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Perkins v. Lavin6/29/1994
DICKINSON, Judge.
Plaintiff Bonita Perkins has appealed from an order of the Summit County Court of Common Pleas that granted defendant Akron City Hospital's motion for summary judgment and dismissed her complaint against it. She has argued thasthe trial court (1) incorrectly determined that she was required to comply with R.C. 2307.42, and (2) incorrectly determined that there was not a genuine issue of material fact and that defendant was entitled to judgment as a matter of law on her claims against it for assault and battery and intentional infliction of emotional distress. This court reverses the order of the trial court in regard to plaintiffs assault and battery claim because (1) the Ohio Supreme Court declared R.C. 2307.42 invalid in Hiatt v. S. Health Facilities, Inc. (1994), 68 Ohio St.3d 236, 626 N.E.2d 71, and (2) the trial court's determination that defendant was entitled to judgment as a matter of law on plaintiff's assault and battery claim was incorrect. This court affirms the order of the trial court as it relates to plaintiff's intentional infliction of emotional distress claim because plaintiff failed to submit evidence that defendant had engaged in conduct that was extreme or outrageous.
Plaintiff is a Jehovah's Witness. She gave birth to a baby at defendant hospital on September 26, 1991, and was discharged two or three days later. After going home, she began hemorrhaging and was forced to return to the hospital. She specifically informed defendant's employees that she was not to be provided any blood or blood derivatives and completed and signed a form to that effect:
"I REQUEST THAT NO BLOOD OR BLOOD DERIVATIVES BE ADMINISTERED TO [PLAINTIFF] DURING THIS HOSPITALIZATION, NOTWITHSTANDING THAT SUCH TREATMENT MAY BE DEEMED NECESSARY IN THE OPINION OF THE ATTENDING PHYSICIAN OR HIS ASSISTANTS TO PRESERVE LIFE OR PROMOTE RECOVERY. I RELEASE THE ATTENDING PHYSICIAN, HIS ASSISTANTS, THE HOSPITAL AND ITS PERSONNEL FROM ANY RESPONSIBILITY WHATEVER FOR ANY UNTOWARD RESULTS DUE TO MY REFUSAL TO PERMIT THE USE OF BLOOD OR ITS DERIVATIVES."
Due to plaintiff's condition, it became necessary to perform an emergency dilatation and curettage on her. Plaintiff continued to bleed and her condition deteriorated dramatically. Her blood count dropped, necessitating administration of blood products as a life-saving measure. Her husband, who is not a Jehovah's Witness, consented to a blood transfusion, which was administered. Plaintiff recovered and filed this action against defendant for assault and battery and intentional infliction of emotional distress.
Defendant moved to dismiss plaintiff s complaint on January 19, 1993, arguing that she had failed to comply with R.C. 2307.42 because she had not attached an affidavit to her complaint indicating that she had consulted with a physician prior to instituting her claim or explaining why she was excused from doing so. Thstrial court issued an order on February 19, 1993, converting defendant's motion to dismiss into a motion for summary judgment and affording both parties an opportunity to submit additional materials. Defendant filed a supplemental memorandum in support of motion for summary judgment in which it argued that it was entitled to judgment as a matter of law on plaintiff's assault and battery claim because it had not intended to "inflict personal injury" on her. It also argued that it was entitled to judgment as a matter of law on plaintiff's intentional infliction of emotional distress claim because it had not engaged in "extreme and outrageous conduct." Following the filing of a response by plaintiff, the trial court granted defendant's motion for summ
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