Dobran v. Franciscan Med. Ctr., 102 Ohio St.

3d 54 (Ohio 2004)

Judicial History The trial court found in favor of the defendants and granted summary judgment because the plaintiff was not faced with actual physical peril as a result of the defendants action; therefore the plaintiff was unable to show cause for his claim of negligent infliction of emotional distress. The appellate court reversed this decision stating the physical peril faced by the plaintiff was the missed opportunity of an early diagnosis of the return of his cancer. Facts In 1988, plaintiff John J. Dobran wanted to participate in a medical trial which was hoped to diagnose cancer significantly earlier than the current standard of tests at that time. With Dobrans doctors assistance, a sample from his removed lymph nodes was frozen and shipped to California to be examined. The sample thawed on the way to California and when it arrived, it was unusable for testing. Since the lumph nodes for the study were already removed, Dobran could not participate in the study in the future. Issue Did the appellate court err in reversing the judgment of the trial court when it found that Dobran suffered actual physical peril when he lost the opportunity to participate in the early cancer screening trial? a) Did Dobran meet the elements to prove a claim of negligent infliction of emotional distress? Rules Ohio does not recognize a right to recovery for negligent infliction of emotional distress where the distress is caused by fear of a nonexistent peril. Heiner v. Moretuzzo (1995), 73 Ohio St.3d 80, 1995 Ohio 65, 652 N.E.2d 664.

Analysis One of the elements which must be met in order to bring a claim of negligent infliction of emotional distress is proof that there was an actual physical peril suffered by the plaintiff. In this case, traditional histology showed Dobrans cancer had not returned. When his lymph node sample was lost, it had already been shown that he no longer had cancer and therefore was not in any physical peril which could have been alleviated by the trial testing of the lymph node sample. Conclusion The Supreme Court of Ohio reversed the appellate courts decision and reinstated the trial courts decision of summary judgment in favor of the defendants.