[Cite as Rosenshine v. Med. College Hosp., 2012-Ohio-6366.]

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us

DAWN ROSENSHINE, Exec. 

 Plaintiff 

 v. 

MEDICAL COLLEGE HOSPITALS 

 Defendant 

Case No. 1998-04701 

Magistrate Holly True Shaver 

DECISION OF THE MAGISTRATE

{¶ 1} On June 26, 2012, the Tenth District Court of Appeals issued a decision 

that reversed this court’s prior judgment in favor of defendant, rendered judgment in 

favor of plaintiff as to the issue of liability, and remanded the matter to this court for 

further proceedings on the issue of damages. On November 1, 2012, this court heard 

oral argument and accepted additional evidence with regard to the issue of damages. 

{¶ 2} On May 30, 1995, Theresa Dougherty was admitted to defendant’s hospital 

for a cardiac catheterization.1

 One of the procedures that Theresa underwent during 

that visit was a chest x-ray to exclude the possibility of myocardial infarction. The x-ray 

was taken and a report was prepared by a radiologist, who noted a “right upper lung 

mass, measuring 2.5 centimeters.” On June 2, 1995, Theresa was discharged from 

defendant’s hospital, but the discharge summary did not refer to the x-ray, and no one 

informed Theresa of the results. In November 1996, Theresa was diagnosed with 

 1

Plaintiff’s decedent, Theresa Dougherty, shall be referred to as Theresa throughout this decision. 

Plaintiff, Dawn Rosenshine, is Theresa’s daughter and the executor of Theresa’s estate. 
Case No. 1998-04701 - 2 - DECISION

cancer in both of her lungs, which had spread to her brain and was inoperable. Theresa 

died on November 3, 1997. 

{¶ 3} In its decision, the Tenth District Court of Appeals held that it was against 

the manifest weight of the evidence for this court to conclude that the failure to diagnose 

the mass in Theresa’s right lung was not the proximate cause of her death. In so 

holding, the Court of Appeals found most persuasive Dr. Robert J. Steele’s opinion that 

Theresa’s “prognosis in May 1995, had she been diagnosed and treated, was 70 

percent survival * * *.” Rosenshine v. Medical College Hosps., 10th Dist. No. 11AP-374, 

2012-Ohio-2864, ¶ 18. Accordingly, the court makes the following determination. 

{¶ 4} Plaintiff’s claims sound in survivorship and wrongful death on behalf of the 

heirs and next of kin of Theresa. Pursuant to R.C. 2125.02(A)(2), the court “may award 

the reasonable funeral and burial expenses incurred as a result of the wrongful death.” 

Plaintiff’s Exhibits 5 and 6 show that plaintiff incurred funeral and burial expenses for 

Theresa in the amounts of $6,254.38 and $4,464.19, respectively, for a total of 

$10,718.57, which shall be awarded. The parties agree that aside from the funeral and 

burial expenses, there is no claim for economic damages in this matter. 

{¶ 5} Theresa was born on March 3, 1939, and was 57 years old when she died. 

Theresa is survived by her three adult children, Dawn Rosenshine, Robert Dougherty, 

Jr., and Vincent Dougherty, and Vincent’s daughter, Alyssa, who was Theresa’s only 

grandchild at the time of her death. Theresa’s children provided individual written 

statements regarding how their mother’s death has affected them, and Dawn’s 

deposition was submitted as well. (Plaintiff’s Exhibits 2-4, 21.) 

{¶ 6} Dawn testified that Theresa was diagnosed with lung cancer two weeks 

after Robert Dougherty, Sr. (Theresa’s husband) died of colon cancer in November 

1996. Even though Theresa’s cancer was inoperable when she was made aware of its 

diagnosis, Theresa chose to undergo radiation therapy with the hope that it would 

extend her life. After she concluded radiation treatments in Ohio, Theresa went to live 
Case No. 1998-04701 - 3 - DECISION

in New York City with Dawn and Dawn’s husband. Theresa died in Dawn’s home, 

under hospice care. The evidence shows that Theresa was not informed of the 

presence of a tumor in her lung for approximately one year, and for approximately 

another year, Theresa lived with the knowledge that her medical treatment had been 

delayed, resulting in inoperable cancer that had spread to her brain. According to 

Dawn, Theresa initiated this lawsuit because she was very upset that she was not 

informed about the tumor when it was first detected on the x-ray, and she did not want 

the same result to happen to another patient. Theresa urged Dawn to pursue the claim 

as executor. 

{¶ 7} Dawn testified that her mother was in considerable pain during the last few 

months of her life, and that she was prescribed morphine, along with other pain 

medication from the summer of 1997 until her death. Dawn sought counseling services 

from her rabbi and a priest, and she attended a support group to cope with the grief she 

sustained as a result of her mother’s death. 

{¶ 8} Robert Dougherty, Jr., was living in Connecticut when Theresa’s cancer 

was diagnosed and he visited her frequently during the time that she lived in New York 

City. Vincent was living in Ohio when Theresa was diagnosed with cancer. Prior to her 

diagnosis, both Theresa and her husband had been primary care givers to Vincent’s 

daughter Alyssa, who was born in December 1990. From birth, Alyssa lived in two 

places: with Theresa and her husband approximately four days per week, and with her 

other grandmother for the other three days. However, in October 1996, Alyssa went to 

live with her other grandmother because Theresa was caring for her dying husband. 

Thereafter, Alyssa continued to visit Theresa but did not return to live with her. At the 

time of Theresa’s death, Dawn, Robert Jr., and Vincent were all adult children, and 

Alyssa was almost 7 years old. 

{¶ 9} Defendant argues that Theresa suffered from multiple health problems 

aside from the undiagnosed tumor, which would have significantly shortened her life 
Case No. 1998-04701 - 4 - DECISION

expectancy. Specifically, Theresa had a history of cardiac problems and was a life-long 

cigarette smoker. Defendant also seeks a determination from this court that Theresa 

was comparatively negligent in that she began to smoke cigarettes when she was 13 

years old and continued to smoke until her death, despite being aware of the risk of 

death from smoking. The court finds that inasmuch as the Court of Appeals rendered 

judgment in favor of plaintiff without consideration of defendant’s comparative 

negligence argument, this court is confined to the issue of damages.2 However, 

Theresa’s state of health is a factor that this court shall consider in awarding damages. 

Pursuant to R.C. 2125.02(A)(3)(b)(i), the “court may consider all factors existing at the 

time of the decedent’s death that are relevant to a determination of the damages 

suffered by reason of the wrongful death.” For example, “it is proper to take into 

consideration such factors, varying in individual cases, as the victim’s life expectancy, 

character, health, habits, talents, prospects, * * * needs of and contributions to [her 

beneficiaries] and current returns on investments.” Sutfin v. Burton, 91 Ohio App. 177, 

193, (8th Dist. No.1951) citing 16 American Jurisprudence, 127, 160, “Death,” Sections 

190 to 242. 

{¶ 10} The parties have submitted the depositions of Joel Kahn, M.D., Elloise 

Gard, M.D., and Robert Steele M.D., to be considered regarding Theresa’s estimated 

life expectancy. Elloise Gard, M.D., board-certified in internal medicine, first treated 

Theresa in December 1994. With regard to Theresa’s family medical history, Dr. Gard 

testified that Theresa’s mother had breast cancer, Theresa’s father suffered a heart 

attack at age 48, and two of Theresa’s sisters died of cancer. Theresa smoked one 

pack of cigarettes per day for approximately 40 years. Dr. Gard advised Theresa to 

stop smoking because smoking is known both to worsen heart disease and to cause 

 2

The court notes that defendant raised the issue of the comparative negligence of smoking in its 

March 29, 2010 trial brief. 
Case No. 1998-04701 - 5 - DECISION

cancer. Dr. Gard was also concerned about Theresa’s cholesterol level because it was 

high for a person with known heart disease. 

{¶ 11} Joel Kahn, M.D., a cardiologist, testified that at the age of 46, Theresa was 

diagnosed with severe heart disease that required a triple bypass surgery that was 

performed in 1985. Ten years later, Theresa was diagnosed with progressive angina. 

The catheterization that she was admitted to defendant’s hospital for in May 1995 

showed that she had lost one of her three bypass grafts. Based solely upon Theresa’s 

cardiology issues, Dr. Kahn opined that her life expectancy would not exceed 10 years 

past the date of her May 30, 1995 hospitalization. Dr. Kahn noted that a normal life 

expectancy for a 56-year old woman would be an additional 20 to 25 years. 

{¶ 12} Robert Steele M.D., board-certified in internal medicine and medical 

oncology, opined that in May 1995, the lesion in Theresa’s right lung was a stage one 

cancer, but that the nodes were negative and that there was no metastatic disease at 

that time. Dr. Steele opined that when x-rays were taken of Theresa’s lungs in 1996, 

she had cancerous tumors in both lungs and in her brain. Dr. Steele opined that the 2.5 

centimeter mass in her right lung was most likely a different type of cancer from the 

lesion in her left lung, and that it was more likely than not that Theresa suffered from 

multiple, primary cancers rather than having suffered metastasis of the cancer in the 

right lung to the left lung. 

{¶ 13} Dr. Steele testified that if the cancer in Theresa’s right lung had been 

timely diagnosed, she would have undergone a wedge resection of her right lung, and 

she probably would not have undergone chemotherapy or radiation at that time. Dr. 

Steele further testified that in 1996, Theresa would have most likely undergone a 

second similar surgery to remove the cancer from her left lung. 

{¶ 14} In the survival action, plaintiff seeks compensation for Theresa’s conscious 

pain and suffering prior to her death. A survival action brought to recover for a 

decedent’s own injuries before her death is independent from a wrongful death action 
Case No. 1998-04701 - 6 - DECISION

seeking damages for the injuries that the decedent’s beneficiaries suffer as a result of 

the death, even though the same nominal party prosecutes both actions. Peters v. 

Columbus Steel Castings Co., 115 Ohio St.3d 134, 2007-Ohio-4787, ¶ 7. 

{¶ 15} Defendant argues that even if the tumor in Theresa’s right lung had been 

disclosed to her timely, she would have undergone a wedge resection of her right lung, 

a painful procedure. However, Dr. Steele testified that if Theresa had undergone a 

wedge resection of her right lung in June 1995, she may not have had to undergo 

radiation therapy at that time. The court finds that Theresa endured pain and suffering 

as a result of radiation therapy in 1996, and that her pain and suffering should not be 

lessened despite the fact that she did not also undergo a wedge resection. The court 

finds that Theresa suffered conscious pain and suffering as a result of the delayed 

diagnosis of her cancer: specifically, Theresa sustained physical pain and suffering as a 

result of undergoing radiation therapy, and severe mental anguish as a result of 

knowing that her diagnosis of cancer in her right lung was delayed for approximately 

one year. Based upon the conscious pain and suffering and severe mental anguish that 

Theresa sustained prior to her death, $100,000 is recommended for the survivorship 

claim. 

{¶ 16} Turning to the damages associated with the wrongful death claim, the 

applicable provisions of R.C. 2125.02(B) state that “[c]ompensatory damages may be 

awarded in a civil action for wrongful death and may include damages for the following: 

{¶ 17} “* * * 

{¶ 18} “(3) Loss of the society of the decedent, including loss of companionship, 

consortium, care, assistance, protection, advice, guidance, counsel, instruction, training, 

and education, suffered by the surviving spouse, dependent children, parents, or next of 

kin of the decedent; 

{¶ 19} “ * * * 
Case No. 1998-04701 - 7 - DECISION

{¶ 20} “(5) The mental anguish incurred by the surviving spouse, dependent 

children, parents, or next of kin of the decedent.” 

{¶ 21} Based upon the evidence submitted with regard to Theresa’s family history 

of cancer and heart disease, and her own significant heart disease, the court finds 

persuasive Dr. Kahn’s opinion that based solely upon Theresa’s cardiac issues, her life 

expectancy would have been no more than ten years past May 1995. In addition, in 

light of Dr. Steele’s testimony, the court finds that it is more likely than not that the 

secondary cancer that was present in Theresa’s left lung in 1996 would have also 

adversely affected her life expectancy. 

{¶ 22} Pursuant to R.C. 2125.02(A)(2), the court “may award damages authorized 

by division (B) of this section, as it determines are proportioned to the injury and loss 

resulting to the beneficiaries described in division (A)(1) of this section by reason of the 

wrongful death.” R.C. 2125.01(A)(1) states that “a civil action for wrongful death shall 

be brought in the name of the personal representative of the decedent for the exclusive 

benefit of the surviving spouse, the children, and the parents of the decedent, all of 

whom are rebuttably presumed to have suffered damages by reason of the wrongful 

death, and for the exclusive benefit of the other next of kin of the decedent.” Pursuant 

to R.C. 2125.02, other next of kin, such as grandchildren, although not presumed to 

have sustained damages, may recover damages for mental anguish and loss of society 

upon proper proof thereof, even though there is a surviving parent, spouse, or children. 

Senig v. Nationwide Mutual Insurance Co., 76 Ohio App.3d 565, 574 (10th Dist.1992). 

{¶ 23} Based upon the evidence presented, the court finds that Alyssa had a 

close relationship with her grandmother, Theresa, as Theresa was a primary care giver 

to her throughout most of her early childhood. Therefore, the court finds that plaintiff 

has proven by a preponderance of the evidence, that Alyssa should recover damages 

as a result of Theresa’s wrongful death. Based upon the specific facts of this case, 

considering both Theresa’s close relationship with her children and Theresa’s level of 
Case No. 1998-04701 - 8 - DECISION

involvement in raising her granddaughter Alyssa, balanced against her shortened life 

expectancy independent of defendant’s negligence, the court recommends awards of 

non-economic damages for loss of society and mental anguish as follows: to plaintiff 

Dawn Rosenshine, $30,000; to Robert Dougherty, Jr., $30,000; to Vincent Dougherty, 

$30,000; and to Alyssa Dougherty, $10,000. 

{¶ 24} In summary, judgment is recommended in the amount of $210,743.57, 

which includes the $25 filing fee. 

{¶ 25} R.C. 3345.40(B)(2) provides that any award against a state university or 

college shall be reduced by the amount of “benefits” a plaintiff receives or is entitled to 

receive “for injuries or loss allegedly incurred from a policy or policies of insurance or 

any other source * * *.” It is undisputed that plaintiff received a settlement of $25,000 as 

a result of litigation in the connected action, and $20,000 from a life insurance policy. 

Defendant argues that any award of damages should be reduced by both of these 

amounts. (Exhibits D and C to Defendant’s Trial Brief.) However, the Tenth District 

Court of Appeals has determined that the word “benefits,” as it appears in R.C. 

3345.40(B)(2), refers to “‘financial assistance received in time of sickness, disability, 

unemployment, etc., either from insurance or public programs, such as social security.’” 

See Aubry v. Univ. of Toledo Med. Ctr., 10th Dist. No. 11AP-509, 2012-Ohio-1313, ¶ 

22, quoting Black’s Law Dictionary 158 (6th Ed. 1990). In the instant case, inasmuch as 

plaintiff’s settlement in the connected action does not constitute a benefit under the 

definition set forth in Aubry, the court concludes that the statute does not operate to 

reduce plaintiff’s award by the amount of that settlement. Likewise, R.C. 3345.40(B)(2) 

further states: “Nothing in this division affects or shall be construed to limit the rights of a 

beneficiary under a life insurance policy or the rights of sureties under fidelity or surety 

bonds.” Therefore, the court concludes that the plain language of R.C. 3345.40(B)(2) 

prohibits this court from reducing plaintiff’s award by the amount of life insurance 

proceeds that plaintiff received. Thus, the court finds that neither the settlement 
Case No. 1998-04701 - 9 - DECISION

proceeds nor the life insurance proceeds constitute “benefits” to be deducted from 

plaintiff’s award of damages. 

{¶ 26} The Lucas County Probate Court apportioned the settlement proceeds 

from the connected action equally among Theresa’s adult children. (Exhibit D to 

Defendant’s Trial Brief.) However, inasmuch as the court has found that plaintiff has 

proven that Alyssa is entitled to a claim of damages, this matter must be returned to the 

probate court for an equitable distribution of damages to the beneficiaries according to 

their respective injury or loss. Accordingly, it is recommended that final judgment shall 

be entered in favor of plaintiff after the probate court has adjusted the share that each 

beneficiary is to receive. 

{¶ 27} A party may file written objections to the magistrate’s decision within 14 

days of the filing of the decision, whether or not the court has adopted the decision 

during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files 

objections, any other party may also file objections not later than ten days after the first 

objections are filed. A party shall not assign as error on appeal the court’s adoption of 

any factual finding or legal conclusion, whether or not specifically designated as a 

finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely 

and specifically objects to that factual finding or legal conclusion within 14 days of the 

filing of the decision, as required by Civ.R. 53(D)(3)(b). 

 _____________________________________ 

 HOLLY TRUE SHAVER 

 Magistrate 

cc: 

 

Anne B. Strait

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Mark F. Vitou 

111 West Dudley 

Maumee, Ohio 43537-2140 
Case No. 1998-04701 - 10 - DECISION

002

Filed December 21, 2012 

To S.C. Reporter March 22, 2013 and August 22, 2013