Opinion
2021-00708AD
04-14-2022
HOWARD FRIEDMAN Plaintiff v. OHIO STATE UNIVERSITY VETERINARY MEDICAL CENTER Defendant
Sent to S.C. Reporter 2/8/23
MEMORANDUM DECISION
FINDINGS OF FACT
{¶1} Howard Friedman ("plaintiff") filed a claim against the defendant, Ohio State University Veterinary Medical Center ("OSUVMC"). Plaintiff related on June 2, 2020, he brought his cat, Tra, to defendant's facility for treatment of fluid in the pleural space. Plaintiff claimed that OSUVMC placed the needle in the wrong place and put in air and did not take out fluid, causing cardiac arrest and resulting in plaintiff's decision to euthanize Tra. Plaintiff stated that defendant told him there was no bill due at the end of the appointment. However, five months later he received a bill with late fees. Plaintiff stated that he is "suing for malpractice and financial harassment, damaging credit." Plaintiff did not attach anything to his complaint. Plaintiff seeks damages in the amount of $9,950.00. Plaintiff submitted the $25.00 filing fee.
{¶2} Defendant submitted an Investigation Report denying liability in this matter. Defendant asserted that plaintiff's claim for malpractice is time-barred under Ohio Revised Code Section 2305.11(A) because it was not brought within the one-year statute of limitations for malpractice actions. Defendant stated that plaintiff presented no evidence of malpractice. Defendant asserted that plaintiff failed to establish the veterinary standard of care by evidence from a qualified expert. Defendant further stated that plaintiff cannot demonstrate the damages claimed. Next, defendant asserted that noneconomic damages for injury to a companion animal are not recognized in Ohio. Finally, defendant asserted that financial harassment is not a cognizable claim upon which relief can be granted.
{¶3} Plaintiff filed a response to defendant's Investigation Report. Plaintiff stated that OSUVMC should have taken a scan of Tra's lungs to put the needle in the correct place to extract the fluid. Plaintiff stated that the statute of limitation should not apply because he filed this case in Cleveland Municipal Court in April 2021, and the attorney general delayed the case there. Finally, plaintiff stated that he was requesting some of his damages due to his wife's PTSD and the harm to their credit.
CONCLUSIONS OF LAW
{¶4} Plaintiff failed to present any evidence of harassment, financial or otherwise. Therefore, plaintiff's claim for harassment is DISMISSED.
{¶5} The legal definition of malpractice is limited to medical professionals and attorneys. Therefore, the statute of limitation in R.C. 2305.11 does not apply to claims of negligence against veterinarians. Southall v. Gabel, 28 Ohio App.2d 295, 298, 277 N.E.2d 230 (10th Dist. 1971).
{¶6} However, the burden of proof on a plaintiff in the case of negligence against a veterinarian parallels the burden of plaintiffs in medical malpractice cases.
* * [I]n order to establish negligence by a veterinarian, it must be shown that the injury complained of was caused by the doing of a particular thing that a veterinarian of ordinary skill, care and diligence would not have done under like or similar circumstances, or by the failure or omission to do some particular thing that such a veterinarian would have done under like or similar circumstances.* * *
{¶7} Ullmann v. Duffus, 2005-Ohio-6060, ¶ 14 (10th Dist.).
{¶8} To establish a claim of medical malpractice, plaintiff "must show the existence of a standard of care within the medical community, breach of that standard of care by the defendant, and proximate cause between the medical negligence and the injury sustained." Taylor v. McCullough-Hyde Mem. Hosp., 116 Ohio App.3d 595, 599, 688 N.E.2d 1078 (12th Dist. 1996); citing Bruni v. Tatsumi, 46 Ohio St.2d 127, 131-132, 346 N.E.2d 673 (1976).
{¶9} The exception to that rule is "in cases where the nature of the case is such that the lack of skill or care of the physician and surgeon is so apparent as to be within the comprehension of laymen and requires only common knowledge and experience to understand and judge it ***." Bruni at 130. However, the exception is limited in scope and "[r]elatively few courts in Ohio have found the common knowledge exception applicable so as to obviate the need for expert witness testimony on the malpractice issue." Buerger v. Ohio Dept. of Rehab. &Corr., 64 Ohio App.3d 394, 399, 581 N.E.2d 1114 (10th Dist. 1989). Plaintiff's allegation of veterinary negligence is not the type for which this exception would apply.
{¶10} When a plaintiff is alleging substandard medical treatment, expert medical opinion must be provided to establish a prima facie case. Plaintiff may not simply rest upon allegations of medical negligence as stated in his complaint. See Saunders v. Cardiology Consultants, Inc., 66 Ohio App.3d 418, 420, 584 N.E.2d 809 (1st Dist. 1990); Hoffman v. Davidson, 31 Ohio St.3d 60, 61, 508 N.E.2d 958 (1987); Guth v. Huron Road Hospital, 43 Ohio App.3d 83, 84, 539 N.E.2d 670 (8th Dist. 1987). This also applies in veterinary negligence claims. In the present claim, plaintiff has failed to produce an expert veterinary opinion regarding his allegation that Tra received inadequate treatment.
{¶11} As to plaintiff's claim that he and his wife should be compensated for his wife's PTSD, non-economic damages are not compensable in the case of injury to a pet.
"The law of Ohio regards a pet as the personal property of its owner. Strawser v. Wright, 80 Ohio App.3d 751, 754, 610 N.E.2d 610 (Preble Cty. 1992). In Strawser, the court addressed a plaintiff's claim for negligent infliction of emotional distress arising out of the death of her new puppy, stating: 'We sympathize with one who must endure the sense of loss which may accompany the death of a pet; however, we cannot ignore the law. * * * Ohio law simply does not permit recovery for serious emotional distress which is caused when one witnesses the negligent injury or destruction of one's property.' Id. at 754755. Ullmann at ¶ 30."
{¶12} Therefore, judgment is rendered in favor of the defendant.
ENTRY OF ADMINISTRATIVE DETERMINATION
{¶13} Having considered all the evidence in the claim file, and for the reasons set forth in the memorandum decision filed concurrently herewith, judgment is rendered in favor of defendant. Court costs are assessed against plaintiff.