SANDRA OUTLAW, PLAINTIFF-APPELLANT vs. SANDRA L. WERNER, M.D., ET AL., DEFENDANTS-APPELLEES No. 92297 COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY 2009 Ohio 2362; 2009 Ohio App. LEXIS 2004 May 21, 2009, Released PRIOR HISTORY: [**1]
[*P2] On December 21, 2007, Outlaw originally
Civil Appeal from the Cuyahoga County Court of
filed this action against defendants-appellees, Sandra
Werner, Saba Aftab, Tung Trang, Michael Smith andMetro Health Medical Center (collectively "appellees"). DISPOSITION:
On January 31, 2008, she submitted an amendedcomplaint. Outlaw alleged that she was defamed andsuffered severe emotional distress after certain members
COUNSEL: Sandra Outlaw, APPELLANT, Pro Se,
attempting to obtain drugs. Appellees made notations in
FOR APPELLEES: Brian D. Sullivan, Martin T. Galvin,
Outlaw's medical records during her attempts to obtain
James L. Malone, Reminger & Reminger Co., LPA,
medication at the healthcare facility [**2] on December
JUDGES: BEFORE: Jones, J., Cooney, A.J., and Rocco,
[*P3] On February 5, 2008, appellees submitted
their answer denying the substantive allegations in
Outlaw's complaint. Additionally, appellees asserted anumber of affirmative defenses, including the fact that
OPINION BY: LARRY A. JONES
the comments appearing in Outlaw's medical chart wereprotected by a qualified or absolute privilege under Ohio
[*P4] On July 7, 2008, appellees filed their motion
for summary judgment, arguing that Outlaw's defamation
claim failed as a matter of law. Specifically, appellees
asserted that Outlaw's medical records did not contain
("Outlaw"), appeals the decision of the lower court.
any false information and that the information was never
Having reviewed the arguments of the parties and the
published to anyone outside the MetroHealth System. On
pertinent law, we hereby affirm the lower court.
August 4, 2008, Outlaw submitted her response toappellees' motion for summary judgment. Outlaw argued
2009 Ohio 2362, *P4; 2009 Ohio App. LEXIS 2004, **2
that defendants' notations in her medical records were
Medical Record attached as Exhibit "B" to
factually incorrect. Further, Outlaw argues that the
defendants' motion for summary judgment.
publication element of the tort of defamation wassatisfied because the comment was written in her medical
[*P8] Eight days later, on December 26, 2006,
chart and subsequently confirmed by a second physician
Outlaw showed up at the MetroHealth Ear, Nose and
at MetroHealth without any independent test being
Throat Clinic office of Dr. Saba Aftab. Outlaw
conducted to confirm the presence of drugs in her system.
complained of sharp pain across her forehead and pain onthe bridge of her nose. After determining that Outlaw had
[*P5] On August 15, 2008, appellees submitted
no obvious signs of sinus pathology, Dr. Aftab
their reply [**3] in support of summary judgment. On
recommended that Outlaw utilize Flonase and nasal
September 30, 2008, the lower court granted appellees'
saline and attempted to give her prescriptions for each of
motion for summary judgment. The court concluded that
Outlaw failed to present any evidence establishing agenuine issue of material fact regarding the prima facie
became very agitated and stated that her pain was "lifethreatening." Dr. Aftab told Outlaw that her symptoms
might improve with Flonase and she should finish the
few Percocet pills she had from her prior visit to [**5]
judgment. Plaintiff fails to establish prima
the emergency room and then see how she felt in a few
facie claims for defamation and intentional
days. Outlaw then tore up the prescriptions for Flonase
and nasal saline, threw them on the floor, and stormed out
of the office without completing the discussion with Dr.
[*P10] Because Dr. Aftab was already aware of
Outlaw's previous trip to the emergency room, he noted
strongly in favor of plaintiff finds that
in Outlaw's medical chart that he suspected drug seeking
there remains no genuine issue of material
behavior. The conclusion was supported by evidence that
fact and that reasonable minds could only
there was no obvious source of Outlaw's pain and she
conclude that the defendants are entitled to
[*P11] Dr. Trang was the attending physician in the
ear, nose and throat clinic on the day Outlaw saw Dr.
[*P6] Outlaw submitted her notice of appeal on
Aftab. Dr. Trang was scheduled to see the patient once
the evaluation had been completed by Dr. Aftab.
[*P7] The facts are, on December 18, 2006, Outlaw
However, Outlaw stormed out of the office before Dr.
arrived at the MetroHealth Emergency Department
Trang was able to see her. Dr. Trang later noted in
complaining of sinus headaches and insisting that Motrin
Outlaw's medical chart that he agreed with Dr. Aftab's
was not relieving her complaints of pain. Outlaw was
prescribed Flonase, Zantac, and the narcotic Percocet.
[*P12] Within one hour of her visit to the ear, nose
Upon receipt of these prescriptions, Outlaw allegedly
[**4] threw away the Flonase and Zantac prescriptions,
retained the Percocet prescription, and began to exit the
headache and that the "only relief" for the pain was
hospital stating, "This is the only one I need." 1 The nurse
Percocet. Another attending physician noted in Outlaw's
promptly requested that Outlaw stay for the rest of her
chart that he was also suspicious that she was
discharge instructions. However, Outlaw refused and
"drug-seeking," [**6] and he did not dispense Percocet.
proceeded to leave MetroHealth with only the Percocetprescription.
notations in her private medical chart amounted to
1 See Affidavit of Sandra Werner, M.D. attached
extreme and outrageous conduct and defamation and that
to Appellee's Brief as Exhibit "A" and 12/18/06
2009 Ohio 2362, *P13; 2009 Ohio App. LEXIS 2004, **6
she suffered severe emotional distress as a result.
[*P21] To establish defamation, the plaintiffs must
demonstrate: "(1) that a false statement of fact was made,
[*P14] Appellant assigns three assignments of error
(2) that the statement was defamatory, (3) that the
statement was published, (4) that the plaintiff sufferedinjury as a result of the publication, and (5) that the
[*P15] [1.] "Trial court erred as a matter of law in
defendant acted with the required degree of fault in
ruling that Plaintiff failed to establish prima facie claim
publishing the [**8] statement." Bisbee v. Cuyahoga Cty.
for Defamation and Intentional Infliction of Emotional
Bd. of Elections (Mar. 1, 2001), Cuyahoga App. No.77629, 2001 Ohio App. LEXIS 759, quoting Pollock v. Rashid (1996), 117 Ohio App.3d 361, 368, 690 N.E.2d
[*P16] [2.] "Trial court erred as a matter of law in
ruling no genuine issue of material fact existed to beargued;
[*P22] R.C. 2739.01, governing libel and slander,
[*P17] [3.] "Trial court erred in allowing qualified
privilege as an affirmative defense to the defamation
"In an action for a libel or slander, it is
appellant's three assignments of error, we shall address
spoken of the plaintiff. If the allegation is
denied, the plaintiff must prove the facts,showing that the defamatory matter was
published or spoken of him. In such actionit is not necessary to set out any obscene
summary judgment is de novo. Pursuant to Civ.R. 56(C),
the party seeking summary judgment must prove that 1)there is no genuine issue of material fact; 2) the party isentitled to judgment as a matter of law; and 3) reasonable
[*P23] Outlaw cannot prove the elements necessary
minds can come to but one conclusion and that
to establish her claims of defamation or intentional
conclusion is adverse to the nonmoving party. Dresher v.
infliction of emotional distress. In order to establish a
Burt, 75 Ohio St.3d 280, 1996 Ohio 107, 662 N.E.2d 264.
prima facie case of defamation, "a plaintiff must establishthe utterance of a defamatory statement that is published
Intentional [**7] Infliction of Emotional Distress and
to a third person for which defendant is responsible, the
recipient's understanding of the defamatory meaning, andits actionable character." Hahn v. Kotten (1975), 43 Ohio
[*P20] To establish a claim for intentional infliction
St.2d 237, 243, 331 N.E.2d 713. Moreover, even if a
of emotional distress (IIED), a plaintiff must show that:
plaintiff can establish a claim for defamation, truth is an
1) the defendant intended to cause the plaintiff serious
absolute defense. R.C. 2739.02; Ed Schorey & Sons, Inc.
emotional distress; 2) the defendant's conduct was
v. Society Natl.Bank (1996), 75 Ohio St. 3d 433, 1996
extreme and outrageous; and 3) the defendant's conduct
Ohio 194, 662 N.E.2d 1074. [**9] (Emphasis added.)
was the proximate cause of plaintiff's serious emotionaldistress. Phung v. Waste Mgt., Inc., 71 Ohio St.3d 408,Truthfulness and Lack of Publication 410, 1994 Ohio 389, 644 N.E.2d 286. Extreme andoutrageous conduct is conduct that goes beyond all
[*P24] Here, Outlaw failed to present any evidence
possible bounds of decency and is so atrocious that it is
that the notations made in her medical records were
"utterly intolerable in a civilized community." Yeager v.
defamatory. The notation in Outlaw's medical record
Local Union 20 (1983), 6 Ohio St.3d 369, 375, 6 Ohio B.
simply stated that appellant was exhibiting drug-seeking
421, 453 N.E.2d 666. "Mere insults, indignities, threats,
behavior. A review of the record demonstrates that this
annoyances, petty oppressions, or other trivialities" are
notation was consistent with Outlaw's conduct and
insufficient to sustain a claim for relief. Id.
actions surrounding her refusal of medical treatment.
2009 Ohio 2362, *P24; 2009 Ohio App. LEXIS 2004, **9
[*P25] In Reimund v. C. Mitchell, M.D. (April 9,Severe [**11] and Debilitating Emotional Injury and 1996), Franklin App. No. 95APE11-1545, 1996 OhioSome Guarantee of Genuineness is Required App. LEXIS 1435, plaintiff brought suit against his doctorand hospital, alleging defamation with regard to his
[*P28] In addition to the fact that the notations were
medical records. In affirming the lower court's granting
not false and were not published, Outlaw failed to
of summary judgment in favor of the defendants, doctor
demonstrate any severe and debilitating emotional injury
and hospital, the Court of Appeals stated the following:
with some guarantee of genuineness in support of herclaim.
"A claim for defamation requires proof
[*P29] "Serious emotional distress requires an
that the party being sued 'published' to a
emotional injury which is both severe and debilitating."
third party information which was falseMotley v. Flowers Versagi Court Reporters (Dec. 11,
and which harmed the reputation of the
1997), Cuyahoga App. No. 72069, citing Paugh v. Hanksperson filing the lawsuit. In certain
(1983), 6 Ohio St.3d 72, 6 Ohio B. 114, 451 N.E.2d 759.
To prove "severe and debilitating emotional injury," a
plaintiff "must present some guarantee of genuineness in
support of his or her claim, such as expert evidence, to
prevent summary judgment in favor of the defendant."
caused Dr. Mitchell's medical impressions
Id., citing Knief v. Minnich (1995), 103 Ohio App.3d 103,658 N.E.2d 1072. "In lieu of or in addition to expert
testimony, a plaintiff may submit the testimony of lay
witnesses acquainted with the plaintiff who have
observed significant changes in the emotional or habitual
employed by Riverside, so he has failed to
makeup of the plaintiff." Id., citing Uebelacker v.show that he was damaged by the limitedCincorn Systems, Inc. (1988), 48 Ohio App.3d 268, 549
publication for which Riverside and Dr.
[*P30] Outlaw alleges that she has been exposed to
contempt, ridicule, shame, and disgrace [**12] because
of the notations in her medical records. Specifically,
[*P26] In addition to the fact that Outlaw's behavior
Outlaw argued in her brief that "Any and all of these
was consistent with the notations in the record, a
responses [contempt, ridicule, shame, and disgrace] were
"publication" was never made. The medical records in
experienced when the doctors refused to treat a condition
question are confidential pursuant to the Health Insurance
seen as willfully contracted." 2 However, Outlaw never
Portability and Accountability Act ("HIPPA"). See 45
presented "some guarantee of genuineness" through
expert testimony or lay witness testimony as required bylaw in order to withstand defendants' motion for
[*P27] Contrary to Outlaw's assertions regarding
alleged privacy breaches, no one outside of theMetroHealth System is able to access the information in
question without a signed release from the patient.
[*P31] Accordingly, Outlaw presented no evidence
Moreover, the medical records in question were accurate
that the notations in the medical records at issue have
and did not contain false information. As previously
caused injury to her reputation or caused her to be
stated, Outlaw's behavior was consistent with the
exposed to public hatred, contempt, ridicule, shame, or
notations in the records. More specifically, the record
demonstrates that Outlaw made repeated trips to differentdoctors and medical departments, had complaints of pain
Appellees have a Qualified Privilege on Outlaw's
with no medical explanation, disregarded all prescriptions
except Percocet, and acted with persistent erraticbehavior.
[*P32] "Defamatory statements are conditionally
2009 Ohio 2362, *P32; 2009 Ohio App. LEXIS 2004, **12
privileged if they pertain to or are motivated by the
[*P35] Accordingly, we find that Outlaw failed to
existence of some special relationship such as the family,
establish a prima facie claim for defamation or intentional
infliction [**14] of emotional distress. Additionally, we
relationship. It is generally accepted as appropriate and
find no error on the part of the trial court in allowing
desirable that one will take steps to protect the interests of
appellees a qualified privilege. Furthermore, based on the
another with whom he shares such a relationship."
evidence in the record, we find that the trial court did not
(Emphasis added.) Hahn, supra, at 247.
err in its granting of appellees' motion for summary
qualified privilege is demonstrated, then the plaintiff
must show express malice, which is ill will, hatred,revenge, or wanton and reckless disregard for the truth on
[*P36] Accordingly, Outlaw's first, second, and
the defendant's part. Hahn, supra, at 248; Tohline v.
third assignments of error are overruled. Cent. Trust Co., N.A. (1988), 48 Ohio App.3d 280, 284,
[*P37] The judgment of the trial court is affirmed.
It is ordered that appellees recover of appellant costs
[*P33] Actual malice is proved by showing that
"*** the statements were made with knowledge of theirfalsity, or with reckless disregard of whether they were
The court finds there were reasonable grounds for
false or not." Smith v. Klein (1986), 23 Ohio App.3d 146,23 Ohio B. 387, 492 N.E.2d 852, citing Hahn, supra.
It is ordered that a special mandate be sent to said
[*P34] In the case at bar, Outlaw failed to present
court to carry this judgment into execution.
any evidence demonstrating that appellees' actions weredone with malice, ill will, hatred, revenge, or wanton and
A certified copy of this entry shall constitute the
reckless disregard for the truth. In fact, the evidence
mandate pursuant to Rule 27 of the Rules of Appellate
demonstrates that appellees' actions were conducted with
Outlaw's best interests in mind. Appellees' actions weredone with the good faith intention of preventing Outlaw
from ingesting non-approved and non-recommended painmedication. Not only did appellees act without malice,
they acted under the added protection of operating within
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This article appeared in The South African Journal of Natural Medicine 2008, Issue 39, pp 72 – 80. Treating candidiasis HEIDI DU PREEZ, PR SCI NAT , is a professional natural scientist with a Masters degree in Food Science. She is currently specialising in Nutritional Medicine. Heidi consults for both the food and health industries. She began specialising in natural health while liv