COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 73854, 73855 OSCAR KREMS, ET AL., Plaintiffs-appellants JOURNAL ENTRY vs. AND UNIVERSITY HOSPITALS OF CLEVELAND, ET AL., OPINION Defendants-appellees DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 25, 1999 CHARACTER OF PROCEEDING: Civil appeals from Common Pleas Court, Case Nos. CV-302851, CV- 314212 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiffs-appellants: For defendants-appellees: JEFFREY A. LEIKIN, ESQ. JAN L. ROLLER, ESQ. SANDRA J. ROSENTHAL, ESQ. DAVIS & YOUNG CO., L.P.A. NURENBERG, PLEVIN, HELLER 1700 Midland Building & McCARTHY CO., L.P.A. Cleveland, Ohio 44115-1027 1370 Ontario - First Floor Cleveland, Ohio 44113-1792 DAVID L. MARBURGER, ESQ. LISA HAMMOND JOHNSON, ESQ. HILARY W. RULE, ESQ. BAKER & HOSTETLER 3200 National City Center 1900 East Ninth Street Cleveland, Ohio 44114-3485 -2- KARPINSKI, J.: Plaintiffs-appellants, Oscar and Amy Krems, appeal from the judgment of the trial court which granted summary judgment in favor of The Cleveland Plain Dealer (hereinafter referred to as PD ) and University Hospitals of Cleveland (hereinafter referred to as UH ). Plaintiffs sought public donations to help with the medical bills for their terminally ill son. In two separate articles, the PD criticized the couple for raising money when, in fact, a state program was paying the bills. Thereafter, plaintiffs brought a defamation action against the newspaper and the hospital. The trial court granted summary judgment for defendants. For the reasons that follow we find no merit to plaintiffs' arguments and affirm the judgment of the trial court. This case begins with the tragic illness and death of plaintiffs' son, Zachary, who, at the age of eight months, was diagnosed with hepatoblastoma, a rare form of liver cancer. Zachary died of pneumoccocal meningitis almost a year later on January 1, 1996. Because they did not have insurance, plaintiffs faced mounting medical bills during his illness. On the day of Zachary's diagnosis, plaintiffs met with Sheryl Cohen, the UH pediatric oncology social worker assigned to their case. She advised plaintiffs to apply to the Ohio Bureau of Children with Medical Handicaps ( BCMH ). In her deposition Amy Krems acknowledged that Sheryl Cohen advised her that once BCMH approval is obtained, everything would be paid for. Cohen expressly explained to the -3- Krems that BCMH is a state agency which provides financial coverage for specified periods of time. If BCMH coverage is approved, the health care provider bills BCMH directly and receives payment directly from BCMH. Once BCMH has paid the portion of the charge it approves, the health care provider may not bill the patient for the remainder. The first approval letter was received on March 8, 1995. The letter stated that plaintiffs were covered from January 30, 1995 to April 30, 1995. At this point, as instructed by Cohen, plaintiffs sent the BCMH approval letter to all the health care providers that were sending them bills. A second approval letter, sent on July 26, 1995, extended coverage from January 30, 1995 to January 29, 1996. On August 22, 1995, plaintiffs met with Marge Mordarski, a financial counselor with UH, and gave her all the bills they received that were not billed to BCMH. Mordarski reassured plaintiffs that BCMH would assume responsibility for all the bills. She also encouraged plaintiffs to apply for Medicaid because Oscar Krems had recently lost his job in late July, 1995. By October or November of 1995, Medicaid became the primary payor for all of plaintiffs' related medical expenses, retroactive to August 1st. During this summer of 1995, plaintiffs sought media help to raise money to help with their situation. In various flyers posted in public places, plaintiffs described their medical bills as -4- skyrocketing. 1 On July 30, 1995, plaintiffs issued a press release to local television stations and numerous newspapers. The release stated in part as follows: In addition, the Kremses' financial journey will continue on. Without a health insurance policy, doctors' fees, surgeries, hospital stays, chemotherapy and home treatment bills have put the family over $700,000.00 in debt. Fortunately, the Bureau of Children with Medical Handicaps will cover many hospital bills for this uninsured child. However, the Bureau covers only 90 days of hospital stays. Zachary is currently at 80 days and has many more treatments to go. The release went on to ask the public to send donations to a fund established at the plaintiffs' church to aid with their growing debt. Additionally, plaintiffs distributed in public places leaflets which stated that the family has accrued over $700,000 in bills. In response to the press release, two local T.V. stations, WKYC, Channel 3, and WJW, Channel 8, interviewed plaintiffs about their situation in August 1995. During the WJW interview, Oscar Krems estimated that the medical bills were well over $700,000 already and only part of their total medical bills were going to be covered. As a result of the press releases and publicity, plaintiffs received over $3,000 in donations. After the story, WJW's reporter faxed a copy of the press release to UH's Media Relations Coordinator, Janice Guhl. Guhl then met with UH's Government Affairs Director, Bernard Weems, and Modarski. They determined that plaintiffs did not owe the hospital 1 See exhibits J, K, and M attached to defendant University Hospital's Motion for Summary Judgment. -5- anything and that plaintiffs were not in debt $700,000 for Zachary's care. On August 22, 1995, Modarski then met with plaintiffs. She examined the bills that they had received and told them to direct the bills to BCMH. The outstanding bills for Zachary's care as of August, 1995 totaled $80,119.42. Modarski assured plaintiffs that their balance would be zero because they would not be responsible for any of this amount. Thereafter, PD writers Laura Yee and Joan Mazzolini wrote an article published on August 27, 1995, which chronicled plaintiffs' financial situation and pleas for help. Prior to the story, the reporters interviewed hospital officials and plaintiffs. The headline for this story stated, Hospital says no money owed and Family appealed to public for help. The complete article is reproduced as an appendix to this opinion. Moreover, on September 1, 1995, the Plain Dealer editorial staff criticized the family in the weekly Cheers & Jeers column as follows: JEERS... to Oscar and Amy Krems of Lakewood, who tugged at the community's heartstrings with their appeals for money 700,000 they said on behalf of their cancer stricken baby. But Rainbow Babies and Childrens Hospital officials said the Kremses have no bills because they are covered by the state's Bureau of Children with Medical Handicaps. Such misguided campaigns give people with legitimate appeals a bad name. After this column was published, ABC World News Tonight interviewed plaintiffs. -6- Plaintiffs filed suits against University Hospitals of Cleveland (UH), Rainbow Babies and Children's Hospital (RB&C)2, and the Cleveland Plain Dealer (PD). The cases were eventually consolidated and both defendants moved for summary judgment. In a comprehensive opinion, the trial court held, inter alia, as follows: (1) the facts reported from the hospital to the PD were literally correct and contextually neutral, (2) the August 27, 1995 article contained no misstatements of fact, and (3) the Cheers and Jeers column was a non-actionable expression of fact. Plaintiffs timely appeal, raising one assignment of error: I. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT WHEN THE EVIDENCE SUPPORTED EACH ELEMENT OF PLAINTIFFS' LIBEL CLAIMS. (R1.56; R2.34) In this assignment, plaintiffs argue that they presented substantial evidence to support their libel claims against the defendants. Specifically, on appeal, plaintiffs argue that defendants committed libel by (1) implying the Kremses sought to sucker the public into donating money to a fund that was undertaken for their own personal benefit; (2) stating falsely the family owned [sic] no medical costs when in fact such costs were owed; (3) stating falsely that it had been explained to the family at the beginning and all through the process of Zachary's hospital stay that [t]he cost of doctor and hospital procedures to the patient is zero. ; and (4) stating falsely that the Kremses had been assigned a billing counselor at the beginning of Zachary's treatment. 2 RB&C is a part of University Hospitals of Cleveland and, for all purposes herein, they are the same legal entity. They are collectively referred to herein as UH. -7- (Plaintiffs' appellate brief at 14.) After reviewing the articles and the evidentiary materials submitted herein, we find no merit to plaintiffs' arguments. Under Ohio law, libel is defined as, a false and malicious publication made with the intent to injure a person's reputation or expose him to public hatred, contempt, ridicule, shame or disgrace, or affect him adversely in his trade or profession. Thomas H. Maloney & Sons, Inc. v. E.W. Scripps Co. (1974), 43 Ohio App.2d 105, cert. den. (1975), 423 U.S. 883, 96 S.Ct. 151, 46 L.Ed.2d 111. The elements of a libel action are falsity, defamation, publication, injury and fault. Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323. See also, Natl. Medic Serv. Corp. v. E.W. Scripps Co.(1989), 61 Ohio App.3d 7, in which the court stated as follows: [F]alsity is an essential element to a libel action; therefore, a true statement cannot provide the basis for such an action. Driscoll v. Block (1965), 3 Ohio App.2d 351, 32 O.O.2d 506, 210 N.E.2d 899. As Professor Prosser stated: it is sufficient [in defending against a defamation action] to show that the imputation is substantially true, or as it is often put, to justify the `gist,' the `sting,' or the substantial truth of the defamation. Prosser, Law of Torts (4 Ed.1971) 798-799; accord Cooper School of Art v. Plain Dealer Publishing Co. (May 8, 1986), Cuyahoga App. No. 50569, unreported, 1986 WL 5294. Thus, appellants' assertion that the challenged statements were defamatory fails when they failed to establish a prima facie case on the element of falsity, i.e., when the record reveals that the published reports were fairly accurate or substantially true. Id. at 755. In the case at bar, plaintiffs have not established the material falsity of any statements made by the PD or UH. Plaintiffs argue it was false to report that plaintiffs had no medical and hospital costs when they did have outstanding bills at -8- the time of the article August 27, 1995. Paragraph four of the article stated in pertinent part: But officials of Rainbow Babies and Children's Hospital say the Kremses owe no money for Zachary's medical care. The officials say the medical and hospital costs have come to less than $100,000 not the $700,000 the Kremses say they owe. In fact, the hospital and doctors will be reimbursed for Zachary's medical care by Ohio Bureau of Children with Medical Handicaps. This statement was true because plaintiffs had applied and received BCMH coverage first in March and again in July of 1995. This coverage was extended throughout 1995. Thus they were not responsible for any outstanding bills in this matter. The remainder of paragraph four is also true because at the time the article was published the outstanding charges were approximately $80,000, not the $700,000 the plaintiffs claimed, and it is clear that BCMH had already granted coverage for the earlier bills submitted. Moreover, plaintiffs were properly advised that BCMH could be expected to extend the coverage for the remainder.3 Therefore, paragraph four of the article is not libelous. Plaintiffs also contest paragraph 5, which states in pertinent part: The cost of doctor and hospital procedures to the patient is zero, said Janice Guhl, a spokeswoman for Rainbow. All of this has been explained to this family from the beginning and all through the process of Zachary's hospital stay. 3 In fact, BCMH sent an approval letter four days before plaintiffs issued their news release. -9- This statement is true. Plaintiffs admit that Cohen and Modarski told them that their bills would be covered.4 Plaintiffs also contest the truth of paragraph 12: Because the Kremses had no insurance, Rainbow assigned them a billing counselor at the beginning of Zachary's treatment. This statement also is true. On February 2, 1995, plaintiffs met with Sheryl Cohen, who advised the family about coverage of Zachary's expected medical bills. Cohen explained the BCMH coverage which plaintiff later obtained. As a social worker, she counseled plaintiff about the bills and thus could properly be described as a billing counselor. Because the truth is an absolute defense to a defamation action, summary judgment was properly granted for defendants. In his well-written opinion granting summary judgment, Judge Curran noted as follows: This court is unable to discern any material misstatements of fact much less any inferentially false or defamatory references in the newspaper account; nor is there an expression of opinion which could be stretched into libel. In defending against the pending motion practice, plaintiffs' [sic] contend that hindsight is of no moment because the newspaper account though evidently propheticallytrue was false when published. This Court disagrees with that proposition, because it tends to relegate truth to mere metaphysical sophistry. And this Court knows of no case standing for the proposition that a predicted portrayal as such and which [sic] is known at the time of litigation to be accurate in the cold light of existing hindsight, should be actionable, even if recklessly laid out. But the totality of the circumstances surrounding the story fails to reveal any journalistic predictions. What it does reveal is a 4 See Amy Krems's Depo. at 29, 59, 118. -10- failure of disclosure an essential failure not by the press but by the Krems. In addition, plaintiffs argue that defendants committed libel by implying that plaintiffs sought to sucker the public into contributing.This argument fails. Ohio does not recognize libel through implied statements. Ashcroft v. Mount Sinai Medical Center (1990), 68 Ohio App.3d 359. Moreover, the article went out of its way to state the hospital did not believe that the plaintiffs had a fraudulent purpose: Rainbow officials have not accused the Plaintiffs of raising money for personal use, though they are concerned that the family is misrepresenting the hospital in their plea for help. The hospital officials believe the parents might be overwhelmed by Zachary's illness and the cost of his care. First, Ohio employs the innocent construction rule, which requires that contested statements be given their nonactionable interpretation, Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369. Here, moreover, the article merely reports what the hospital officials said. We decline, therefore, to find any liability based on plaintiffs' argument that the article implied that plaintiffs intended to sucker the public. Plaintiffs finally argue that the Plain Dealer's Cheers and Jeers column characterized them as thieves perpetrating a fraud upon the public. This column, however, was an expression of opinion and, therefore, not actionable as defamation. Vail v. The Plain Dealer Publishing Co. (1995), 72 Ohio St.3d 279. Accordingly, the trial court did not err in granting defendants' motions for summary judgment. -11- Judgment affirmed. -12- It is ordered that appellees recover of appellants their 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. PATRICIA A. BLACKMON, A.J., KENNETH A. ROCCO, J., CONCUR. DIANE KARPINSKI JUDGE 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. 22. 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 .