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McGarry v. Horlacher6/21/2002
had not been put in peril by an external force nor had she witnessed an accident or event putting the life of a close friend or loved one in peril, the only situations in which the supreme court has recognized such a cause of action. See, generally, Heiner v. Moretuzzo (1995), 73 Ohio St.3d 80. The court further pointed out that, even if cancer could be characterized as an external force, Horlacher had not caused the cancer, and that treating the alleged misdiagnosis of the cancer as an external force was an "untenable" stretch of the definition of negligent infliction of emotional distress. Finally, the trial court noted that McGarry had not pled any facts which would support a claim for intentional infliction of emotional distress. We agree with all of these conclusions.
. McGarry also contends that the trial court erred in directing a verdict on her "survivability claim" or what the defense refers to as the "direct medical malpractice claim." This argument relates to whether McGarry's chance of survival had been greater than fifty percent at any stage in her treatment by Horlacher. Horlacher presented evidence that leiomyosarcoma is an extremely aggressive disease and that, even if diagnosed in Stage I, the earliest stage of malignancy, the chances of surviving the disease are less than fifty percent. McGarry claims that some evidence was presented from which the jury could have concluded that she would have had a greater-than-fifty-percent chance of survival if the leiomyosarcoma had been caught in its early stages. McGarry's expert, Dr. Orr, testified that, even when diagnosed in Stage I, women with leiomyosarcoma have "as high as a 50 percent recurrence." McGarry relied on Horlacher's own testimony in opposing the motion for directed verdict.
. Initially, on cross-examination, Horlacher was asked whether McGarry had been "more likely to live than not" if the leiomyosarcoma had been diagnosed and removed in 1997. Horlacher responded that Lynn had not had leiomyosarcoma in August 1997. He then testified:
. "Q: * ou would agree [that] if she had been diagnosed and operated on in 1997, she more likely would be able to live a normal life expectancy than not?
. "A: I would agree with that.
. "Q: Doctor, in regard to the care and treatment of her, the sooner you get this, you catch a leiomyosarcoma and start treating it, the greater chance then of survival, a longer time, would you agree with that?
. "A: That is not - with this tumor, with this kind of malignancy, that is not so easy to say as it is with others because it is so aggressive. If it is found when it is even confined to the uterus, chances are still only 50 percent that your patient will survive five years. *"
. When Horlacher moved for a directed verdict at the close of McGarry's case, the trial court found that McGarry had presented no evidence that "the chance of survival was anything greater than 50 percent at any stage of the treatment." McGarry took issue with this conclusion, claiming that " he fair reading" of Horlacher's testimony was that "she would have lived had she been operated on during 1997 for sure. More than 50/50." However, at the time of this dispute, Horlacher's testimony had not been transcribed, and the court and the parties had to rely on their recollections of the testimony, which were not consistent. During Horlacher's direct examination, his attorney followed up on this issue, asking whether he was of the opinion that McGarry would "more likely have lived than not" if the leiomyosarcoma had been diagnosed and removed in 1997. At that point, Horlacher clarified that, even if the leiomyosarcoma had been in Stage I at that time, it
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