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Davis v. Liebson9/19/2003
Judgment Appealed From Is: Affirmed in part, reversed in part, and the cause remanded
. On March 15, 2000, plaintiff-appellant Phyllis M. Davis consulted defendant-appellee Dr. Samuel Liebson, a licensed podiatrist, about problems that she was having with her feet. Liebson diagnosed Davis with "hammertoes" and recommended surgery to correct the condition. Davis agreed to the surgery. As part of the preoperative workup, a nurse drew some of Davis's blood. Liebson sent Davis's blood to a laboratory for various tests, including a test for HIV.
. Prior to the date scheduled for the surgery, Davis's employer, ophthalmologist Dr. Howard Melvin, told her that surgery was not necessary to treat her condition. Davis sought a second opinion from podiatrist Dr. Algner Broach. Broach examined Davis and determined that she did not suffer from "hammertoes." Broach told Davis that she had corns and calluses on her feet for which surgery was unnecessary. Davis called Liebson and cancelled the surgery.
. Subsequently, Davis received a bill from the laboratory that performed the preoperative blood tests ordered by Liebson. Davis stated that she discovered at that time that the HIV test had been performed. Davis went to Liebson's office to retrieve her medical records to determine why an HIV test had been performed on her blood without her knowledge or consent. While examining her medical records, Davis noticed that a test for syphilis had also been done. Davis's test results were negative for both HIV and syphilis.
. Davis filed a complaint alleging that Liebson had failed to obtain her consent to perform HIV and syphilis tests on her blood. Davis sought to recover damages for a violation of R.C. 3701.242 and for negligent and intentional infliction of emotional distress. Davis also requested punitive damages. Liebson filed a motion for summary judgment, which the trial court granted. Davis has appealed, raising one assignment of error for our review.
. Davis's assignment of error alleges that the trial court erred in granting Liebson's motion for summary judgment. The arguments in Davis's brief are limited to whether there was a genuine issue of material fact regarding Liebson's alleged violation of R.C. 3701.242 and whether Davis could recover punitive damages for such a violation.
. Summary judgment was appropriate if there were no genuine issues of material fact, Liebson was entitled to judgment as a matter of law, and after construing the evidence most strongly in Davis's favor, reasonable minds could only have reached a conclusion adverse to her. See Civ.R. 56(C).
. For the purposes of this appeal, we accept Davis's statement that the HIV test was performed without her knowledge and consent. R.C. 3701.242(A) provides that " n HIV test shall be performed only if, prior to the test, informed consent is obtained either by the person or agency of state or local government ordering the test or by the person or agency performing the test."
. R.C. 3701.242(E)(5) states that the informed-consent provisions of R.C. 3701.242(A) do not apply to the performance of an HIV test " hen the test is performed by or on the order of a physician who, in the exercise of his professional judgment, determines the test to be necessary for providing diagnosis and treatment to the individual to be tested, if the individual or his parent or guardian has given consent to the physician for medical treatment."
. In support of his motion for summary judgment, Liebson submitted his own affidavit, in which he stated that he had ordered the tests for HIV and syphilis as part of "the standard pre-operative workup." Liebson s
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