SUSAN D. BROWN, COMMISSIONER.
On December 10, 1988, in Franklin County, Ohio, the decedent, Hawthorne Lewis, was assaulted and robbed by Lillian Clayton. Lewis died on January 21, 1989. It is significant to note that the decedent was seventy-six years old, diagnosed as having lung cancer and related medical problems, and had recently undergone outpatient chemotherapy when the criminally injurious conduct which forms the basis of this claim occurred.
On April 7, 1989, pursuant to a February 17, 1989 motion to substitute applicants, this court issued an order whereby Mary Lewis, the decedent's widow, was substituted for Hawthorne Lewis, as applicant in this claim.
The assault was reported to the Columbus Police Department within seventy-two hours after the occurrence.
The assailant was found guilty of aggravated burglary and aggravated robbery.
After careful review of the reparations application, the findings of fact and recommendation of the Attorney General, documents and evidence contained in the claim file, and the response of the applicant, I make the following determination.
As a result of the December 10, 1988 criminally injurious conduct, unreimbursed allowable expense in the amount of $1,535.95 was incurred.
On December 10, 1988, Hawthorne Lewis was severely beaten by Lillian Clayton. The seventy-six-year-old victim, who recently had undergone chemotherapy for cancer, was beaten with a metal cane and had a ewer smashed on the top of his head. The police report indicated that Lewis was bleeding profusely from a head injury when investigating officers arrived. Upon the victim's admission to Grant Hospital, Dr. Griffin noted multiple fractures of the victim's skull and numerous lacerations on his head, arms, and hands. After Columbus Police Detective J. Eagon attempted to interview Hawthorne Lewis, Dr. Griffin told Detective Eagon that Lewis' injuries could prove to be fatal to the victim within a week. However, Lewis was discharged from the hospital on December 21, 1988. In her medical information report, Deborah Meesy, M.D., listed the victim's injuries as multiple facial and scalp lacerations, a closed head injury, and left index finger fracture, and noted that the patient's lung cancer and chemotherapy complicated his recovery.
On January 21, 1989, Lewis died. The coroner's report indicates that the immediate cause of death was "metastatic epidermoid carcinoma of lung." However, in a report filed with the applicant's response, William J. Hicks, M.D., the decedent's doctor, states: "* * * It is clear that * * * [Hawthorne Lewis] died of a cardiopulmonary arrest secondary to increasing respiratory insufficiency from lung congestion, associated with fluid and cancer blocking adequate oxygenation. Although he did not die as a direct result of the beating which he sustained, it's clear that the beating, because of their [ sic] associated morbidity did not allow him to recuperate as much as was expected or as much as was possible."
Based on the coroner's report, the Attorney General concluded that the decedent's death was attributable to lung cancer. Therefore, the Attorney General determined the death was not a result of the December 10, 1988 criminally injurious conduct and the jurisdictional requisites to an award of reparations for funeral expense, dependent's economic loss, or dependent's replacement services loss had not been met.
In In re Marsick (Mar. 7, 1980), Ct. of Claims No. V78-3717sc, unreported, a claim wherein the coroner's report indicated that the cause of death was suicide and wherein the claimant contended that the death was a homicide, the single commissioner determined that the nature of a death is a justiciable issue.
The facts in In re Keller (Mar. 16, 1982), Ct. of Claims No. V79-3663sc, unreported, are similar to the instant claim in that both involve coroners' reports which stated the decedents' causes of death were attributable to accidental or natural circumstances as opposed to criminally injurious conduct. In Keller, a single commissioner held the coroner's report did not assert the only cause of death, but "merely intended to describe the immediate and direct cause of death." The commissioner noted that In re Keller involved variations in medical testimony regarding the cause of death. The commissioner then chose to view the assertions set forth in one physician's affidavit as "complementing the coroner's report rather than contradicting it." Therefore, the commissioner found: "* * * the coroner's report, rather than asserting that the fall at home was the only cause of death, merely intended to describe the immediate and direct cause of death. To complete the picture, the coroner now adds that a no less contributing factor in Jesse Keller's death was the criminally injurious conduct of the offender."
The rationale applied in In re Keller, supra, is applicable to this claim. Here, the coroner's report described the immediate and direct cause of Hawthorne Lewis' death as lung cancer. However, other medical testimony, which under Keller can be viewed as "complementing the coroner's report," was provided by three doctors. The emergency room physician told the investigating detective that Lewis' injuries could prove fatal within a week. Dr. Deborah Meesy, Lewis' attending physician, noted that the victim's injuries combined with his cancer complicated his recovery. Dr. William H. Hicks, who treated Lewis prior to the December 10, 1988 criminally injurious conduct, filed a report wherein he concluded that the victim's injuries did not allow him to recuperate as much as expected from his cancer. Therefore, I find the coroner's report merely described the immediate and direct cause of death and that the evidence provided by Doctors Griffin, Meesy, and Hicks shows an equally contributing factor in Lewis' death was the effect of the criminally injurious conduct of the offender.
In the October 12, 1989 findings of fact and recommendation, the Attorney General recommended an award of $1,535.95 in reparation of allowable expense. The recommendation is adopted and an award in that amount shall be granted. Additionally, the claim is referred to the Attorney General for an investigation and recommendation concerning funeral expense, dependent's economic loss, and dependent's replacement services loss.
Findings of Fact
1. On December 10, 1988, Hawthorne Lewis was criminally assaulted by Lillian Clayton in Franklin County, Ohio.
2. On January 21, 1989, Hawthorne Lewis died.
3. On April 7, 1989, this court issued an order whereby Hawthorne Lewis' widow, Mary Lewis, was substituted as the applicant in this claim.
4. The Franklin County Coroner's report lists the decedent's immediate cause of death as metastatic carcinoma of the lung.
5. The emergency room physician who treated Lewis told the investigating detective that the victim's injuries were serious enough to prove fatal within a week.
6. Dr. Meesy noted in a medical information report that the victim's recovery from cancer was complicated by the injuries received from the offender.
7. Dr. Hicks filed a report which was submitted with the applicant's response stating that the victim's injuries prevented his recovering from cancer to the extent expected or possible.
8. Applicant Mary Lewis, in her capacity as substituted applicant, incurred unreimbursed allowable expense in the amount of $1,535.95.
Conclusions of Law
Pursuant to R.C. 2743.51 through 2743.72, I find that the applicant qualifies as a claimant and is granted an award of reparations in the amount of $1,535.95, all of which represents "unreimbursed allowable expense," as defined in R.C. 2743.51(F). Pursuant to the holding of In re Keller, supra, the applicant has established by a preponderance of the evidence that the December 10, 1988 criminally injurious conduct was a contributing factor in the decedent's January 21, 1989 demise.
Order
1. Judgment is rendered against the state of Ohio and the Director of Budget and Management as its agency for payment of the award in the amount of $1,535.95.
2. The warrant issued in payment of this judgment to the applicant shall be sent by the Director of Budget and Management to the applicant at the address certified to the Director by the Clerk of this court.
3. This order is entered without prejudice to the applicant's right to file a supplemental reparations application pursuant to R.C. 2743.68 if the applicant incurs economic loss not considered in this determination and not reimbursed from other persons, including collateral sources.
4. This claim is not yet ready for final determination.
5. This claim is referred to the Attorney General for further investigation and a new recommendation concerning funeral expense, dependent's economic loss, and dependent's replacement services loss.
6. The new finding of fact and recommendation of the Attorney General shall be filed with the court by April 16, 1990.
7. The applicant may respond to the new finding of fact and recommendation within twenty-one days after it is filed by the Attorney General.
8. Costs are assumed by the reparations fund.
So ordered.