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Schlachet v. Cleveland Clinic Found.5/30/1995
NAHRA, Judge.
In this medical malpractice action, plaintiff-appellant Alice Schlachet appeals from the trial court order which granted the motion for summary judgment filed by defendant-appellee Cleveland Clinic Foundation, thus terminating the action.
Suit was originally filed against appellee on April 14, 1992 by appellant and her husband, Sanford Schlachet. Mr. Schlachet subsequently died; thereafter, the trial court issued an order substituting appellant as administrator of Mr. Schlachet's estate as a party-plaintiff in the action. Appellant later amended the complaint.
As originally filed, the complaint stated four claims for relief. The first claim alleged that appellee's employees were negligent in their treatment of Sanford Schlachet and that as a "direct and proximate result" of the negligence, Mr. Schlachet "suffered a loss of a chance of survival from * * * lung cancer."
The second claim for relief alleged that as a "direct and proximate result" of the negligence, Mr. Schlachet "suffered and will suffer extreme mental anguish and emotional upset."
The third claim for relief alleged that as a "direct and proximate result" of the negligence, Mr. Schlachet "suffered a loss of the remaining years of his normal life expectancy."
The fourth claim for relief alleged that as a "direct and proximate result" of the negligence, Mrs. Schlachet had suffered a loss of her husband's consortium and "extreme mental anguish and upset."
Appellee's answer admitted medical treatment of Mr. Schlachet during the relevant time period but denied the other pertinent allegations of the complaint. Appellee also raised as affirmative defenses failure to state a claim upon which relief could be granted and "contributing fault."
Following some discovery, appellee filed a motion for summary judgment. The following stipulations of fact were submitted to the trial court by the parties for purposes of appellee's motion:
"1. On August 28, 1990, Sanford Schlachet, deceased, while under the care and treatment of the physicians and staff at the Cleveland Clinic Foundation, had an x-ray taken of his chest.
"2. The x-ray taken on August 28, 1990, demonstrated a cancerous mass in the apical posterior segment of the tight upper lobe of the right lung.
"3. The physicians and staff of the Cleveland Clinic Foundation negligently failed to diagnose the cancerous mass that was evident on the August 28, 1990, x-ray.
"4. On April 15, 1991, Sanford Schlachet, deceased, was under the care and treatment of the physicians and staff of the Cleveland Clinic Foundation.
"5. The chest x-ray was taken on April 15, 1991, which demonstrated a 3 cm. soft tissue mass in the apical posterior segment of the upper lobe of the right lung.
"6. A comparison of the chest x-ray taken on August 28, 1990, to the chest x-ray taken on April 15, 1991, demonstrates an increase in the size of the mass that the physicians and staff of the Cleveland Clinic Foundation negligently failed to diagnose on August 28, 1990.
"7. Pathology analysis of the adjacent nodes conducted on April 22, 1991, reported to show a Stage 3 adenocarcinoma on the right lung.
"8. The failure of the Cleveland Clinic to diagnose the cancerous mass in Sanford Schlachet's right lung on August, 28, 1990, directly and proximately resulted in the loss of a twenty (20) to thirty (30) percent chance of survival."
In its motion for summary judgment, it was appellee's position that "as negligence has been stipulated * * *, the critical issue at bar is that
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