COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72506 JANIE DIANNE DICAPO : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION AZZAM AHMED, M.D. : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 4, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 301,365 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: BENITO C. R. ANTOGNOLI DANIEL P. GOETZ MITCHELL A. WEISMAN Attorneys at Law Weisman, Goldberg & Weisman 1600 Midland Building 101 Prospect Avenue, W. Cleveland, Ohio 44115 For defendant-appellee: JEFFREY W. VAN WAGNER GEORGIA A. STANNAITIS Attorneys at Law Ulmer & Berne 900 Bond Court Building 1300 East Ninth Street Cleveland, Ohio 44114 KENNETH A. ROCCO, J.: -2- Appellant appeals the trial court's granting of appellee's motion for a directed verdict and the trial court's exclusion of certain evidence. As the record indicates the trial court did not err, we affirm. Appellant Janie DiCapo and her husband filed a complaint alleging medical malpractice, intentional infliction of emotional distress and battery against appellees Azzam Ahmed, M.D. and Azzam N. Ahmed, M.D., Inc.1 Appellant's claims arose from her allega- tions that Dr. Ahmed, her obstetrician and gynecologist, made improper comments to her and touched her inappropriately.2 This matter proceeded to trial in the Cuyahoga County Court of Common Pleas on April 14, 1997.3 Prior to trial, appellee moved, in limine, to exclude the testimony of two of appellee's former patients, Michelle Mann and Susan Teschner, on the grounds that testimony of appellee's other bad acts is inadmissible. The trial court granted the motion. Following appellant's opening statement, appellee sought directed verdicts on the appellant's allegations of battery and 1Since appellant's claims center on the alleged conduct of Dr. Ahmed, for purposes of this opinion, Dr. Ahmed will be referred to in the singular as appellee. 2Appellant's husband voluntarily dismissed all of his claims prior to the trial of this action. 3In January 1997, appellant voluntarily dismissed her claims alleging medical malpractice. -3- intentional infliction of emotional distress. The trial court granted the motion regarding the battery count.4 At trial, appellant testified that her mother-in-law had referred her to appellee. She began to see appellee in approxi- mately 1991. She had switched to appellee because appellee's office was close to her home. At one time, she switched to another doctor when her husband changed jobs, which temporarily left her with different medical insurance. After appellant's new insurance became effective, she returned to appellee. Appellant wrote a letter to appellee at the time she switched doctors to explain the reason for the change. In the letter, she told appellee that she felt safe with him and trusted him. She wrote, I feel you are a wonderful doctor, it is nice to have a doctor you trust. She testified that she had total trust and total faith in appellee's care for her. Appellant's last visit with appellee was October 15, 1994. Appellant contends that her relationship with appellee began to change in the few months prior to her last visit. Appellant tes- tified that at a visit in April 1994, while she was getting up from the stirrups after appellee had examined her, he told her she was beautiful and that she probably had a lot of boyfriends. Appellant thought he must have confused her with another patient who was not married and did not report the comment to anyone. 4The directed verdict on the battery count is not at issue in this appeal. -4- About two weeks later, at another appointment, appellee told her she was beautiful and that her husband was lucky. Appellee also told appellant that he loved her. When asked how she reacted when appellee told her he loved her, appellant responded that the doctor jokes a lot and that she kind of thought maybe he was joking, you know, just joking, kidding around. She did not tell him or anyone else that she was offended by his statement. Appellant further testified that appellee had told her that her husband should send him flowers because the surgery he per- formed to remedy her stress incontinence made her like a virgin again. Appellant also testified that appellee tried to touch and kiss her. In spite of appellee's behavior, appellant returned to him on October 15, 1994. Appellant went to see appellee for a pelvic examination because she had a lot of pain. One specific complaint was that she had pain during sexual intercourse. Appellant testified that she believed the internal examination went on for longer than it should have. He kept his fingers in there and then he started moving them in and out. Appellant re- ported that appellee had said to her that it was really tight in there and that a man really loves it when a woman's muscles con- tract around his penis while he's pulling it out and someone would really enjoy having sex with [her]. She then sat up quickly and began to cry. According to appellant, appellee then wrote on her chart and left the examining room. -5- Appellant stated that after this incident, she felt like I had been hit by a truck because I was like, you know, it was like this was the doctor that cared for me, and there is a time when you go to a doctor's office you don't think of a doctor as a man or as a person. You think of him as a doctor. It's supposed to be dif- ferent. I mean he is a gynecologist. I never thought a doctor was a man or a person when they were in the room, that they were a doctor. Appellant contends that after the October 15 visit, every- thing started coming together. She then believed that the doc- tor's earlier comments that she had previously overlooked were intentional - that they meant something. Appellant still did not report appellee's behavior to anyone in the office. Appellant did not return to appellee again. She did see a female doctor once; however, even though appellant stated that she still experiences severe pain, she now refuses to see another doctor because she is afraid that a male doctor will just look at me from a man's eyes and not from a doctor and that she just does not trust a female doctor. She will also not see a doctor to attempt to deal with her fear. She claimed that she had made, but then canceled, some appointments. Appellant further testified that she feels guilty and ashamed about the incident. On cross-examination, appellant was asked about the time she alleged appellee had tried to kiss her. She replied, I think as I was going out the door once he put his hand on me, and then I mean there was no contact made. I'm not saying he did actually. -6- Appellee then testified as if on cross-examination. He ad- mitted he had told appellant that he made her like a virgin again because he was proud of the surgery he performed. He denied attempting to kiss appellant but admitted telling her he loved her. Appellee testified that he tells many of his patients that he loves them because he loves his patients. Appellee testified that on October 15, appellant came to see him complaining of persistent pelvic pain and that she told him she could not have sexual relations with her husband without having extreme pain. He explained the incident saying: Now for an expert gynecologist of my nature, twenty years of experience, if I'm going to put my two fingers quickly into the vagina, I'll create severe pain to the degree that the patient will guard their abdomen. I would not be able to find the reason for her pelvic pain during intercourse. Gynecologists who are compassionate with his patient is (sic) sup- posed to deviate their mind away from the pelvic examination so she'll be relaxed com- pletely to allow the physician to find the reason for the visit of that nature. He testified that he started with one finger and then went to two to allow him to see when appellant was in pain. Appellee disputed appellant's account of her visit, asserting that she did not pull away from him and did not cry. He claims that he told her he found extensive scar tissue inside the vagina and asked her to go to his office for a consultation after he had completed the examination. According to appellee, after the exami- nation was completed, appellant went to his office, where they discussed the possibility of surgery to correct the problem. -7- Following the completion of appellant's case, appellee renewed his motion for a directed verdict on the remaining count of intentional infliction of emotional distress. The trial court granted appellee's motion. Appellant timely filed her notice of appeal. Appellant's first assignment of error asserts: THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S MOTION FOR DIRECTED VERDICT. Appellant contends the trial court erred when it granted appellee's motion for a directed verdict on appellant's claim of intentional infliction of emotional distress. The relevant standard for the granting of a directed verdict is set out in Civ.R. 50(A). This rule provides: (4) When granted on the Evidence. When a motion for a directed verdict has been prop- erly made, and the trial court, after constru- ing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue rea- sonable minds could come to but one conclusion upon the evidence submitted and that conclu- sion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. Furthermore: In addition to Civ.R. 50(A), it is well estab- lished that the court must neither consider the weight of the evidence nor the credibility of the witnesses in disposing of a directed verdict motion. Durham v. Warner Elevator Mfg. Co. (1956), 166 Ohio St.31. Thus, if there is substantial competent evidence to support the party against whom the motion is made, upon which evidence reasonable minds might reach different conclusions, the motion must be denied. Kellerman v. J.S. Durig Co. (1964), 176 Ohio St. 320 ***. Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 115. -8- Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284-285. When reviewing a ruling on a directed verdict, an appellate court applies the same standard as that used by a trial court. Donaldson v. N. Trading Co. (1992), 82 Ohio App.3d 476, 480. The elements necessary to successfully state a claim of intentional infliction of emotional distress were discussed in Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369. The Ohio Supreme Court therein adopted the definition of the tort set out in the Restatement of the Law 2d, Torts (1965) 71, Section 46(1): One who by extreme and outrageous conduct in- tentionally or recklessly causes severe emo- tional distress to another is subject to lia- bility for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. (Bartow v. Smith, 149 Ohio St. 301 [37 O.O 10], overruled.) Yeager, supra at the syllabus. Thus, in order to overcome the granting of a directed verdict, appellant must first demonstrate that appellee's conduct was extreme and outrageous. The Yeager court defined extreme and out- rageous conduct as conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Yeager, supra at 375, citing comment d to Section 46 of the Restatement, supra. The facts of the actor's conduct when recited to an average member of the community, would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!' Id. As a motion for a directed verdict requires that the court construe the evidence most strongly in favor of the -9- party against whom the motion is sought, this court must construe the evidence in appellant's favor. It is clear to this court from the testimony adduced at trial that certain aspects of appellee's conduct were extreme and outrageous. Appellee admitted that he told appellant that he loved her. He admitted that he told other patients as well that he loved them. Such a statement in the context of a physician examining a patient, particularly during an examination of a patient's sexual organs, demonstrates, at the very least, a lack of professionalism that is appalling to this court. Equally disturbing is the doctor's failure to advise his patient that he was about to simulate sexual intercourse. Because the relationship between a patient and her obstetrician and gynecologist is so intimate, the utmost professionalism is essential; however, appellant failed to present any medical opinion testimony to demonstrate that the procedure provided by appellee was inappropriate. Moreover, in order to successfully state a claim alleging intentional infliction of emotional distress, the emotional distress alleged must be serious. Yeager, supra at 374. Appellant has submitted no evidence to substantiate her claim that she suffered severe emotional distress. Appellant contends she was in shock after the doctor left the examining room, that she felt stupid, that she no longer trusts doctors, that she felt guilty and that she was ashamed. However, even construing the evidence in appellant's favor, there -10- is no proof in the record sufficient to demonstrate that she suffered severe emotional distress. Serious emotional distress describes a mental injury that is severe and debilitating, going beyond trifling mental disturbance, mere upset or hurt feelings. Paugh v. Hanks (1983), 6 Ohio St.3d 72, 78. Appellant has not sought professional help.5 Moreover, appellant does not contend that she has, for example, undergone a change in appetite or in sleep patterns or suffered in any way that has affected her ordinary functioning and might illustrate that she did suffer severe and debilitating emotional distress. See, e.g., Knief v. Minnich (1995), 103 Ohio App.3d 103, 108 (appellants did not submit evidence sufficient to support their claim of inten- tional infliction of emotional distress where, although expressing frustration and anger, appellants failed to seek medical or psy- chological treatment or counsel in order to cope with their frus- tration and did not allege their frustration was severe or de- bilitating); Borowski v. State Chemical Mfg. Co. (1994), 97 Ohio App.3d 635, 644 (no evidence of serious emotional distress where no evidence of any changes in appellant's emotional condition was pre- sented). The lower court correctly granted appellee's motion for a directed verdict on appellant's claim of intentional infliction of emotional distress. Appellant next contends that: 5When questioned as to why she had not gone to a doctor to deal with this issue, appellant vaguely replied, I called. I canceled sometimes (sic) the appointments. -11- THE TRIAL COURT ERRED IN NOT ALLOWING PLAINTIFF-APPELLANT TO PRESENT THE TESTIMONY OF MICHELLE MANN AND SUSAN TESCHNER. Prior to trial, appellee moved, in limine, pursuant to Evid.R. 404(B), to prevent Michelle Mann and Susan Teschner from testifying in the action sub judice. Mann and Teschner are two other patients who had pending civil actions alleging sexual battery and other misconduct by appellee. Appellant maintains that Evid.R. 404(B) does not preclude the testimony of Mann and Tescher. This rule provides that: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be ad- missible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mis- take or accident. It is appellant's position that the testimony of Mann and Teschner is admissible to show motive, intent and absence of mistake by appellee. Other bad acts may be admitted if (1) there is substantial proof that the alleged other acts were committed by the defendant, and (2) the evidence tends to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." State v. Lowe (1994), 69 Ohio St.3d 527, 530, citing State v. Broom (1988), 40 Ohio St.3d 277, 282-283, 533 N.E.2d 682, 690-691; Evid.R. 404(B); R.C. 2945.59. Furthermore, as the rule is the codification of common law, it is to be construed against admissibility. Lowe, supra. -12- The applicable standard of review for questions regarding the admission of evidence is an abuse of discretion. State v. Soke (1995), 105 Ohio App.3d 226, 249. An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157. There is no evidence that the trial court abused its discre- tion when excluding the testimony of Mann and Teschner. The alle- gations of these witnesses, at the time of the trial of the action sub judice, were merely regarding pending actions. Their allega- tions are insufficient to create substantial proof that appellee committed these other acts. Additionally, it is questionable as to whether the testimony of these witnesses would sufficiently demon- strate the requisite intent necessary to overcome the presumption that evidence of other acts should be excluded. Furthermore, even if appellant's argument has merit, any error in this instance is harmless error. Appellant seeks the testimony of these witnesses to prove that appellee acted intentionally to cause appellant serious emotional distress. However, as noted above, appellant has failed to prove that any treatment provided by appellee was inappropriate; thus, her claim fails without regard to proof of intent. Appellant's final assignment of error contends: THE PRIOR INCONSISTENT STATEMENTS OF AHMED IN THE MANN AND TESCHNER CASES SHOULD HAVE BEEN ALLOWED TO PROVE LACK OF VERACITY ON THE PART OF AHMED. -13- Appellant made a proffer for the record indicating that she would offer statements of appellee from depositions that had been taken in the Mann and Teschner cases to demonstrate that appellee was not truthful in his testimony in the action sub judice. As discussed above, the trial court did not abuse its discretion when excluding the testimony of Mann and Teschner. The trial court also did not abuse its discretion, therefore, when refusing to permit deposition testimony from these pending actions that would alert the jury to the existence of these actions. According to Evid.R. 402, [a]ll relevant evidence is admis- sible *** ; however, Evid R. 403 further provides that: Although relevant, evidence is not admissible if its probative value is substantially out- weighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. Even if appellant were able to demonstrate that evidence of appellee's prior inconsistent statements was relevant to her claims, evidence of these additional actions against appellee would likely be prejudicial and confusing to a jury and outweigh its probative value. The trial court did not abuse its discretion when excluding such evidence. Furthermore, as also noted above, any error by the trial court in this regard is harmless error. Impeaching appellee's truthfulness would have no effect on appellant's failure to demonstrate the elements necessary to suc- cessfully demonstrate a claim of intentional infliction of emo- tional distress. Appellant's final assignment of error is overruled. -14- Appellant's assignments of error are overruled. -15- It is ordered that appellee recover of appellant his 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 Cuyahoga County Court of Common Pleas 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. DIANE KARPINSKI, P.J. and LEO M. SPELLACY, J. CONCUR JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .