COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59963 JENOUS DOWELL, JR., ET AL. : : : : JOURNAL ENTRY Plaintiff-Appellants : : AND vs. : : OPINION THE CLEVELAND CLINIC FOUNDATION,: ET AL. : : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 9, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. 172,705 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: DANIEL L. KALK Valore, Moss & Kalk 75 Public Square Suite 300 Cleveland, Ohio 44113 For Defendants-Appellees: DAVID L. MARBURGER LORETTA H. GARRISON Baker & Hostetler 3200 National City Center Cleveland, Ohio 44114 - 2 - KRUPANSKY, J.: Plaintiffs-appellants Jenous and Patricia Dowell appeal from a trial court order granting summary judgment in favor of defendants-appellees The Cleveland Clinic Foundation (the "Clinic") and Doctors Martin Schreiber and Khalid Al-Meshari on plaintiffs' complaint for libel and infliction of emotional distress. Plaintiffs filed their complaint against defendants in the trial court July 12, 1989. Plaintiffs alleged that Mr. Dowell was referred to Dr. Al-Meshari for a physical examination October 5, 1988 while under the care of the Clinic Hypertension and Nephrology Department headed by Dr. Schreiber. Plaintiffs alleged they subsequently received a two-page letter addressed to Mr. Dowell in the mail at their home prepared "jointly and severally" by Drs. Schreiber and Al-Meshari on Clinic letterhead summarizing the results of the physical exam. Plaintiffs alleged Mrs. Dowell read the letter to Mr. Dowell over the telephone and that the letter contained the false statement Mr. Dowell "had had gonorrhea in 1985" when in fact he had gonorrhea prior to their marriage in 1959. Plaintiffs claimed that as a direct and proximate result of this statement Mr. Dowell's reputation was damaged and plaintiffs suffered emotional distress and marital discord due to Mrs. Dowell's belief that Mr. Dowell contracted the disease after engaging in extra-marital sexual activity. - 3 - Defendants filed a joint answer denying the substantive allegations of plaintiffs' complaint and raising various affirmative defenses, including that the statement was protected by the doctor-patient common interest privilege. Defendants subsequently filed a joint motion for summary judgment which plaintiffs opposed. The trial court granted defendants' motion for summary judgment and plaintiffs timely appeal raising two assignments of error. Plaintiffs' first assignment of error follows: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING SUMMARY JUDGMENT FOR THE APPELLEES ON APPELLANTS' CLAIM FOR DEFAMATION AND LIBEL. Plaintiffs' first assignment of error lacks merit. Plaintiffs argue their complaint adequately states a cause of action for libel under the circumstances based upon Molien v. Kaiser Foundation Hospitals (Cal. 1980), 616 P.2d 813, and contend the existence of "actual malice" may overcome defendants' asserted doctor-patient common interest privilege defense. Plaintiffs argue the existence of actual malice is a question of fact which may not be resolved by summary judgment. This Court has recently held that plaintiff must demonstrate all the following to establish a claim for libel: (1) The statement must be false; (2) The statement must be defamatory towards the plaintiff; (3) The statement must be in writing; - 4 - (4) The statement must be published; and (5) The defendant must be proven guilty of some degree of fault. Putka v. First Catholic Slovak Union (Aug. 15, 1991), Cuyahoga App. No. 59101, unreported at 15-16 (citing Hahn v. Kotten (1975), 43 Ohio St. 2d 237, 243). The record sub judice demonstrates plaintiffs failed to present a prima facie case of libel satisfying these requirements. Plaintiffs' failed to produce any evidence to support their claim that any of the defendants "published" the allegedly defamatory statement that Mr. Dowell "had had gonorrhea in 1985." The record demonstrates the statement was contained in a sealed letter addressed to Mr. Dowell only. To the extent that if any "publication" was made, Mr. Dowell rather than defendants published the statement by asking his wife to open and read the letter. Accord Oakwood v. Makar (1983), 11 Ohio App. 3d 46, 48 ("Communication to one's spouse is not sufficient publication"). Plaintiffs likewise failed to produce any evidence the statement that Mr. Dowell "had had gonorrhea in 1985" was defamatory in any way toward Mrs. Dowell, so her claim must fail as a matter of law. Summary judgment was independently warranted on the grounds the alleged defamatory statement was conditionally privileged. Alleged defamatory statements made in the context of a doctor-patient relationship are conditionally privileged and are actionable only if plaintiffs present evidence the statement - 5 - was made with "actual malice" or exceeded the scope of the privilege. Putka v. First Catholic Slovak Union, supra; Toth v. Revco D.D.S. Inc. (Nov. 29, 1990), Cuyahoga App. No. 56162, unreported at 5- 7. Plaintiffs' argument in the case sub judice fails to recognize the distinction between merely stating a cause of action for libel and demonstrating the existence of a genuine issue of material fact relating to that claim by submitting evidence to overcome a properly supported motion for summary judgment. To defeat such motion for summary judgment the nonmoving party may not rely upon its pleadings but must produce some evidence to support these issues to the extent the party at trial would bear the burden of proof. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108, syllabus paragraph three (following Celotex v. Catrett (1986), 477 U.S. 317). Accordingly to successfully oppose defendants' motion for summary judgment in the case sub judice, plaintiffs had the burden of producing evidence to demonstrate the challenged statement was made with "actual malice" or beyond the scope of defendants' privilege in addition to the underlying elements of their libel claim. Assume arguendo plaintiffs produced evidence to support their claim of libel, plaintiffs failed to introduce any evidence to establish the statement was made with "actual malice" or that defendants exceeded the scope of the doctor- patient common interest privilege. See, Toth, supra at 5-7. - 6 - The affidavit of Dr. Al-Meshari stated that he personally wrote the letter and made a mistake when writing that Mr. Dowell had gonorrhea in 1985 based upon his review of Mr. Dowell's medical records. Mr. Dowell in fact had gonorrhea in 1959 prior to his marriage to Mrs. Dowell. Plaintiffs' joint affidavit submitted with their brief in opposition merely repeated the allegations of their complaint that the statement was made recklessly and purported to generally incorporate conclusory statements of fact made in the brief. Although Dr. Al-Meshari attempted to correct the mistake, it was not to plaintiffs satisfaction. Defendants' failure to correct the statement to plaintiffs' satisfaction does not establish the statement was originally made with "actual malice." Based upon our review of the record sub judice, and construing the evidence and inferences drawn therefrom in the light most favorable to plaintiffs, we conclude reasonable minds could reach only one conclusion since plaintiffs failed to produce any evidence the statement was (1) "published", (2) defamatory toward plaintiff Patricia Dowell, (3) made with "actual malice," or (4) exceeded the scope of the doctor-patient common interest privilege. Therefore, defendants were entitled to summary judgment as a matter of law. Accordingly, plaintiffs' first assignment of error is overruled. Plaintiffs' second assignment of error follows: - 7 - THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING SUMMARY JUDGMENT FOR THE APPELLEES ON APPELLANTS' CLAIM FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS. Plaintiffs' second assignment of error lacks merit. Plaintiffs contend the trial court improperly granted summary judgment in favor of defendants on plaintiffs' claim for "negligent" infliction of emotional distress based upon the same communication citing Paugh v. Hanks (1983), 6 Ohio St. 3d 72 and Schultz v. Barberton Glass (1983), 4 Ohio St. 3d 131. Plaintiffs' complaint alleges "extreme and outrageous conduct" which is an element of the tort of "intentional" infliction of emotional distress, however, the statements upon which plaintiffs rely to sustain their claim do "not rise to the requirement of extreme or outrageous conduct committed intentionally or recklessly" as a matter of law. See, Lambert v. Garlo (1985), 19 Ohio App. 3d 295, 299. Regardless of how the tort is denominated, Ohio courts have generally rejected efforts to circumvent libel law under infliction of emotional distress theories. See, Lambert v. Garlo, supra (affirming summary judgment in context of a statement made by a coroner allegedly made to intentionally and/or negligently inflict emotional distress on decedent's family). Accordingly and in addition, statements as in the case sub judice which do not support a cognizable claim for libel are not sufficiently "extreme or outrageous" to support a claim for - 8 - intentional or reckless infliction of emotional distress as a matter of law. See, Id. Plaintiffs have cited no authority to the contrary permitting them to circumvent this limitation upon a lesser showing of "negligent" infliction of emotional distress. Moreover, cases recognizing the tort of negligent infliction of emotional distress have generally been limited to persons who suffer serious and foreseeable emotional injuries after witnessing or experiencing accidents causing physical injuries. See, Tohline v. Central Trust Co. (1989), 48 Ohio App. 3d 280, 284; Criswell v. Brentwood Hospital (1989), 49 Ohio App. 3d 163 (affirming summary judgment on a claim for negligent infliction of emotional distress in the context of a misdiagnosis and erroneous report to authorities that a minor child had a sexually transmitted disease). Plaintiffs claim in the case sub judice is based merely upon an allegedly inaccurate communication and does not involve witnessing or experiencing accidents causing physical injury. We find plaintiffs merely seek to circumvent the showing necessary to establish their libel claim contrary to defendants' privilege and, based upon the record sub judice, have failed to raise a genuine issue of material fact to support their claim of intentional and/or negligent infliction of emotional distress. Accordingly, plaintiffs' second assignment of error is overruled. - 9 - Judgment affirmed. It is ordered that appellee(s) recover of appellant(s) costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN McMANAMON, P.J., and SPELLACY, J., CONCUR JUDGE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .