[Cite as Loudin v. Radiology & Imaging Servs., Inc., 128 Ohio St.3d 555, 2011-Ohio-1817.] 

LOUDIN, APPELLEE, v. RADIOLOGY & IMAGING SERVICES, INC., ET AL.,

APPELLANTS. 

[Cite as Loudin v. Radiology & Imaging Servs., Inc., 

128 Ohio St.3d 555, 2011-Ohio-1817.] 

Damages for emotional distress stemming directly from a physical injury are to 

be considered in a traditional medical-malpractice claim — Emotional 

distress stemming directly from a physical injury is not a basis for an 

independent cause of action for the negligent infliction of emotional 

distress.

(No. 2010-0297 — Submitted January 18, 2011 — Decided April 20, 2011.) 

APPEAL from the Court of Appeals for Summit County, No. 24783, 

185 Ohio App.3d 438, 2009-Ohio-6947. 

__________________ 

SYLLABUS OF THE COURT

1. Damages for emotional distress stemming directly from a physical injury are to 

be considered in a traditional medical-malpractice claim. 

2. Emotional distress stemming directly from a physical injury is not a basis for 

an independent cause of action for the negligent infliction of emotional 

distress. 

__________________ 

MCGEE BROWN, J. 

{¶ 1} This is an appeal from a judgment entered by the Ninth District 

Court of Appeals finding that Lonna Loudin presented genuine issues of material 

fact that would allow her medical-malpractice claims to survive summary 

judgment. We affirm the judgment of the court of appeals and hold that damages 

for emotional distress stemming directly from a physical injury are to be 
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considered in a traditional medical-malpractice claim and that emotional distress 

stemming directly from a physical injury is not the basis for an independent cause 

of action for the negligent infliction of emotional distress. 

Facts and Procedural History 

{¶ 2} From 1997 through 2004, the appellee, Loudin, went to Reflections 

Breast Health Center (“Reflections”), owned and operated by Radiology & 

Imaging Services, Inc. (“Radiology”), to receive yearly mammograms. All of 

Loudin’s mammograms during that time were interpreted as normal. This 

included the mammogram conducted in 2003, which was reviewed by Dr. 

Richard Patterson in April of that year. 

{¶ 3} Loudin was persistent in monitoring herself for cancer because her 

husband had died of lung cancer in 1981 and she wanted to ensure early detection 

and treatment if she had cancer so that the same fate would not befall her. In the 

spring of 2004, Loudin detected a lump in her left breast during self-examination 

and was referred to Reflections for a diagnostic mammogram. The films from 

Loudin’s May 2004 mammogram revealed a mass that was highly suggestive of 

malignancy. According to expert witness testimony, the mass had grown from 

one centimeter to approximately two centimeters between 2003 and 2004. Dr. 

David B. Dellinger conducted a biopsy of the mass, and the pathology report 

indicated that the mass was cancerous. With no additional factors present, a twocentimeter cancerous mass constitutes Stage I cancer. Upon review of the 

pathology report of the biopsy, Dr. Joseph Koenig, Loudin’s oncologist, informed 

Loudin that her treatment plan would probably entail lymph-node dissection, a 

lumpectomy, radiation therapy, and hormone therapy, but would most likely not 

include chemotherapy if her lymph nodes tested negative for cancer. Dellinger 

and Koenig recommended the dissection of nearby lymph nodes in order to 

determine whether Loudin’s cancer had spread to other areas. Two of the eight 

lymph nodes dissected tested positive for cancer. This additional factor advanced 
January Term, 2011 

3

Loudin’s diagnosis to Stage IIA cancer. Loudin underwent a lumpectomy, eight 

rounds of chemotherapy, and six weeks of radiation therapy and began hormone 

therapy. At the time of her October 2005 deposition, Loudin’s cancer had not 

recurred. 

{¶ 4} Loudin initiated this action by filing a complaint asserting medicalnegligence claims against the defendants-appellants, Radiology & Imaging 

Services, Inc., Radiology & Imaging Services, Inc., d.b.a. Reflections Breast 

Health Center, and Dr. Richard D. Patterson.1

 In her first claim for relief, Loudin 

alleged that Radiology, as the employer and principal to its employee physicians, 

including Patterson, had “caused and/or contributed to her injury.” In her second 

claim for relief, Loudin alleged that Patterson had breached the required standards 

of care when conducting Loudin’s regular screenings for breast cancer. In her 

third claim for relief, Loudin alleged that Radiology had negligently failed to 

supervise Patterson. Loudin alleged injuries in the form of a delayed diagnosis of 

cancer, the progression of untreated carcinoma to Stage IIA breast cancer, the 

“loss of chance for a better outcome,” emotional distress, acute physical, mental, 

and emotional pain and suffering, and a loss of the ability to enjoy a normal life. 

{¶ 5} In her claims for medical negligence, respondeat superior, and 

negligent supervision, Loudin alleged that the appellants had breached the 

required standard of care by failing to detect and commence treatment for her 

cancer upon examination of her 2003 mammography films, which revealed a 

visible one-centimeter mass. Upon being granted leave, Loudin amended her 

complaint on March 5, 2009, to further allege that the appellants’ negligence had 

led to the enlargement of her tumor, metastasis to her lymph nodes, and emotional 

distress from the fear of an increased chance of recurrence of cancer. 

 

1. Loudin first filed a complaint on April 14, 2005, but voluntarily dismissed the matter without 

prejudice on March 16, 2007. On March 14, 2008, she refiled her complaint as permitted by R.C. 

2305.19, which allowed her complaint to stay within the one-year statute of limitations applicable 

to medical claims under R.C. 2305.113(A). 
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{¶ 6} Loudin submitted the deposition testimony of radiologist Dr. Jules 

H. Sumkin, who stated that the failure to detect her cancer in 2003 was a 

deviation from the applicable standard of care and that Loudin’s tumor had 

increased from one centimeter to two centimeters from 2003 to 2004. Loudin also 

submitted the deposition testimony of an additional expert witness, Dr. Ronald 

Citron, who stated that to a reasonable degree of medical certainty, the cancer 

would not have been present in Loudin’s lymph nodes had she been correctly 

diagnosed in 2003. With lymph nodes negative for cancer and a one-centimeter 

cancerous tumor, Loudin still would have undergone a lumpectomy, radiation 

therapy, and hormone therapy. However, with lymph nodes testing positive for 

cancer, she also had to undergo chemotherapy. Citron testified that Loudin’s tenyear-survival prognosis would have been 85 percent had detection and treatment 

occurred in 2003 and that her prognosis from detection and treatment in 2004 was 

82 percent. 

{¶ 7} Ultimately, the appellants filed a motion to dismiss Loudin’s 

amended complaint for failure to state a claim for which relief could be granted. 

The appellants characterized Loudin’s complaint as seeking recovery solely for 

the negligent infliction of emotional distress. In their response to Loudin’s 

memorandum opposing their motion, the appellants also argued that Loudin had 

not established her medical-negligence claim. 

{¶ 8} Because both parties’ arguments relied on facts outside the 

pleadings, the trial court converted the appellants’ motion to dismiss into a motion 

for summary judgment. In its decision, the trial court noted that Loudin had 

included damages for emotional distress in her medical-malpractice claim, but 

had not pleaded a separate cause of action for the negligent infliction of emotional 

distress. The trial court nonetheless chose to separately address Loudin’s request 

for damages for emotional distress using the analysis applied to claims for 

negligent infliction of emotional distress. The trial court concluded that Loudin 
January Term, 2011 

5

was precluded from making a claim for the negligent infliction of emotional 

distress because such a claim would require the finder of fact to determine what 

portion of Loudin’s emotional distress was attributable to her initial diagnosis of 

cancer and what portion was attributable to “her understanding that the untreated 

cancer had metastasized, thereby changing her diagnosis for the worse.” And this 

type of determination, the court held, was “precisely the type of issue that courts 

have attempted to guard against in their analyses of these types of claims.” The 

trial court also concluded that Loudin’s medical-negligence claim must fail 

because “growth and metastasis of cancer are not compensable physical injuries 

in Ohio.” The trial court granted summary judgment in favor of the appellants 

and against all claims for relief in Loudin’s complaint. 

{¶ 9} The Ninth District Court of Appeals reversed, holding that the 

growth and metastasis of cancer are compensable physical injuries and that 

Loudin’s medical-negligence claim should have survived summary judgment. 

The appellate court pointed out that Loudin had not pleaded a separate cause of 

action for the negligent infliction of emotional distress. However, because neither 

party claimed that the trial court should not have addressed the issue of negligent 

infliction of emotional distress, the appellate court went on to analyze that issue 

on appeal. After a discussion of the history of claims for the negligent infliction 

of emotional distress, the appellate court focused on this court’s explanation in 

Binns v. Fredendall (1987), 32 Ohio St.3d 244, 513 N.E.2d 278, that a negligence 

claim involving a physical injury invokes the traditional rules of recovery, which 

consider emotional distress as a part of damages. The Ninth District held that 

Loudin’s fear of recurrence of cancer was a type of emotional injury for which 

Loudin could seek recovery. 

{¶ 10} The Ninth District concluded that the trial court’s analysis of 

negligent infliction of emotional distress was not correct and ruled that Loudin’s 

claims for medical malpractice, and her related claims for respondeat superior and 
SUPREME COURT OF OHIO

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negligent supervision, should have survived summary judgment. The Ninth 

District affirmed the trial court’s decision regarding certain evidentiary issues, 

reversed the remainder of the decision, and remanded the cause to the trial court 

for further proceedings. 

{¶ 11} The cause is before this court upon the acceptance of a 

discretionary appeal. 

Analysis 

Medical Negligence: Physical Injury 

{¶ 12} The issue before this court is whether the evidence submitted by 

Loudin in support of her claims for medical negligence and resulting damages 

was sufficient to defeat the appellants’ motion for summary judgment. 

{¶ 13} As with negligence claims in general, liability based on the alleged 

negligence of a medical professional requires proof of (1) a duty running from the 

defendant to the plaintiff, (2) the defendant’s breach of that duty, (3) damages 

sustained by the plaintiff, and (4) proximate causation of the damages by the 

defendant’s breach of duty. Schirmer v. Mt. Auburn Obstetrics & Gynecologic 

Assoc., Inc., 108 Ohio St.3d 494, 2006-Ohio-942, 844 N.E.2d 1160, at ¶ 17, citing 

Hester v. Dwivedi (2000), 89 Ohio St.3d 575, 578, 733 N.E.2d 1161. 

{¶ 14} A physician who undertakes a physician-patient relationship has 

the duty to exercise reasonable care in diagnosing the patient’s illness and 

prescribing appropriate treatment. Berdyck v. Shinde (1993), 66 Ohio St.3d 573, 

583, 613 N.E.2d 1014; Tracy v. Merrell Dow Pharmaceuticals, Inc. (1991), 58 

Ohio St.3d 147, 150, 569 N.E.2d 875. A medical professional’s failure to detect a 

condition may result in liability if the failure to detect is proven to be a proximate 

cause of a patient’s injury. Berdyck at 584. “Diagnosis must be regarded as 

important as is the treatment to be administered, for faulty diagnosis may result in 

treatment which is not only not correctional and curative, but is positively harmful 

in character.” Willett v. Rowekamp (1938), 134 Ohio St. 285, 289, 12 O.O. 91, 16 
January Term, 2011 

7

N.E.2d 457. Although a medical professional is not a warrantor of a positive 

result or cure, a negligent act or omission that “prolongs [a patient’s] illness, 

increases his suffering, or, in short, makes his condition worse than it would have 

been if due skill and care had been used, would, in a legal sense, constitute 

injury.” Craig v. Chambers (1867), 17 Ohio St. 253, 261, abrogated in part on 

other grounds as recognized in Cooper v. Sisters of Charity of Cincinnati, Inc. 

(1971), 27 Ohio St.2d 242, 250, 56 O.O.2d 146, 272 N.E.2d 97. 

{¶ 15} The appellants concede that Loudin adequately established duty 

and breach for purposes of summary judgment by presenting expert testimony 

that the appellants’ failure to detect her cancer in 2003 was a deviation from the 

applicable standard of care. They focus their argument on the element of 

damages and contend that Loudin provided no evidence that the appellants’ 

failure to timely diagnose her cancer proximately caused her any physical injury. 

They agree with the trial court’s conclusion that “growth and metastasis of cancer 

are not compensable physical injuries in Ohio,” and they point out that Loudin 

was not cognizant of the growth of her tumor from 2003 to 2004 and assert that 

the course of treatment for her cancer would have been no less intensive had it 

been detected in 2003. These arguments are not well taken. 

{¶ 16} First, the appellants’ contention that a plaintiff must physically 

perceive the cancer’s progression in order for it to be a compensable injury is 

unfounded. The law recognizes that injuries in medical-malpractice cases may go 

undetected for a long time, as evidenced by the tolling of the statute of limitations 

for medical-negligence claims until the plaintiff is or should be aware of the 

injury. R.C. 2305.113(D). There is no requirement in Ohio that a physical injury 

in a traditional negligence case cause pain or otherwise manifest itself so that the 

plaintiff is aware of its presence and deleterious effect at all times. 

{¶ 17} Second, Loudin presented expert testimony that she would not 

have undergone an identical course of treatment had the cancer been detected in 
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2003. Loudin presented expert testimony stating that chemotherapy is not 

administered when the lymph nodes test negative for cancer. Loudin presented 

further expert testimony that her lymph nodes would have been negative for 

cancer in 2003. Thus, according to her experts, she would not have had to 

undergo eight rounds of chemotherapy but for the appellants’ failure to timely 

diagnose her cancer. 

{¶ 18} Third, the growth and metastasis of cancer are cognizable physical 

injuries. Loudin presented expert testimony that cancer is a progressive disease 

and that the longer it is able to progress, the more it is able to compromise 

additional areas of the body and increase the number of cancer cells in the body. 

Whether the cancer is left undiagnosed to advance to the point of necessitating the 

removal of an organ, a limb, a breast, or a larger lump, the destruction of 

additional healthy cells and increased number of cancer cells are physical injuries, 

not mere physical changes.2

 

{¶ 19} Although tumor enlargement and involvement of the lymph nodes 

might not require radically different treatment, a plaintiff need only show some 

slight injury for the question of damages to go to the jury. In Schultz v. Barberton 

Glass Co. (1983), 4 Ohio St.3d 131, 134, 4 OBR 376, 447 N.E.2d 109, fn. 3, 

while comparing negligent-infliction-of-emotional-distress claims with personalinjury claims, this court explained: 

{¶ 20} “Courts have allowed recovery for emotional distress accompanied 

by the slightest injury. ‘When there is evidence of any injury, no matter how 

 

2. See Tomcik v. Ohio Dept. of Rehab. & Corr. (1991), 62 Ohio Misc.2d 324, 330-331, 598 

N.E.2d 900 (growth of breast cancer, requiring a mastectomy instead of a lumpectomy, constitutes 

injury); Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 641, 647, 635 N.E.2d 331 

(facts of case show that defendants had been found negligent for failing to timely diagnose and 

treat cancer before it had metastasized, leading to amputation and death). See also Alexander v. 

Scheid (Ind.2000), 726 N.E.2d 272, 284 (cancer growth and destruction of healthy tissue 

constitute injury); Evers v. Dollinger (N.J.1984), 95 N.J. 399, 406, 471 A.2d 405 (growth of tumor 

constitutes physical injury); Cloys v. Turbin (Tex.Civ.App.1980), 608 S.W.2d 697, 701 (any 

growth of a cancerous tumor constitutes physical injury). 
January Term, 2011 

9

slight, the mental anguish suffered by plaintiff becomes an important element in 

estimating the damages sustained.’ Clark Restaurant Co. v. Rau (1931), 41 Ohio 

App. 23, 26, 179 N.E. 196 [31 O.O. 576]. In Wolfe v. Great A & P Tea Co.

(1944), 143 Ohio St. 643, 56 N.E.2d 230 [28 O.O. 520], the plaintiff was allowed 

to recover for mental suffering, after eating food contaminated with worms, if any 

physical injury was proven. See also Ward Baking Co. v. Trizzino (1928), 27 

Ohio App. 475, 161 N.E. 557.” 

{¶ 21} When we view the evidence in a light most favorable to Loudin, 

we conclude that she has raised a genuine issue of material fact as to whether she 

would have sustained physical injuries greater than those that existed in 2003 but 

for the appellants’ negligence. Specifically, but for the failure to timely diagnose 

Loudin’s cancer, would her tumor have grown from one to two centimeters, 

would her cancer have spread to her lymph nodes and advanced from Stage I to 

Stage IIA, and would she have had to undergo chemotherapy? The Ninth District 

correctly reversed the trial court’s summary-judgment decision on Loudin’s 

medical-negligence claim. 

Emotional-Distress Damages 

and the Negligent Infliction of Emotional Distress 

{¶ 22} Most, if not all, of the appellants’ argument in this appeal is 

predicated upon the assumption that Loudin did not present evidence indicating 

that she sustained physical injuries as a result of the appellants’ negligence. 

Based on this assumption, the appellants assert that Loudin’s complaint raised a 

cause of action solely for the negligent infliction of emotional distress and that the 

Ninth District impermissibly created a new subspecies of the cause of action in 

order to allow Loudin’s complaint to survive summary judgment. Loudin 

presented a genuine issue of material fact as to whether she sustained physical 

injuries as a result of the appellants’ negligence, and her complaint did not raise a 
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separate cause of action for the negligent infliction of emotional distress; 

therefore appellants’ assertion is without merit. 

{¶ 23} We hold that the inclusion of damages for emotional distress in a 

complaint alleging negligence does not automatically transform the claim into one 

alleging the negligent infliction of emotional distress, nor does it automatically 

create a cause of action separate and distinct from the negligence claim. 

{¶ 24} We conclude that Loudin included a claim for damages for 

emotional distress within the context of her medical-negligence claim and that she 

did not plead a separate cause of action for the negligent infliction of emotional 

distress. Thus, there was no negligent-infliction-of-emotional-distress claim for 

either the trial court or the appellate court to accept or reject, and their discussions 

of such a claim were unnecessary. 

Conclusion 

{¶ 25} Viewing the evidence presented to the trial court in a light most 

favorable to Loudin, we hold that genuine issues of material fact exist as to 

whether the appellants’ delayed diagnosis deviated from the required standard of 

care, proximately causing physical and emotional injuries. Therefore, we affirm 

the judgment of the court of appeals and remand the matter to the trial court for 

further proceedings. 3

Judgment affirmed. 

 O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, LANZINGER, and 

CUPP, JJ., concur. 

 O’DONNELL, J., concurs separately. 

__________________ 

O’DONNELL, J., concurring. 

 

3

 The validity of Loudin’s respondeat superior and negligent-supervision claims, as well as the 

trial court’s evidentiary ruling, is not before this court. 
January Term, 2011 

11

{¶ 26} I concur in the majority’s decision that emotional distress resulting 

from a physical injury caused by an act of medical negligence is compensable but 

does not give rise to an independent cause of action on the theory of a separate 

tort. However, I write separately to emphasize that our holding today does not 

represent a departure from the current state of the law regarding the recovery of 

damages for emotional distress. 

{¶ 27} Recovery for emotional distress has evolved over the past century. 

In Miller v. Baltimore & Ohio S.W. RR. Co. (1908), 78 Ohio St. 309, 85 N.E. 499, 

paragraph three of the syllabus, this court held that “[n]o liability exists for acts of 

negligence causing mere fright or shock, unaccompanied by contemporaneous 

physical injury, even though subsequent illness results, where the negligent acts 

complained of, are neither willful nor malicious.” 

{¶ 28} However, in Schultz v. Barberton Glass Co. (1983), 4 Ohio St.3d 

131, 4 OBR 376, 447 N.E.2d 109, this court overruled the “impact rule” set forth 

in Miller, holding that “[a] cause of action may be stated for the negligent 

infliction of serious emotional distress without a contemporaneous physical 

injury.” 

{¶ 29} We reinforced our holding in Schultz in Paugh v. Hanks (1983), 6 

Ohio St.3d 72, 6 OBR 114, 451 N.E.2d 759, holding that “[a] cause of action may 

be stated for the negligent infliction of serious emotional distress without the 

manifestation of a resulting physical injury. Proof of a resulting physical injury is 

admissible as evidence of the degree of emotional distress suffered.” Id. at 

paragraph two of the syllabus. Paugh described serious emotional distress as an 

“emotional injury which is both severe and debilitating” and “may be found 

where a reasonable person, normally constituted, would be unable to cope 

adequately with the mental distress engendered by the circumstances of the case.” 

Id. at paragraph 3a of the syllabus. 
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12 

{¶ 30} Nonetheless, in Binns v. Fredendall (1987), 32 Ohio St.3d 244, 

513 N.E.2d 278, we distinguished Paugh, holding that “[n]egligently inflicted 

emotional and psychiatric injury sustained by a plaintiff who also suffers 

contemporaneous physical injury in a motor vehicle accident need not be severe 

and debilitating to be compensable.” Id. at paragraph one of the syllabus. Thus, 

Binns reaffirmed our prior understanding that “[r]ecovery for negligently inflicted 

emotional and psychiatric injuries accompanied by contemporaneous physical 

injury may include damages for mental anguish, emotional distress, anxiety, grief 

or loss of enjoyment of life caused by the death or injury of another, provided the 

plaintiff is directly involved and contemporaneously injured in the same motor 

vehicle and accident with the deceased or other injured person.” Id. at paragraph 

three of the syllabus. 

{¶ 31} Accordingly, our case law already establishes that a plaintiff who 

suffers a physical injury may recover for emotional distress, regardless of whether 

the emotional injuries are severe and debilitating. Id. at paragraphs one, two, and 

three of the syllabus. 

{¶ 32} The majority affirms the holding by the court of appeals that a 

delayed diagnosis of cancer can cause an attendant physical injury for which a 

plaintiff may seek recovery for emotional distress as an element of damages. And 

as the majority opinion points out, that holding is supported by authority from 

other jurisdictions. Majority opinion at ¶ 18, fn. 2; see also Boryla v. Pash 

(Colo.1998), 960 P.2d 123; Bond v. Ivanjack (D.C.App.1999), 740 A.2d 968. 

{¶ 33} Accordingly, I concur in the judgment affirming the judgment of 

the court of appeals on the basis that Lonna Loudin has raised a genuine issue of 

fact as to whether she sustained a physical injury as a result of a delayed diagnosis 

of breast cancer. Because this case involves emotional distress stemming from a 

physical injury, Binns controls. Thus, if Loudin proves at trial that appellants 

committed professional negligence that resulted in a physical injury that caused 
January Term, 2011 

13

her emotional distress, then pursuant to Binns, she may recover damages for 

resultant emotional distress. 

{¶ 34} For these reasons, I agree that emotional distress resulting from a 

physical injury caused by medical negligence is compensable but does not give 

rise to an independent cause of action. Thus, I concur in the judgment affirming 

the court of appeals. 

__________________ 

 Scanlon & Elliott, Lawrence J. Scanlon, and Michael J. Elliott, for 

appellee. 

Roetzel & Andress, L.P.A., Douglas G. Leak, and Stacy R. Delgros, for 

appellants. 

Melissa R. Lipchak, urging affirmance on behalf of amicus curiae, Ohio 

Association for Justice. 

______________________