filed a complaint against Hospital and appellees
CompHealth, Cambridge and Stoner. Appellant alleged claims for wrongful death,
intentional and negligent infliction of emotional distress, breach of
contract, tortious interference with business and contractual relationships
and violations of the Valentine Antitrust Act. On January 9, 1996, appellant
filed an amended complaint naming appellees Lowenhagen, Kron and Kronhaus as
new party defendants. Appellant also filed an additional claim for funeral
expenses. On December 30, 1998, appellees CompHealth, Cambridge, Lowenhagen,
Kron and Kronhaus filed a motion for summary judgment. By judgment entry filed
January 27, 1999, the trial court granted said motion. On February 24, 1999,
appellant filed a notice of appeal. Said appeal was assigned Case No. 99CA06.
On February 16, 1999, appellee Stoner filed a motion for summary judgment. On
March 16, 1999, the trial court granted said motion. On April 8, 1999,
appellant filed a notice of appeal. Said appeal was assigned Case No. 99CA10.
On April 23, 1999, this court consolidated the two cases. This matter is now
before this court for consideration. Assignments of error are as follows:




I THE TRIAL COURT COMMITTED PREJUDICIAL & REVERSIBLE ERROR WHEN IT
GRANTED DEFENDANTS-APPELLEES’, CAMBRIDGE ANESTHESIA ASSOCIATES, P.A.,
COMPHEALTH, INC., AND KRON ANESTHESIA, P.C., MOTION FOR SUMMARY JUDGMENT WHICH
HELD THAT THESE APPELLEES DID NOT BREACH THEIR CONTRACT WITH APPELLANT’S
DECEDENT, ANTOLIN M. DYCOCO, M.D.




II THE TRIAL COURT COMMITTED PREJUDICIAL & REVERSIBLE ERROR WHEN IT
GRANTED DEFENDANTS-APPELLEES’, KRONHAUS, LOWENHAGEN, AND STONER, MOTION FOR
SUMMARY JUDGMENT WHICH HELD THAT THESES APPELLEES DID NOT ENGAGE IN TORTIOUS
INTERFERENCE WITH BUSINESS OR CONTRACTUAL RELATIONSHIPS OF APPELLANT’S
DECEDENT, ANTOLIN M. DYCOCO, M.D.




III THE TRIAL COURT COMMITTED PREJUDICIAL & REVERSIBLE ERROR WHEN IT
GRANTED DEFENDANTS-APPELLEES’, STONER, KRONHAUS AND LOWENHAGEN, MOTION FOR
SUMMARY JUDGMENT WHICH HELD THAT THESE APPELLEES WERE NOT LIABLE AS A MATTER
OF LAW FOR THE WRONGFUL DEATH OF APPELLANT’S DECEDENT, ANTOLIN M. DYCOCO, M.D.
BY DEFAMING HIM.




IV THE TRIAL COURT COMMITTED PREJUDICIAL & REVERSIBLE ERROR WHEN IT
GRANTED ALL DEFENDANTS-APPELLEES’ MOTION FOR SUMMARY JUDGMENT WHICH HELD THAT
THESE APPELLEES DID NOT INTENTIONALLY INFLICT EMOTIONAL DISTRESS UPON
APPELLANT’S DECEDENT, ANTOLIN M. DYCOCO, M.D.




V THE TRIAL COURT COMMITTED PREJUDICIAL & REVERSIBLE ERROR WHEN IT
GRANTED ALL DEFENDANTS-APPELLEES’ MOTION FOR SUMMARY JUDGMENT WHICH HELD THAT
THESE APPELLEES WHERE NOT LIABLE AS A MATTER OF LAW FOR THE WRONGFUL DEATH OF
APPELLANT’S DECEDENT, ANTOLIN M. DYCOCO, M.D.




VI THE TRIAL COURT COMMITTED PREJUDICIAL & REVERSIBLE ERROR WHEN IT
GRANTED ALL DEFENDANTS-APPELLEES’ MOTION FOR SUMMARY JUDGMENT WHICH HELD THAT
THESE APPELLEES WHERE NOT LIABLE AS A MATTER OF LAW FOR THE FUNERAL EXPENSES
INCURRED AS A RESULT OF THE WRONGFUL DEATH CLAIM OF APPELLANT’S DECEDENT,
ANTOLIN M. DYCOCO, M.D.




VII THE TRIAL COURT COMMITTED PREJUDICIAL & REVERSIBLE ERROR WHEN IT
GRANTED DEFENDANT-APPELLEE’S, BRADY B. STONER, M.D., MOTION FOR SUMMARY
JUDGMENT AS A MATTER OF LAW WITHOUT FIRST ALLOWING APPELLANT THE OPPORTUNITY
FOR ADEQUATE DISCOVERY PURSUANT TO OHIO CIV. R. 56(F).




All of appellant’s assignments of error challenge the trial court’s
granting of summary judgment to appellees. Summary judgment motions are to be
resolved in light of the dictates of Civ.R. 56. Said rule was reaffirmed by
the Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins (1996), 75
Ohio St.3d 447, 448: Civ.R. 56(C) provides that before summary judgment may be
granted, it must be determined that (1) no genuine issue as to any material
fact remains to be litigated, (2) the moving party is entitled to judgment as
a matter of law, and (3) it appears from the evidence that reasonable minds
can come to but one conclusion, and viewing such evidence most strongly in
favor of the nonmoving party, that conclusion is adverse to the party against
whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming
(1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267,
274.




As an appellate court reviewing summary judgment motions, we must stand in
the shoes of the trial court and review summary judgments on the same standard
and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30
Ohio St.3d 35.

I




Appellant claims the trial court erred in determining appellees CompHealth,
Cambridge and Kron did not breach the agreement between the parties. We
disagree. Appellant argues Dr. Dycoco was entitled to due process regarding
his termination based upon the March 26, 1993 cover letter sent from appellee
Lowenhagen to Dr. Dycoco with the agreement: In regards to your independent
contractor agreement, I would like to reinforce that both the Hospital and
Cambridge Anesthesiology Associates anticipate that you will continue to be a
satisfied and productive member of the anesthesiology department until you
choose to leave the Hospital. While the contract specifies the conditions
under which you would be required to resign from the Medical Staff, I would
like to amplify those circumstances here for your comfort. They are as
follows:***(vi) it was felt that you did not demonstrate an acceptable level
of clinical competency. In the latter case, we would afford you due process as
outlined in the Bylaws of the Medical Staff of Guernsey Memorial Hospital.
(Emphasis added.)




See, Appellant’s Brief at Exhibit 3A. Appellant challenges the following
finding by the trial court in its January 27, 1999 judgment entry:




Plaintiff ?cannot now argue that Dr. Dycoco was misled by the Letter or the
statements of Lowenhagen or that the doctor intended to be afforded due
process rights “when he could have known the truth by merely looking when he
signed.” This Court cannot conclude that the parties intended any terms other
than those expressed in the Agreement.’ Dycoco 96 CA 34 supra at 9. The
agreement was executed between the parties on March 29, 1993 and included the
following integration clause: 16. Entire Agreement. This Agreement constitutes
the entire understanding and agreement between the parties and may not be
modified except by a written agreement signed by the parties.




See, Appellant’s Brief at Exhibit 4.




The agreement included the conditions under which Dr. Dycoco “would be
required to resign,” including the condition cited supra, clinical competency.
Conspicuously absent from the agreement is any guarantee of “due process”
afforded under the Bylaws of the Medical Staff of Guernsey Memorial Hospital.
As we previously noted in Dycoco I, the parol evidence rule precludes the
introduction of evidence outside the four corners of a written document: Where
the parties, following negotiations, make mutual promises which thereafter are
integrated into an unambiguous written contract, duly signed by them, courts
will give effect to the parties’ expressed intentions.***Intentions not
expressed in the writing are deemed to have no existence and may not be shown
by parol evidence.




Aultman Hosp. Assn. v. Community Mut. Ins. (1989), 46 Ohio St.3d 51,
53.




In Dycoco I at 7, we found “[t]he language of the Agreement clearly and
unambiguously states that a Physician’s termination is not subject to a due
process hearing or review by Guernsey, its Medical Staff, or its Board of
Trustees. Therefore, appellant cannot introduce parol evidence to establish a
breach of the contract.” Appellant argues appellee Lowenhagen was the agent
for Hospital, appellee CompHealth and appellee Cambridge and therefore, once
appellee Lowenhagen promised due process via his cover letter, he bound
appellees CompHealth and Cambridge to such. Appellant points out there was an
ambiguity in the agreement otherwise appellee Lowenhagen would not have had to
“amplify” the agreement via the cover letter. Upon review, we once again find
the integration clause within the agreement and the parol evidence rule
preclude the cover letter statement from being a part of the agreement. Based
upon our finding of “no ambiguity” in the agreement, we conclude the trial
court did not err in granting summary judgment to appellees on the breach of
contract claim. Assignment of Error I is denied.

II




Appellant claims the trial court erred in determining there was no genuine
issue of material fact regarding appellant’s claim for tortious interference
with a business relationship. We disagree. In order to establish a claim for
tortious interference with a business relationship, a party must show the
following: From these two cases, we derive the elements of the tort: (1) a
business relationship or contract; (2) the wrongdoer’s knowledge of the
relationship or contract; (3) the wrongdoer’s intentional and improper action
taken to prevent a contract formation, procure a contractual breach, or
terminate a business relationship; (4) a lack of privilege; and (5) resulting
damages.




Brookside Ambulance, Inc. d.b.a. Rumpf Ambulance Service v. Walker
Ambulance Service (1996), 112 Ohio App.3d 150, 155-156, citing Kenty v.
Transamerica Premium Ins. Co. (1995), 72 Ohio St.3d 415, and A & B-Abell
Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council (1995),
73 Ohio St.3d 1. In its judgment entry of January 27, 1999, the trial court
found the following on the issue of tortious interference: The Court finds
that Defendants had a contractual right pursuant to their Agreement to
?interfere’ with Dr. Dycoco’s business relationship with Guernsey Memorial
Hospital as Cambridge Anesthesiology Associates was ?engaged by CompHealth to
provide professional staffing for the Anesthesiology Department at Guernsey
Memorial Hospital.’ See Independent Contractor Agreement. The Court concludes
that Defendants were privileged***.




Appellant attempts to establish a business relationship between Dr. Dycoco
and Hospital by claiming the agreement between appellee CompHealth and
Hospital, whereby appellee CompHealth was to manage Hospital’s anesthesiology
department, created the necessity for Dr. Dycoco and appellee Cambridge to
enter into the independent contractor agreement. Without the agreement, Dr.
Dycoco would not have been able to perform anesthesiology services at
Hospital. Because appellee Cambridge had to hire individuals to perform
anesthesiology services at Hospital, those individuals so hired had a business
relationship with Hospital. See, Appellant’s September 23, 1998 Memorandum in
Opposition to Appellees’ Motion for Summary Judgment. Appellees’ act of
terminating Dr. Dycoco’s agreement resulted in Dr. Dycoco’s staff privileges
with Hospital being terminated, thereby interfering with the Dycoco/Hospital
relationship. We disagree that Dr. Dycoco had a business relationship with
Hospital. The independent contractor agreement was between Dr. Dycoco and
appellee Cambridge. In terminating said agreement, appellees ended their
business relationship with Dr. Dycoco and no longer permitted Dr. Dycoco to
perform anesthesiology services at Hospital on behalf of appellee Cambridge.
Dr. Dycoco’s right to perform anesthesiology services at Hospital was limited
and controlled by his agreement with appellee Cambridge and was subordinate to
that agreement. Because Dr. Dycoco never had a contractual/business
relationship with Hospital, the claim for tortious interference with a
business relationship under Brookside must fail. Upon review, we find the
trial court did not err in granting summary judgment to appellees on the
tortious interference with a business relationship claim. Assignment of Error
II is denied.

III




Appellant claims the trial court erred in determining appellees were not
liable for the wrongful death of Dr. Dycoco by way of defamation. We disagree.
Appellant agrees any potential claims for defamation abated upon Dr. Dycoco’s
death. However, appellant argues the wrongful death statute, R.C.
2125.01(A)(1), creates a new cause of action separate and apart from the cause
of action for defamation: (A)(1) Except as provided in division (B) of this
section, if the death of a person is caused by wrongful act, neglect, or
default that would have entitled the injured person to maintain a civil action
and recover damages if death had not ensued, the person who would have been
liable if death had not ensued or the administrator or executor of the estate
of the liable person as that administrator or executor is liable in damages in
an action for wrongful death under this chapter***. The specific statutory
language governing abatement by death of party, R.C. 2311.21, states as
follows: Unless otherwise provided, no action or proceeding pending in any
court shall abate by the death of either or both of the parties thereto,
except actions for libel, slander, malicious prosecution, for a nuisance, or
against a judge of a county court for misconduct in office, which shall abate
by the death of either party.




Based upon the clear mandate of R.C. 2311.21, we find the trial court did
not err in granting summary judgment to appellees on the wrongful death claim.
Assignment of Error III is denied.

IV




Appellant claims the trial court erred in determining appellees were not
liable under the intentional infliction of emotional distress claim. We
disagree. In Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 374, the
Supreme Court of Ohio, quoting from Restatement of the Law 2d, Torts (1965)
71, Section 46(1), defined intentional infliction of emotional distress as:
?[o]ne who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional distress to another is subject to liability for such
emotional distress, and if bodily harm to the other results from it, for such
bodily harm.’ The Yeager court at 374-375 went on to quote comment d from said
section to describe the standard of “extreme and outrageous”: ?***It has not
been enough that the defendant has acted with an intent which is tortious or
even criminal, or that he has intended to inflict emotional distress, or even
that his conduct has been characterized by “malice,” or a degree of
aggravation which would entitle the plaintiff to punitive damages for another
tort. Liability has been found only where the conduct has been so outrageous
in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community. Generally, the case is one in which the recitation of the
facts to an average member of the community would arouse his resentment
against the actor, and lead him to exclaim, “Outrageous!”




?The liability clearly does not extend to mere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities.***There must
still be freedom to express an unflattering opinion, and some safety valve
must be left through which irascible tempers may blow off relatively harmless
steam. See Magruder, Mental and Emotional Disturbance in the Law of Torts,
[49] Harvard Law Review 1033, 1053 (1936).***’




In order to establish a claim for intentional infliction of emotional
distress, a claimant must demonstrate the following: (1) the defendant either
intended to cause emotional distress or knew or should have known that the
actions taken would result in serious emotional harm to the plaintiff; (2) the
defendant’s conduct was extreme and outrageous; (3) the defendant’s actions
proximately caused plaintiff’s psychic injury; and (4) the mental distress
suffered by the plaintiff was serious.




Piro v. Franklin Twp. (1995), 102 Ohio App.3d 130, 142, citing Davis v.
Billow Co. Falls Chapel (1991), 81 Ohio App.3d 203, 206.




Appellant argues the termination of the agreement without notice or due
process satisfies the first and second elements: In the instant case all
Appellees falsely accused Dr. Dycoco of incompetence based upon reviews by
Kronhaus. Kronhaus, was not an actual party to the contract between CAA and
Dr. Dycoco, and he also had no business relationship with
CompHealth.***Notwithstanding, he contacted Dr. Dycoco, and immediately
without providing either a valid peer review process or a due process hearing,
fired him. As a result of the termination of the contract with CAA, Dr. Dycoco
lost his staff privileges at Guernsey Memorial Hospital, where he had these
staff privileges in the Anesthesiology Department since 1985.***Further, Dr.
Dycoco was denied these due process privileges pursuant to the Guernsey
Memorial Bylaws even after he had specifically been assured of them in the
March 26, 1993, Cover Letter from Lowenhagen.




Appellant’s Brief at 22.




The extreme and outrageous conduct argued sub judice was merely an exercise
of the option for termination under the agreement. See, Independent Contractor
Agreement at Articles 5 and 8. If one cries out “extreme and outrageous”
conduct, one must establish the conduct went beyond all possible bounds of
decency and was utterly intolerable in a civilized community. Such was never
presented in this case. Appellant merely relied on the acts of appellees
without presenting any substantiated facts or evidence. Upon review, we find
appellees exercised an option under the agreement and as a result, the
agreement with Dr. Dycoco was terminated as well as his staff privileges with
Hospital. These results were included in and anticipated by the express
language in the agreement. The trial court did not err in finding in favor of
appellees on the intentional infliction of emotional distress claim.
Assignment of Error IV is denied.

V, VI




Appellant claims the trial court erred in determining appellees were not
liable under the claims for wrongful death and funeral expenses. We disagree.
As we found in Dycoco I, and have also found herein no causes of action for
breach of contract, tortious interference with a business relationship,
defamation and intentional infliction of emotional distress, no wrongful act
was committed as required by R.C. 2125.01(A)(1). Therefore, the claims for
wrongful death and funeral expenses do not have any merit. Upon review, we
find the trial court did not err in finding in favor of appellees on these
claims. Assignments of Error V and VI are denied.

VII




Appellant claims the trial court erred in not granting her motion for
further discovery in the claim against Dr. Stoner. We disagree. Appellant
properly points out that under the standard for a motion for summary judgment,
all discovery should be complete. Appellant argues because of a stay order
regarding the claims against Dr. Stoner, implemented by the Court of Common
Pleas of Franklin County, Ohio in a case before it concerning the liquidation
of the PIE Mutual Insurance Company of which Dr. Stoner was an insured,
appellant was precluded from fully discovering the claims against Dr. Stoner.
The granting or denying of a motion involving discovery is within the sound
discretion of the trial court. Manofskey v. Goodyear Tire and Rubber Co.
(1990), 69 Ohio App.3d 663. In order to find an abuse of that discretion, we
must determine the trial court’s decision was unreasonable, arbitrary or
unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217. By judgment entry filed March 16, 1999,
the trial court denied the request for further discovery, finding as follows:
This case comes before the Court for non-oral hearing on Motion for Summary
Judgment of Defendant Brady B. Stoner, M.D. and Motion of Plaintiff for the
Vacating of the Non-Oral Hearing Date of March 11, 1999 and to Stay the Date
for Ruling Upon Defendant’s, Brady Stoner, M.D., Motion for Summary Judgment
Until After Remand from the Court of Appeals and then the Completion of
Discovery.




The Court finds that the instant case was filed December 13, 1994 and has
been, therefore, on-going for in excess of four years. The Court further finds
that the issues presented by Defendant, Brady Stoner, M.D., are substantially
similar to those issues now on appeal. The Court concludes that in the
interests of judicial economy, Plaintiff’s Motion for Stay must be and hereby
is, DENIED.




During the course of the case, appellant never requested leave from the
trial court to permit discovery of Dr. Stoner until the thirteenth hour. We
concur with the trial court that the nexus of the case revolves around the
agreement, the denial of parol evidence and the lack of a business
relationship with Hospital. All these issues had been briefed, discovered and
exhausted in the first appeal involving Hospital and the subsequent motion for
summary judgment filed by appellees. Upon review, we find no abuse of




discretion by the trial court in denying the request for a stay for further
discovery. Assignment of Error VII is denied. The judgment of the Court of
Common Pleas of Guernsey County, Ohio is hereby affirmed.




By Farmer, J. Hoffman, P.J. and Edwards, J. both concur in part and dissent
in part.




Hoffman, P.J., concurring in part and dissenting in part I concur in Judge
Farmer’s analysis and disposition of appellant’s first, second, and fourth
assignments of error. With respect to appellant’s third assignment of error, I
agree a claim for defamation would abate upon the death of Dr. Dycoco.
However, I find appellant’s cause of action for wrongful death based thereon
does not likewise abate pursuant to the language in R.C. 2125.01(A)(1).
Accordingly, I concur with Judge Edwards appellant’s third assignment of error
should be sustained. As to appellant’s fifth and sixth assignments of error, I
concur with Judge Edwards such assignments should be sustained. Judge Edwards
would limit appellant’s wrongful death claim based solely on defamation. I
find such limitation overly restrictive. Though the representation made by
appellees concerning appellant’s due process protections in the March 26, 1993
cover letter may be insufficient to support appellant’s causes of action for
breach of contract, tortuous interference with a business relationship, and
intentional infliction of emotional distress; I believe reasonable minds could
conclude appellees committed a wrongful act, not only by alleging appellant
was incompetent, but also by terminating him without a due process hearing as
promised in the letter.




EDWARDS, J. CONCURRING AND DISSENTING OPINION




I concur with Judge Farmer’s analysis and disposition of appellant’s first,
second, fourth and seventh assignments of error. I also concur with Judge
Farmer’s analysis and disposition of appellant’s fifth and sixth assignments
of error but only to the extent that those assignments address wrongful death
claims based on breach of contract, tortious interference with a business
relationship, and intentional infliction of emotional distress. I respectfully
dissent from Judge Farmer’s disposition and analysis of appellant’s third
assignment of error and with the portions of the analysis and disposition of
the appellant’s fifth and six assignments of error to the extent that those
assignments address a wrongful death claim based on defamation. Judge Farmer
concludes that a wrongful death claim must fail in the case sub judice because
Dr. Dycoco’s defamation action abated upon his death. I reach a different
conclusion based on the plain language of the wrongful death statutes and upon
the philosophy behind the wrongful death statutes. The plain language of R. C.
2125.01(A)(1) reads in part: “Except as provided in division (B) of this
section, if the death of a person is caused by wrongful act, neglect or
default that would have entitled the injured person to maintain a civil action
and recover damages if death had not ensued, the person who would have been
liable if death had not ensued … is liable in damages in an action for
wrongful death under this chapter, notwithstanding the death of the injured
person …” (Emphasis added.)




Defamation is a civil action that Dr. Dycoco could have maintained had
death not ensued. It abates on his death but if he had not died, he could have
maintained a defamation action. In addition, the philosophy of the wrongful
death statute is to compensate the decedent’s survivors for losses they
sustained as a result of the decedents death. R.C. 2125.02. Compensation under
the wrongful death statutes is not for the losses sustained personally by the
decedent. Therefore, I would reverse and remand this case to the trial court
for further proceedings on the issue of the wrongful death action based on
defamation.