Citation. Strasel v. Seven Hills Ob-Gyn Assocs., 170 Ohio App. 3d 98, 2007-Ohio-171, 866 N.E.2d 48, ., Hamilton County Jan. 19, 2007)
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Brief Fact Summary.
A woman underwent a dilatation and curettage (D&C) at her doctor’s suggestion, after he misdiagnosed her as not pregnant. Several weeks later, it was discovered she was pregnant, and that the D&C may have caused serious harm to the fetus. The woman feared for her unborn baby’s health, and she suffered extreme depression and stress and brought suit against the doctor and the hospital.
Synopsis of Rule of Law.
A woman who delivers a healthy baby can recover for negligent infliction of emotional distress based upon fearing for the well-being of her baby if the alleged negligence of defendants had placed the baby in real danger.
Facts.
Christina Strasel (Plaintiff), who was obese, went to an initial pregnancy appointment at Seven Hills OB-GYN Associates (Defendant). A sonogram revealed a sac in her uterus, but the sonographer was not able to detect a heartbeat or a fetal pole. In her report, the sonographer stated that she suspected a blighted ovum, which is a condition where an empty placental sac develops in the uterus without a fetus, but the sonographer’s ability to see was limited by Plaintiff’s obesity. She recommended a follow-up sonogram. Plaintiff’s medical file was given to Dr. Xavier G. Ortiz (Defendant), who diagnosed Plaintiff with a blighted ovum. Dr. Ortiz (Defendant) did not examine Plaintiff, but he did schedule a D&C procedure for Plaintiff. Several weeks after the procedure, Plaintiff believed she was still pregnant and made an appointment at Seven Hills (Defendant). Her blood test was positive and she was given another sonogram. The sonographer told Plaintiff that she was 13 weeks pregnant. Dr. Ortiz (Defendant) then told Plaintiff that he had misdiagnosed her viable pregnancy as a blighted ovum, and that her baby might suffer problems resulting from the D&C. Plaintiff then learned that the possible problems were severe. She worried about her unborn baby constantly throughout her pregnancy, withdrew from her other children, and separated from her husband. She did give birth to a healthy baby girl, but she continued to worry about the possibility of neurological diseases that could still occur. Plaintiff was diagnosed as having a major depressive disorder and post-traumatic stress disorder as a result of the D&C and the uncertainty of how it would affect her daughter. Plaintiff and her husband then sued for malpractice and negligent infliction of emotional distress, and requested punitive damages. She was awarded $210,000.00 at arbitration. Defendants Ortiz and Seven Hills appealed the arbitration award. A jury then returned a verdict of $372,000.00 in Plaintiff’s favor, but against Plaintiff’s husband. Plaintiff then filed a motion for prejudgment interest, which was denied by the trial court.
Issue.
Can a woman who delivers a healthy baby recover for negligent infliction of emotional distress based upon fearing for the well-being of her baby if the alleged negligence of defendants had placed the baby in real danger?
Held.
(Per curiam) Yes. A woman who delivers a healthy baby can recover for negligent infliction of emotional distress based upon fearing for the well-being of her baby if the alleged negligence of defendants had placed the baby in real danger. Regardless if actual injury occurred, Plaintiff’s baby had been subjected to real physical peril by the D&C, so in this case the peril existed. Plaintiff’s emotional distress was the result of a very real risk of injury to a seven-week-old fetus that was subjected to a procedure equivalent to an abortion. Affirmed in part, reversed in part, and remanded.
Discussion.
The fact that Plaintiff delivered a healthy baby does not mean that the “peril” did not exist; it only means there was no actual injury as a result of the negligence. Note that damages cannot be recovered for psychological harm and emotional injuries that arise from fear of a “non-existent peril.” The peril existed because negligence created the threat of actual and physical bodily harm to the unborn fetus. Plaintiff’s emotional distress was caused by the peril and, therefore, it also was caused by the negligence.
