Hursey v. Ohio State Univ. , 2012 Ohio 6352 ( 2012 )

[Cite as Hursey v. Ohio State Univ., 2012-Ohio-6352.]
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
DEBORA HURSEY, et al.
Plaintiffs
v.
THE OHIO STATE UNIVERSITY
Defendant
Case No. 2011-02140
Judge Dale A. Crawford
DECISION
{¶ 1} Debora Hursey, hereinafter “plaintiff,” brought this action alleging medical
negligence against The Ohio State University Medical Center (OSU). Her husband,
John Hursey, asserts a claim for loss of consortium. The issues of liability and
damages were bifurcated and the case was tried to the court on the issue of liability.
{¶ 2} John Hursey is a long-distance truck driver and plaintiff often travels with
him across the country. On July 17, 2009, plaintiff and her husband, who are residents
of Ohio, were in Billings, Montana, traveling in John Hursey’s truck. It was plaintiff’s
birthday and plaintiff and her husband decided to spend the night at a hotel. Plaintiff
was unable to sleep and on July 18, 2009, plaintiff presented at Billings Clinic Hospital
(Billings) with complaints of shortness of breath and discoloration of her feet.
{¶ 3} On July 18, 2009, plaintiff underwent an echocardiogram (echo) at Billings
and a report from the echo was prepared by Barbara Dudczak, M.D. Contained in the
report are several conclusions, including: “1. Visual estimation of EF [ejection fraction] is
<20% * * * 5. Moderate fixed thrombus on the apical wall of the left ventricle.” (Joint
Case No. 2011-02140 -2- DECISION
Exhibit A 000391.) The report further states: “Left Ventricle: Visual estimation of EF is
<20%. There is a moderate apical left ventricular thrombus, which is flat (mural) in
shape, solid in texture, and which is fixed.” A thrombus is commonly known as a blood
clot and if it embolizes it can cause life-threatening conditions. Plaintiff was treated with
the anticoagulants Heparin and Coumadin while at Billings due to the indication of a left
ventricle thrombus.
{¶ 4} On July 19, 2009, a heart catheterization was performed on plaintiff at
Billings. The test found that plaintiff had three blood vessels to the heart that were
severely damaged and depressed. Plaintiff underwent a second echo at Billings on July
23, 2009. The report, prepared by Brian Rah, M.D., contained several conclusions,
including: “Visual estimation of EF is 20-25%” and “Cannot rule out LV [left ventricle]
thrombus mentioned on previous study. Would consider Definity contrast if indicated.”
(Joint Exhibit A 000389.) The report also notes that plaintiff had moderate mitral valve
regurgitation.
{¶ 5} Billings did not have the proper facilities for plaintiff to undergo heart
surgery so it was decided that plaintiff would receive further treatment from defendant,
OSU. On July 27, 2009, plaintiff was transferred to OSU via medical flight. At OSU,
plaintiff was treated by Louis B. Louis, IV, M.D., a cardiothoracic surgeon. Throughout
plaintiff’s treatment and care Dr. Louis was an employee of defendant as a
cardiothoracic surgeon and as an assistant professor of surgery.
{¶ 6} On July 28, 2009, Dr. Louis completed plaintiff’s patient history. In his
report, Dr. Louis wrote, “I personally reviewed her echocardiogram.” (Joint Exhibit B
000059.) Dr. Louis testified that he cannot recall which image he reviewed, but his
common practice is to look at the latest study performed. After compiling plaintiff’s
history, Dr. Louis determined that plaintiff had severe coronary artery disease and
congestive heart failure. On July 27, 2009, Dr. Louis placed her on Heparin for
anticoagulation. (Joint Exhibit B 000786.) Dr. Louis explained that the reason for the
Case No. 2011-02140 -3- DECISION
anticoagulant was because of plaintiff’s acute coronary syndrome and the possibility of
a left ventricle thrombus.
{¶ 7} Plaintiff underwent an echo at OSU on July 28, 2009. The conclusions
contained in the report from this echo state: “There is diffuse global hypokinesis of the
left ventricle. The calculated ejection is 35% by bi-plane Simpson’s Method.” (Joint
Exhibit B 001233.) Plaintiff also had a cardiac MRI performed on July 28, 2009. The
report from the MRI, prepared by Subha Raman, M.D., indicates that plaintiff’s “final
diagnosis” was coronary artery disease. (Joint Exhibit B 001236.) Neither the July 28,
2009 echo nor the July 28, 2009 MRI mention a left ventricle thrombus. After reviewing
these studies, Dr. Louis prepared plaintiff for coronary artery bypass grafting and mitral
valve repair surgery with a left ventricle assist device (LVAD) backup. (Joint Exhibit B
000778.)
{¶ 8} Plaintiff underwent dental extractions on July 30, 2009, and after the
procedure, Heparin treatment resumed and she remained on Heparin until it was
stopped on August 4, 2009, in preparation for surgery. (Joint Exhibit B 000792,
000803.) Dr. Louis explained the reason for this was solely for her acute coronary
syndrome because the diagnosis of the left ventricle thrombus had been eliminated.
{¶ 9} On July 31, 2009, prior to surgery, Dr. Louis discussed with plaintiff and her
husband the risks, benefits, and alternatives of performing coronary artery bypass
grafting and mitral valve repair with an LVAD backup. Dr. Louis stated in a progress
note that plaintiff agreed to undergo the procedure and that he informed her of the risks
of the surgery including a stroke. (Joint Exhibit B 000777.) Further, both Dr. Louis and
plaintiff signed an informed consent form. In his own handwriting, Dr. Louis wrote that a
stroke was a risk of the surgical procedure. (Plaintiffs’ Exhibit 4.)
{¶ 10} On August 5, 2009, Dr. Louis performed surgery on plaintiff. She
underwent a coronary artery bypass graft, mitral valve repair, and ligation of the left
atrial appendage. (Joint Exhibit B 000841.) Dr. Louis testified that in preparing for
Case No. 2011-02140 -4- DECISION
surgery he had an LVAD prepared to use, if needed, in the mitral valve repair. A cloth
ring was placed around the mitral valve in the heart in order to stop the mitral valve
regurgitation. Immediately prior to surgery, a transesophageal echo (TEE) was
performed by the anesthesiologist in the operating room. (Joint Exhibit B 000851-
000852.) The report notes that plaintiff’s ejection fraction was 35-40%. There is no
reference to a left ventricle thrombus in the report. Dr. Louis testified that during the
surgery he did not see a left ventricle thrombus. No complications arose during the
surgery and a LVAD did not need to be implanted.
{¶ 11} After surgery on August 6, 2009, plaintiff was administered Heparin to
prevent deep venous thrombosis (Joint Exhibit B 000813). Dr. Louis testified that
plaintiff did quite well after the surgery. On August 11, 2009, she underwent a post-
operative echo. One of the conclusions contained in the report from that echo states,
“Not all LV segments well visualized” and the report also notes that the ejection fraction
was 55-60%. (Joint Exhibit B 001231). There was no finding of a left ventricle
thrombus.
{¶ 12} Plaintiff was discharged from OSU on August 11, 2009. She was not
prescribed Coumadin or any other anticoagulant. However, both plaintiff and her
husband recalled watching a video at OSU about Coumadin. John Hursey also testified
that when he realized that plaintiff was not prescribed Coumadin, he called OSU and
was informed that Dr. Louis did not think plaintiff needed to be on Coumadin.
{¶ 13} On August 14, 2009, plaintiff woke up and noticed that something was
wrong. She went to Southeastern Ohio Regional Medical Center (Southeastern) in
Cambridge, Ohio, where she learned that she had suffered a stroke. Plaintiff suffered a
second stroke while at Southeastern at which time she became unable to speak. She
was then transferred to OSU and was treated by Dr. Louis.
{¶ 14} A neurological examination was performed upon plaintiff at OSU, and it is
noted in the report that plaintiff “has had a shower of emboli most likely from a cardiac
Case No. 2011-02140 -5- DECISION
source.” (Joint Exhibit B 000104.) On August 18, 2009, plaintiff had a TEE. The report
conclusions state, in part, “No obvious source of cardiac embolus identified. * * * No LV
thrombus noted.” (Joint Exhibit B 000619.) Dr. Louis placed plaintiff on Coumadin, with
the indication being an embolic stroke. After plaintiff was discharged from OSU, she
underwent rehabilitation at OSU’s Dodd Hall. Plaintiff has been prescribed and has
taken Coumadin up until the time of trial.
{¶ 15} “[I]n order to establish medical [negligence], it must be shown by a
preponderance of the evidence that the injury complained of was caused by the doing of
some particular thing or things that a physician or surgeon of ordinary skill, care and
diligence would not have done under like or similar conditions or circumstances, or by
the failure or omission to do some particular thing or things that such a physician or
surgeon would have done under like or similar conditions or circumstances, and that the
injury complained of was the direct result of such doing or failing to do some one or
more of such particular things.” Bruni v. Tatsumi, 46 Ohio St.2d 127, 131 (1976).
{¶ 16} To the extent that plaintiffs allege a claim of lack of informed consent, the
Supreme Court of Ohio has held that “[t]he tort of lack of informed consent is
established when:
{¶ 17} “(a) The physician fails to disclose to the patient and discuss the material
risks and dangers inherently and potentially involved with respect to the proposed
therapy, if any;
{¶ 18} “(b) the unrevealed risks and dangers which should have been disclosed
by the physician actually materialize and are the proximate cause of the injury to the
patient; and
{¶ 19} “(c) a reasonable person in the position of the patient would have decided
against the therapy had the material risks and dangers inherent and incidental to
treatment been disclosed to him or her prior to the therapy. In applying this test, Ohio
Case No. 2011-02140 -6- DECISION
adopted the reasonable-patient standard.” Nickell v. Gonzalez, 17 Ohio St.3d 136, 139
(1985).
{¶ 20} Plaintiff presented the expert testimony of Christopher Stone, M.D., a
board certified cardiothoracic surgeon practicing medicine in Kenosha, Wisconsin.
Reviewing the July 18, 2009 echo from Billings, Dr. Stone testified that a left ventricle
thrombus existed in the apex of the heart. Dr. Stone opined that there was a thrombus
and its existence was never ruled out by OSU and that it should have been ruled out
before ending plaintiff’s treatment at OSU. He admitted that he could not see a
thrombus on either the July 23, 2009 echo from Billings or the July 28, 2009 echo from
OSU. Also, he could not see a thrombus on the TEE performed during plaintiff’s
surgery. He testified that the August 11, 2009 echo was extremely limited and that he
could not see the area where the thrombus was located. He opined that a left ventricle
thrombus existed and that the echos at OSU were insufficient to rule out such thrombus.
{¶ 21} Dr. Stone had no criticism of OSU’s treatment of plaintiff up until the time
of her discharge. Dr. Stone opined that the standard of care required Dr. Louis to
prescribe Coumadin to plaintiff upon discharge due to the indicators of a left ventricle
thrombus and the mitral valve repair. He explained that the thrombus, which he opined
was never ruled out by OSU, was an “absolute” indicator to prescribe Coumadin while
the mitral valve repair was a “relative” indicator. He testified that “many doctors” would
anticoagulate a patient after mitral valve repair while others would not. Dr. Stone
explained that the introduction of a foreign body from the mitral valve repair along with
plaintiff’s low ejection fraction was a reason to anticoagulate plaintiff.
{¶ 22} Dr. Stone further opined that plaintiff had a left ventricle thrombus at
Billings and that the subsequent studies performed at OSU were insufficient to “rule out”
the thrombus. He opined that plaintiff should have been prescribed Coumadin upon her
discharge or Dr. Louis should have discussed with plaintiff why Coumadin was not
Case No. 2011-02140 -7- DECISION
prescribed. Dr. Stone testified that Dr. Louis breached the standard of care by failing to
do this.
{¶ 23} Regarding the cause of plaintiff’s August 14, 2009 stroke, Dr. Stone
testified that based on the description of a “shower of emboli” contained in the August
14, 2009 neurological consultation, a clot in plaintiff’s heart had embolized and caused
the stroke. Dr. Stone explained three possible causes of the embolic stroke: a blood
clot forming around the mitral valve ring; Dr. Louis’ failure to completely oversew the left
atrial appendage; and the left ventricle thrombus. If plaintiff had been taking Coumadin,
he opined that this would have prevented the stroke.
{¶ 24} Defendant presented the expert testimony of Michael Argenziano, M.D., a
board certified cardiothoracic surgeon practicing at Columbia University in New York
City. He explained that even though a left ventricle thrombus was diagnosed at Billings,
later diagnostic tests performed at OSU did not show that a left ventricle thrombus
existed. While he believes there was no left ventricle thrombus while plaintiff was at
Billings, Dr. Argenziano explained that whether there was a thrombus in Billings was
irrelevant because the echos were repeated at OSU and showed no thrombus.
{¶ 25} Further, Dr. Argenziano opined that plaintiff did not have a left ventricle
thrombus when she was discharged from OSU on August 11, 2009. Reviewing the
echos, MRI, and TEE performed at OSU, he saw no left ventricle thrombus. He also did
not see a left ventricle thrombus on plaintiff’s August 18, 2009 echo, which was after her
stroke. He admitted that if plaintiff did have a left ventricle thrombus, she should have
been prescribed Coumadin.
{¶ 26} Dr. Argenziano opined that defendant’s conduct, including the discharge
plan, was within the standard of care. He explained that Dr. Louis’ decision not to
prescribe Coumadin to plaintiff upon her discharge from OSU on August 11, 2009, was
within the standard of care because there was no indication that an anticoagulant
should be prescribed. He testified that a mitral valve repair is not an indicator to
Case No. 2011-02140 -8- DECISION
prescribe Coumadin. He testified that if plaintiff did have a left ventricle thrombus, then
Coumadin should have been prescribed. Further, he opined that while plaintiff had a
low ejection fraction when she presented at OSU, her ejection fraction had raised to the
normal range after surgery.
{¶ 27} Regarding the cause of plaintiff’s stroke, he admitted that plaintiff suffered
a stroke, but that the post-stroke echo and other studies do not show the source of the
embolism.
{¶ 28} All experts opined that had plaintiff been discharged from OSU with the
anticoagulant Coumadin her stroke probably would not have occurred. This is a
retrospective view of this case. Dr. Louis’ treatment cannot be judged based upon after-
acquired knowledge. See Grabill v. Worthington Indus., 98 Ohio App.3d 739, 744 (10th
Dist.1994). The issue before the court is whether Dr. Louis’ decision to discharge
plaintiff without placing her on Coumadin was within the standard of care based upon
the knowledge and information Dr. Louis had at the time of her discharge on August 11,
2009. The court was presented with two eminently qualified cardiothoracic
surgeons, Drs. Christopher Stone and Michael Argenziano.1 While the doctors
disagreed as to whether a thrombus existed on July 18, 2009, when plaintiff was first
admitted to Billings, the court finds that the evidence supports a finding that a left
ventricle thrombus, as seen and read on the July 18, 2009 echo, existed in plaintiff’s
heart. With this finding of direct evidence of the thrombus, plaintiff would have the court
make an inference that the thrombus existed when plaintiff was admitted to OSU on
July 27, 2009; make a further inference that the thrombus existed at the time of her
surgery on August 5, 2009; make a further inference that the thrombus existed on
August 11, 2009, when she was discharged from OSU; and, make a final inference that
1
The court did not consider Dr. Jeffrey Breall’s opinions regarding the existence of the thrombus
at the time of plaintiff’s admission in Billings because he was not timely identified regarding this subject
matter as required by L.C.C.R. 7(E).
Case No. 2011-02140 -9- DECISION
the thrombus found in Billings on July 18, 2009, was the proximate cause of her stroke
on August 14, 2009. The court cannot make these findings. When plaintiff arrived at
OSU she was given two tests which should have had the ability to diagnose a thrombus:
an MRI and an echo. Neither test detected a thrombus. On the day of her surgery,
August 5, 2009, plaintiff was given a TEE in the operating room which also did not
detect a thrombus. Further, on the date of her initial discharge from OSU, August 11,
2009, plaintiff underwent another echo which did not detect a thrombus. Finally, when
she returned to OSU after her stroke, on August 18, 2009, she was given a third OSU
echo which did not produce evidence of a thrombus. Thus, the court finds that there is
not sufficient direct or circumstantial evidence to support plaintiff’s claim that she had a
left ventricle thrombus at anytime while she was treated at OSU.
{¶ 29} Plaintiff claims that Dr. Louis breached the standard of care by not
prescribing Coumadin upon her discharge and/or by not obtaining informed consent
regarding his decision not to prescribe Coumadin. Plaintiff asserts that the following
factors required Dr. Louis to prescribe Coumadin: (1) some doctors always prescribe
Coumadin for 60 days after performing a coronary artery bypass with a mitral valve
repair; (2) Dr. Louis did not fully oversew the atrial appendage; (3) there existed a left
ventricle thrombus upon discharge; and (4) plaintiff’s low ejection fraction. The court
has previously found that there is insufficient evidence to support a finding of a left
ventricle thrombus at OSU which appears to be dispositive of this issue. However, in
dealing with the other three claims, there is no evidence that the oversew surgical
procedure fell below the standard of care; there is no evidence to support a finding that
failing to prescribe Coumadin after a coronary artery bypass with a mitral valve repair
falls below the standard of care; and, plaintiff’s ejection fraction had improved post-
operatively and there is no expert testimony that a failure to prescribe Coumadin for a
low ejection fraction was a breach of the standard of care. The fact that some doctors
may use a method or treatment different from that used by Dr. Louis does not, by itself,
Case No. 2011-02140 - 10 - DECISION
prove Dr. Louis was negligent. See Pesek v. Univ. Neurologists Assoc., 87 Ohio St.3d
495 (2000)
{¶ 30} The court is sympathetic to the severe injury plaintiff suffered. However,
the fact that Dr. Louis’ treatment resulted in a bad result does not by itself prove that he
was negligent. See Ault v. Hall, 119 Ohio St. 422 (1928). The court finds no negligence
attributed to Dr. Louis in his care and treatment of plaintiff while she was a patient at
OSU and finds that he had no duty to inform plaintiff of a treatment that was not called
for and, based upon the information he had at the time of her discharge, was not a
material risk beyond which was discussed prior to surgery. A stroke is always a risk
after open heart surgery and it was noted on the written informed consent document.2
(Plaintiffs’ Exhibit 4.) The court will further note that it appears that plaintiff has several
theories of negligence on the part of Dr. Louis. However, she is unable to prove by a
preponderance of the evidence which theory, if proved, was the proximate cause of her
stroke. No doctor was able to opine, by a reasonable degree of medical certainty,
where the thrombus came from that caused the stroke. The conventional theory was
that it came from the heart; but where in the heart and whether it came from the original
thrombus, a new thrombus or something else would be speculation.
{¶ 31} Given that the court finds that plaintiffs have failed to prove their claim of
medical negligence, the derivative claim for loss of consortium must also fail. Bowen v.
Kil-Kare, Inc., 63 Ohio St.3d 84, 93 (1992).
{¶ 32} Based on the foregoing, judgment shall be rendered in favor of defendant.
2
Plaintiff did not assert a claim of a lack of informed consent in the complaint. However, since the
plaintiff’s expert, Dr. Stone testified, without objection, that Dr. Louis fell below the standard of care by not
obtaining plaintiff’s informed consent upon discharge, the court has discussed and resolved the issue.
Case No. 2011-02140 - 11 - DECISION
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
DEBORA HURSEY, et al.
Plaintiffs
v.
THE OHIO STATE UNIVERSITY
Defendant
Case No. 2011-02140
Judge Dale A. Crawford
JUDGMENT ENTRY
{¶ 33} This case was tried to the court on the issue of liability. The court has
considered the evidence and, for the reasons set forth in the decision filed concurrently
herewith, judgment is rendered in favor of defendant. Court costs are assessed against
plaintiffs. The clerk shall serve upon all parties notice of this judgment and its date of
entry upon the journal.
_____________________________________
DALE A. CRAWFORD
Judge
cc:
Case No. 2011-02140 - 12 - DECISION
Adam S. Davis Daniel R. Forsythe
Marc K. Erickson Karl W. Schedler
4740 Grand Avenue, Suite 300 Assistant Attorneys General
Kansas City, Missouri 64112 150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130
John K. Fitch
580 South High Street, Suite 100
Columbus, Ohio 43215
004
Filed October 31, 2012
Sent to S.C. Reporter February 28, 2013