Rex v. Univ. of Cincinnati College of Medicine , 2013 Ohio 1514 ( 2013 )

[Cite as Rex v. Univ. of Cincinnati College of Medicine, 2013-Ohio-1514.]
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
DOUGLAS REX, et al.
Plaintiffs
v.
UNIVERSITY OF CINCINNATI COLLEGE OF MEDICINE
Defendant
Case No. 2009-04637
Magistrate Anderson M. Renick
DECISION OF THE MAGISTRATE
{¶ 1} Plaintiffs filed this action alleging medical negligence based upon treatment
provided to plaintiff, Douglas Rex, by Robert Bracken, M.D., an employee of defendant,
the University of Cincinnati College of Medicine (UC).1 The issues of liability and
damages were bifurcated and the case proceeded to trial on the issue of liability.
{¶ 2} In the spring of 2008, plaintiff was diagnosed with prostate cancer.
Plaintiff’s oncologist, Leslie Oleksowicz, M.D., referred him to Dr. Bracken to explore
treatment options. On April 30, 2008, Dr. Bracken met with plaintiff and recommended
that he undergo robotic wide excision radical prostatectomy. According to plaintiff, Dr.
Bracken represented to him that such a procedure was less invasive than other
procedures, resulting in little to no bleeding and a relatively quick recovery period.
{¶ 3} During pre-operative meetings on April 30, 2008, and May 7, 2008, Dr.
Bracken learned that plaintiff had a medical history of atrial fibrillation, a heart condition
that can cause clotting of the blood, and episodes involving a deep vein thrombosis
(DVT) in both 2001 and 2003 for which he had been prescribed Coumadin, an
anticoagulant that slows the body’s ability to stop bleeding. As a part of the treatment
1
For the purposes of this decision, “plaintiff” shall refer to plaintiff Douglas Rex.
Case No. 2009-04637 -2- DECISION
plan and in preparation for surgery, Dr. Bracken instructed plaintiff to stop taking
Coumadin 10 days prior to the procedure, and he prescribed two daily doses of
Lovenox, a short-term anticoagulant, at 145 milligrams (mg) per dose. Such a form of
treatment is known as “bridging therapy,” where a patient is switched from one
anticoagulant to another shortly before surgery.
{¶ 4} The procedure was performed on May 12, 2008, at University Hospital in
Cincinnati, Ohio. The robotic surgery is performed laparoscopically, where the surgeon
inserts probes and manipulates a camera and tools. During the procedure, the
operating table was slanted with plaintiff’s head lowered toward the floor, known as the
steep Trendelenburg position, and his abdomen was inflated with carbon dioxide
(insufflation) to displace his internal organs so that the surgeons had better access and
visualization of the surgical field. After the prostate was removed, Dr. Bracken attached
the bladder to the urethra and reconstructed the bladder neck. The surgery lasted
approximately seven hours and plaintiff lost a significant amount of blood. After the
surgery, plaintiff was transferred to the intensive care unit (ICU) for further treatment
and observation.
{¶ 5} Plaintiff asserts that, following the surgery, he began to experience blurred
vision and difficulty focusing. Plaintiff testified that he was not fully aware of his
surroundings for two weeks following the surgery; however, once he was moved to a
different floor of the hospital, he began to notice difficulty seeing the television, dark
spots in his vision, and blurred vision. Plaintiff testified that, on multiple occasions, he
informed UC medical staff about his vision difficulties. According to plaintiff, on June 19,
2008, Dr. Bracken told him that his vision difficulties were related to the medication he
received during the operation and that his vision would improve. On August 1, 2008,
plaintiff complained to Dr. Bracken that his vision had not improved. Dr. Bracken
scheduled an appointment for plaintiff at the Cincinnati Eye Institute where he was
diagnosed with Ischemic Optic Neuropathy (ION). Plaintiffs allege that Dr. Bracken’s
Case No. 2009-04637 -3- DECISION
actions fell below the standard of care both by failing to consult with plaintiff’s
cardiologist regarding “bridging therapy” and by incorrectly calculating the appropriate
dosage of Lovenox. Plaintiffs further allege that significant surgical bleeding during the
surgery proximately caused plaintiff’s vision problems.
{¶ 6} “In order to establish medical malpractice, 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 and 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 (1976), paragraph
1 of the syllabus. The appropriate standard of care must be proven by expert
testimony. Id. at 130. “[E]xpert opinion regarding a causative event, including
alternative causes, must be expressed in terms of probability irrespective of whether the
proponent of the evidence bears the burden of persuasion with respect to the issue.”
Stinson v. England, 69 Ohio St.3d 451, 1994-Ohio-35, paragraph one of the syllabus.
{¶ 7} Dr. Bracken is a board-certified urologist and professor of surgery with the
University of Cincinnati and he has published numerous peer reviewed journal articles
on urologic cancer research and treatment. At the time of plaintiff’s operation, Dr.
Bracken had performed approximately 200 robotic prostatectomy surgeries and
approximately 1,500 open prostatectomy surgeries. According to Dr. Bracken, bridging
therapy has been practiced for more than 10 years and has now become the standard
of care for treating patients with a history of DVTs. Dr. Bracken testified that he
determined that bridging therapy was appropriate given plaintiff’s medical history and
that he consulted with two UC physicians who specialize in internal medicine about the
dosing level for Lovenox. Dr. Bracken related that the dosage recommendation was for
one mg of Lovenox per kilogram of body weight, which equated to 145 mg twice per
Case No. 2009-04637 -4- DECISION
day. According to Dr. Bracken, one of the internal medicine physicians recommended
additional testing to confirm the proper dosage. Dr. Bracken testified that the additional
blood testing confirmed creatinine clearance levels in line with plaintiff’s known baseline,
resulting in no reduction in the Lovenox dosage for bridging therapy.
{¶ 8} Regarding the procedure, Dr. Bracken opined that plaintiff received the
proper dosage of anticoagulant medication. Dr. Bracken explained that a patient who is
over- anticoagulated will bleed from every blood vessel that is cut and that all patients
are to some extent anticoagulated prior to surgery. According to Dr. Bracken, the
significant bleeding encountered during plaintiff’s surgery occurred during reconstruction
of the bladder neck and that such bleeding is not typical of a patient who is over-
anticoagulated. Dr. Bracken asserted that bleeding encountered at a surgical cite is a
typical complication of surgery. Dr. Bracken further testified that despite administration
of Lovenox prior to surgery, plaintiff suffered a DVT on May 14, 2008, and that a filter
was inserted to prevent the clot from migrating to plaintiff’s lung. Dr. Bracken related
that the records from his examinations of plaintiff do not note any complaints of vision
problems until August 1, 2008. Dr. Bracken testified that after learning of plaintiff’s
vision problems, he referred plaintiff to an opthamologist to ensure prompt attention to
his vision difficulties.
{¶ 9} Plaintiffs’ expert, Michael Mathers, M.D., is a board-certified urologist and
has participated in several hundred prostatectomies, although he has never been the
primary surgeon on a robotic assisted prostatectomy. Dr. Mathers testified that Dr.
Bracken’s administration of Lovenox prior to the procedure did not meet the standard of
care. According to Dr. Mathers, plaintiff’s history did not place him in the “high risk”
category of patients for whom bridging therapy was recommended. Dr. Mathers based
his opinion upon an article that was published in the Cleveland Clinic Journal of
Medicine, which addresses candidates for bridging therapy. (Plaintiffs’ Exhibit 68.) Dr.
Case No. 2009-04637 -5- DECISION
Mathers explained that most patients who are on Coumadin do not require bridging
therapy.
{¶ 10} According to Dr. Mathers, a high risk patient would have a known
hypercoagulable state, a DVT within the previous three months, and atrial fibrillation.
Dr. Mathers stated that plaintiff’s medical history does not suggest a reoccurrence of
atrial fibrillation; however, Dr. Mathers was under the mistaken belief that plaintiff had
only had one previous DVT. Dr. Mathers testified that plaintiff was a “low risk” category
patient for whom bridging therapy was not advised, although he was unaware that
plaintiff had received bridging therapy in 2006 for knee surgery. Dr. Mathers opined that
a patient with a medical history similar to that of plaintiff with two previous DVTs, should
have had a consultation with a cardiologist regarding the proper dosage of Lovenox.
{¶ 11} Ronney Abaza, M.D., a board-certified urologist and an assistant professor
at The Ohio State University, testified as an expert for defendant. Dr. Abaza has
performed approximately 2,000 robotic prostatectomies during his career and he has
published approximately 35 articles on robotic surgery. Dr. Abaza testified that he
routinely administers Lovenox to his patients and that all of his patients are somewhat
anticoagulated prior to surgery. Dr. Abaza opined that the pre-operative treatment Dr.
Bracken provided to plaintiff met the standard of care. According to Dr. Abaza, bridging
therapy with Lovenox is appropriate for a patient who has received Coumadin prior to
surgery. Dr. Abaza testified that the standard of care requires that the surgeon assess
the reason for the Coumadin prescription, typically by consulting with the prescribing
physician and consulting with a cardiologist about the dosing requirements of Lovenox.
Dr. Abaza explained the risk factors for developing a DVT and he opined that a surgeon
must perform a risk-benefit analysis. According to Dr. Abaza, the “rule of thumb” is that
it is easier to treat bleeding than it is to treat a blood clot inasmuch as clotting can cause
a stroke.
{¶ 12} Dr. Abaza testified that Dr. Bracken’s treatment of plaintiff met the
standard of care by consulting with the internists regarding the dosage of Lovenox. Dr.
Case No. 2009-04637 -6- DECISION
Abaza further testified that bridging therapy was appropriate and within the standard of
care given plaintiff’s medical history and risk factors such as two prior DVTs, obesity,
and cancer. Dr. Abaza opined that plaintiff was not over-anticoagulated during the
surgery. According to Dr. Abaza, a patient who is over-anticoagulated will bleed
everywhere contact is made during the surgery. Dr. Abaza explained that the bleeding
that occurred in plaintiff’s surgery was not typical of a patient who is over-anticoagulated
and that it is not surprising that he lost two liters of blood.
{¶ 13} Based upon the foregoing, the court concludes plaintiffs have failed to
prove that Dr. Bracken’s preoperative and surgical treatment fell below the standard of
care. Indeed, Dr. Bracken credibly testified that he consulted with two internists at UC
about bridging therapy and the appropriate dosage of Lovenox. The court is convinced
by Dr. Abaza’s testimony that Dr. Bracken’s actions met the standard of care and that
bridging therapy was reasonable under the circumstances given plaintiff’s medical
history of atrial fibrillation, DVTs, obesity, and cancer. Furthermore, the court finds that
plaintiffs failed to prove that the surgical bleeding proximately caused plaintiff’s vision
difficulties.
{¶ 14} Regarding the cause of plaintiff’s vision loss, plaintiffs presented, by way of
deposition, the testimony of Karl Golnik, M.D., a board-certified ophthalmologist and
vice-chairman of the Department of Ophthalmology at UC. Dr. Golnik is also director of
the Ophthalmology Residency Program at UC and a professor in the Department of
Ophthalmology at the University of Louisville.2 Dr. Golnik testified that plaintiff has
bilateral optic neuropathy, most likely hypoperfusion neuropathy, a condition that is
caused by a lack of blood and/or oxygen in the blood, leading to damage to both the
nerves and visual tissue. According to Dr. Golnik, there are several important factors
that control the amount of oxygen that the optic nerve receives. Such factors include
2
Plaintiffs also presented the deposition of James Ernst, O.D., who testified that he could not give
an opinion as to the cause of plaintiff’s vision loss.
Case No. 2009-04637 -7- DECISION
blood pressure, red blood count, and oxygen saturation; however, Dr. Golnik was
unable to specifically identify any such deficiencies during the surgery that may have
caused plaintiff’s vision problems. Dr. Golnik testified that plaintiff suffered vision
damage at some point between the time he underwent surgery and the time he
regained consciousness.
{¶ 15} According to Dr. Golnik, optic neuropathy should plateau once it is
discovered and the cause is eliminated. Dr. Golnik explained that within the first few
weeks of hypoperfusion a patient’s vision could continue to degenerate but that he
would not expect the patient’s vision to get worse after that initial time period. Dr.
Golnik further testified that if plaintiff’s vision problems continued to degenerate after his
only evaluation on August 15, 2008, he would look for other factors to explain such
vision difficulties. Dr. Golnik admitted that if plaintiff’s vision continued to degenerate, it
would call into question his initial diagnosis. Dr. Golnik asserted that plaintiff was not
legally blind in August 2008.
{¶ 16} Andrew Lee, M.D., a board-certified neuro-ophthalmologist and chair of the
Department of Ophthalmology at Methodist Hospital in Houston, Texas, testified as an
expert for defendant. Dr. Lee testified that the exact cause ION is presently unknown;
however, the condition is associated with several predisposing factors including age,
gender, weight, diabetes, hypertension, and smoking. Dr. Lee explained that additional
factors such as the duration of a surgery, blood loss, and blood pressure are risk factors
for ION that are associated with surgery. Dr. Lee stated that vision loss following a
robotic prostatectomy is rare, with one occurrence for every 60,000 surgeries. Dr. Lee
testified that based upon plaintiff’s medical records, plaintiff has regressed from reading
vision to being legally blind in both eyes. Dr. Lee testified that plaintiff’s vision loss
occurred over a period of years after surgery and that such progressive loss of vision
shows that the cause of the disease was not a surgical event. Dr. Lee opined to a
reasonable degree of medical probability that plaintiff’s surgery was not the cause of his
Case No. 2009-04637 -8- DECISION
ION. According to Dr. Lee, the evidence dose not support the conclusion that blood
loss, low blood pressure, surgical time, or low hemoglobin caused plaintiff’s ION.
{¶ 17} Based upon the foregoing, the court finds that plaintiffs have failed to
prove that the treatment rendered by Dr. Bracken fell below the standard of care. The
court is persuaded by the testimony of Dr. Lee that the evidence does not support
plaintiffs’ assertion that plaintiff’s vision difficulties were caused by surgical bleeding.
Furthermore, the court finds that Dr. Golnik’s diagnosis of optic neuropathy is not
consistent with plaintiff’s history of progressive vision loss. For the foregoing reasons,
the court finds that plaintiffs have failed to prove any of their claims by a preponderance
of the evidence and accordingly, judgment is recommended in favor of defendant.
{¶ 18} A party may file written objections to the magistrate’s decision within 14
days of the filing of the decision, whether or not the court has adopted the decision
during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files
objections, any other party may also file objections not later than ten days after the first
objections are filed. A party shall not assign as error on appeal the court’s adoption of
any factual finding or legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely
and specifically objects to that factual finding or legal conclusion within 14 days of the
filing of the decision, as required by Civ.R. 53(D)(3)(b).
_____________________________________
ANDERSON M. RENICK
Magistrate
cc:
Case No. 2009-04637 -9- DECISION
Brian M. Kneafsey, Jr. Gregory P. Hartmann
Assistant Attorney General Joseph W. Shea III
150 East Gay Street, 18th Floor Michelle A. Cheek
Columbus, Ohio 43215-3130 Shirley A. Coffey
119 West Central Parkway
300 Court Index Building
Cincinnati, Ohio 45202
003
Filed January 25, 2013
To S.C. Reporter April 16, 2013