Yurkowski v. Univ. of Cincinnati , 2011 Ohio 5982 ( 2011 )

[Cite as Yurkowski v. Univ. of Cincinnati, 2011-Ohio-5982.]
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
SHARON YURKOWSKI, Admr., etc., et al., Case No. 2007-04311
Plaintiffs,
v. Judge Alan C. Travis
UNIVERSITY OF CINCINNATI,
Defendant. DECISION
{¶1} Plaintiff1 brings this action for wrongful death against defendant on behalf of
herself and the heirs of decedent, Peter Yurkowski. The issues of liability and damages
were bifurcated and the case proceeded to trial on the issue of liability.
{¶2} Plaintiff’s decedent, Peter Yurkowski, was married to plaintiff in 1985, and
the couple had two children, Cara and Danny. Yurkowski suffered from major
depression with suicidal ideation for much of his adult life. He made his first attempt at
suicide when he was just 18 years old. He was able to recover from that episode and
he eventually graduated from college and later attended graduate school at the
University of Cincinnati (UC). Yurkowski met plaintiff at UC and he earned a degree
from the college of pharmacology.
{¶3} In 1992, Yurkowski took a position with University Hospital (UH) as a clinical
pharmacist. He excelled in his position and, as a result of his expertise, he was invited
to lecture throughout the country on subjects related to pharmacology. During that time,
he also served as a youth football coach and he was involved in other activities in his
community.
1
As used herein, “plaintiff” shall refer to Sharon Yurkowski.
{¶4} Yurkowski’s mental health issues resurfaced in 2000, when he became
extremely anxious and he began to suffer from psychosomatic illnesses that prevented
him from traveling. He eventually presented to the UH emergency room with symptoms
of severe depression and he was subsequently admitted to Christ Hospital for inpatient
treatment in September 2000, and then again in December 2000.
{¶5} James S. Curell, M.D., began treating Yurkowski when Yurkowski was
transferred from Christ Hospital to UH in 2000.2 Dr. Curell knew Yurkowski
professionally through Yurkowski’s employment as a clinical pharmacist at UH and he
was aware that Yurkowski had been admitted to Christ Hospital with a diagnosis of
“major depression.” Over the next several years, Yurkowski was admitted to the UH
psychiatric unit on ten separate occasions for mental health treatment. He continued to
be employed by UH as a pharmacist during this time. During the last six months of his
life, Yurkowski was hospitalized a total of 85 days.
{¶6} Yurkowski’s last hospitalization ended March 22, 2005, when he was
discharged by Dr. Curell. Dr. Curell continued to see Yurkowski on an outpatient basis
following his discharge. The outpatient progress notes contained in the medical records
state that Dr. Curell had three outpatient sessions with Yurkowski after his discharge,
the last one being April 13, 2005. In his notes from the April 4, 2005 session, Dr. Curell
noted that Yurkowski “does remain at risk.” Yurkowski took his own life on April 18,
2005, with an overdose of drugs.
{¶7} In the complaint, plaintiff alleges that Dr. Curell failed to properly diagnose
Yurkowski’s condition; that his personal and working relationship with Yurkowski
improperly influenced his independent professional judgment; and that Dr. Curell
prematurely discharged Yurkowski from UH on March 22, 2005. According to plaintiff,
these instances of malpractice were the proximate cause of Yurkowski’s death.
{¶8} “To maintain a wrongful death action on a theory of negligence, a plaintiff
must show (1) the existence of a duty owing to plaintiff's decedent, (2) a breach of that
duty, and (3) proximate causation between the breach of duty and the death.” Littleton
2
Following an evidentiary hearing, the court determined that Dr. Curell is entitled to civil immunity
pursuant to R.C. 2743.02(F) and 9.86.
v. Good Samaritan Hosp. & Health Ctr. (1988), 39 Ohio St.3d 86, 92, citing Bennison v.
Stillpass Transit Co. (1966), 5 Ohio St.2d 122.
{¶9} “In order to establish medical malpractice, it must be shown by a
preponderance of 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 * * *.”
Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, paragraph one of the syllabus.
{¶10} As a general rule, “[a] psychiatrist, as a medical specialist, is held to the
standard of care ‘of a reasonable specialist practicing medicine or surgery in that same
specialty in the light of present day scientific knowledge in that specialty field * * *.’”
Littleton, supra, at 93, quoting Bruni, supra, at paragraph two of the syllabus. However,
in Littleton, supra, the court recognized the difficulty in strictly applying such a standard
in cases involving the discharge of a patient. Therein the court determined that “a
psychiatrist will not be held liable for the violent acts of a voluntarily hospitalized mental
patient subsequent to the patient’s discharge if (1) the patient did not manifest violent
propensities while being hospitalized and there was no reason to suspect the patient
would become violent after discharge, or (2) a thorough evaluation of the patient’s
propensity for violence was conducted, taking into account all relevant factors, and a
good faith decision was made by the psychiatrist that the patient had no violent
propensity, or (3) the patient was diagnosed as having violent propensities and, after a
thorough evaluation of the severity of the propensities and a balancing of the patient’s
interests and the interests of potential victims, a treatment plan was formulated in good
faith which included discharge of the patient.” Id. at 99.
{¶11} Defendant contends that all medical claims alleging an improper discharge
of a psychiatric patient are governed by the “professional judgment rule” in Littleton,
supra. Plaintiff attempts to distinguish Littleton from the present case on the basis that
Littleton involved an injury to a third-party, not suicide. However, in a subsequent
decision of the Tenth District Court of Appeals, the “professional judgment rule” was
applied in a case of suicide. Brooks v. Ohio Dept. of Mental Health (Nov. 14, 1995),
10th Dist. No. 95API04-505.
{¶12} In Brooks, supra, the court explained: “While the test in Bruni is proper in a
medical negligence case, the court in Littleton * * * recognized that, because of the
unpredictability and uncertainty as to patients’ actions upon release from a psychiatric
facility, holding psychiatrists to the malpractice standard of ordinary care is too
stringent.” Id. The court adopted the “professional judgment rule,” whereby a
psychiatrist could not be held liable for releasing a patient who subsequently harms
himself if the psychiatrist makes a “good faith judgment based on a thorough evaluation
of all relevant factors.” Id. (Citations omitted.)
{¶13} Thus, with respect to plaintiff’s claim that Yurkowski was prematurely
discharged, the court will apply the professional judgment rule. Dr. Curell had treated
Yurkowski’s symptoms of major depression in the four years prior to Yurkowski’s death.
The treatment included the use of numerous anti-anxiety and antidepressant drugs,
group and individual psychotherapy sessions, electroconvulsive therapy (ECT), and a
total of ten hospitalizations both voluntary and involuntary. However, in order for the
court to review Dr. Curell’s decision to discharge Yurkowski on March 22, 2005 in the
proper context, the court will review the history of Dr. Curell’s treatment of Yurkowski in
the years prior to Yurkowski’s death.
{¶14} In January 2001, Dr. Curell admitted Yurkowski to the UH inpatient
psychiatric unit for treatment of his depression. Following inpatient treatment,
Yurkowski was discharged from UH on January 16, 2001, with a diagnosis of major
depression, severe and recurring with a differential diagnosis of possible bipolar
disorder.
{¶15} Following Yurkowski’s discharge, Dr. Curell began to provide Yurkowski
with individual psychotherapy on an outpatient basis. During his sessions with Dr.
Curell, Yurkowski complained to him that the medications prescribed by the physicians
at Christ Hospital made him groggy and unable to function at work. Dr. Curell prescribed
an anti-depressant, Serzone, and the anti-anxiety drug, Klonopin. He also counseled
Yurkowski to simplify his life to allow himself more free time. Yurkowski continued to
take the prescribed medications and he gave up lecturing to focus on clinical
pharmacology. Dr. Curell testified that as a result of the medication and lifestyle
changes Yurkowski was able to “return to normal function.”
{¶16} A little more than four years later, on June 16, 2004, Yurkowski was taken
to the UH emergency room and subsequently admitted to the psychiatric unit following a
failed suicide attempt. Plaintiff had found her husband lying on the garage floor with the
car running and a hose leading from the tail pipe to his face.
{¶17} Upon admission, Yurkowski was diagnosed with major depression, severe
and recurring; psychosis and bipolar disorder were ruled out at that time. It was noted
in his admission records that administrative duties had recently been added to his
workload at UH which reportedly caused added stress. Dr. Curell’s assessment and
treatment plan included such medications as the anti-depressant, Effexor, both Ativan
and Klonopin for anxiety, Ambien for sleep, and both group and individual
psychotherapy. It was later determined that Yurkowski did not respond well to group
therapy and that course of treatment was abandoned.
{¶18} Yurkowski did not experience the type of recovery he had enjoyed following
the 2001 hospitalization. In fact, a few months later, Yurkowski was readmitted for two
days of inpatient treatment. Yurkowski was back at the UH psychiatric unit again on
October 4, 2004, after taking an overdose of Klonopin. Dr. Curell diagnosed major
depression, severe and recurring and he identified both Yurkowski’s employment and
family issues as major stressors in Yurkowski’s life. Yurkowski was placed on suicide
precautions upon admission.
{¶19} After a few days of inpatient treatment, Yurkowski reported an
improvement in his mood. Dr. Curell was skeptical about Yurkowski’s reported
improvement as he felt that Yurkowski’s subjective assessment was at odds with the
objective evidence. It was noted that Yurkowski was not taking his Effexor on a regular
basis due to complaints of sleeplessness and that he had developed an obsessive-
compulsive disorder. Yurkowski was released from UH on October 7, 2004, after
promising Dr. Curell he would alter his work duties and take his prescribed medication.
During the course of Yurkowski’s treatment, Dr. Curell was in contact with Yurkowski’s
supervisor in an effort to decrease work-related stress.
{¶20} On November 16, 2004, Yurkowski attempted to take his life by carbon
monoxide poisoning. Upon his admission to UH, Yurkowski was tearful and expressed
thoughts of suicide either by drug overdose or carbon monoxide poisoning. The
diagnosis remained major depression, severe and recurring. Dr. Curell noted that
Yurkowski had difficulty regulating his sense of self-esteem and that his job and family
continued to be major stressors in his life. He was discharged on November 17, 2004.
{¶21} Dr. Curell subsequently added Cymbalta to Yurkowski’s medication
regimen on December 10, 2004, in order to augment existing pharmacological
treatment of depression. However, Yurkowski was back in the UH psychiatric unit on
December 12, 2004, complaining of depression, with suicidal ideation and recurring
crying spells. Yurkowski told Dr. Curell that he believed the Cymbalta was the source of
his depressed mood and Dr. Curell advised Yurkowski to discontinue the medication.
During his five-day stay at UH, Yurkowski continued to suffer crying spells, he was
uncooperative with staff and attempted to escape. When Yurkowski was discharged on
December 17, 2004, he was still considered a suicide risk.
{¶22} Only two days passed before Yurkowski again found himself in the UH
psychiatric unit. Dr. Curell’s December 20, 2004 admission note contains observations
of inergea, anhedonia, and issues with work and family. During his 23-day stay at UH,
in addition to medication and psychotherapy, Yurkowski underwent a course of seven
ECT sessions, all in an effort to treat his seemingly intractable depression.
{¶23} A resident’s note dated January 8, 2005, mentions that Yurkowski was
agitated over missing work and he remained suicidal, but that he had contracted for
safety, which means that he agreed to seek help before attempting suicide. Two days
later Yurkowski reported that his level of depression was at a five on a ten point scale
and that he wished to be discharged. Yurkowski was discharged the next day after
reporting his depression had decreased to 3 out of 10 and denying any suicidal ideation.
Yurkowski’s discharge summary was completed by Dr. Dressler who noted that
Yurkowski was “not acutely suicidal.”
{¶24} Yurkowski was again admitted to the UH psychiatric unit on January 22,
2005, after ingesting a combination of drugs in yet another failed attempt at suicide.
Yurkowski required several days of medical detoxification on this occasion before being
transferred to the psychiatric unit. At this stage, Dr. Curell’s level of concern for
Yurkowski’s safety was heightened and he elected to seek an order of involuntary
commitment to a residential psychiatric facility. Yurkowski was subsequently placed on
a 72-hour hold based on Dr. Curell’s representation to the probate court that Yurkowski
was a danger to himself and in need of hospitalization.
{¶25} A January 26, 2005 progress note indicates that Yurkowski felt better than
ever and that his employer had agreed to let him work on a part-time basis to relieve his
stress. Yurkowski was released the next day. However, when Yurkowski returned to
UH on January 31, 2005, Dr. Curell called upon Dr. Paul Keck for a second opinion
regarding a course of treatment. Dr. Keck subsequently reviewed Yurkowski’s mental
health file and conducted a personal one-hour session with Yurkowski after which he
issued a one-page summary of his findings and recommendation. Dr. Keck concurred
with Dr. Curell’s diagnosis of major depression, severe and recurring, and he agreed
with Dr. Curell’s decision to rule out bipolar 2 disorder. Although Dr. Keck
recommended that Dr. Curell alter some of Yurkowski’s medications, he did not
recommend that Yurkowski be confined to an inpatient facility pursuant to an involuntary
commitment. Yurkowski was subsequently discharged from UH on February 5, 2005.
{¶26} The very next day, Yurkowski was brought back to the UH emergency
room after taking an overdose of lithium during a panic attack. In the course of a two-
day medical detoxification, Yurkowski left the emergency room without permission and
he was subsequently discovered back at the UH pharmacy. He was immediately taken
to the psychiatric unit for what was to be his last admission. Upon admission, Dr. Curell
discontinued the lithium trial, started Yurkowski on Parnate, a mood-stabilizing drug,
restricted Yurkowski to his unit and once again initiated the process of involuntary
commitment.
{¶27} By February 11, 2005, Yurkowski was extremely depressed, “non-
compliant with conversation,” and suicidal. On February 18, 2005, Yurkowski related
that plaintiff had decided to divorce him and that he would not be permitted to return
home upon his release. Dr. Curell authorized Yurkowski to leave the facility on
February 25, 2005, so that he could secure a place to live upon his release. When
Yurkowski returned to UH he reported that “he was able to find an apartment.”
{¶28} On March 2, 2005, Yurkowski was served with divorce papers and by
March 4, 2005, had “de-compensated” to the point where Dr. Curell believed he was
acutely dangerous to himself. Dr. Curell ordered that Yurkowski be placed in restraints
and he added a beta blocker to Yurkowski’s medication with the hope of preventing
another panic attack. At this juncture, Dr. Curell was convinced that Yurkowski needed
to be transferred to Summit Behavioral Health Center (Summit); that he would not be
released to his new apartment. The progress notes are replete with entries such as:
“will go to Summit when bed available” which is noted on March 7, 2005, March 10,
2005, March 11, 2005, and March 13, 2005; and “awaiting evaluation and approval of
transfer,” which is noted on March 14, 2005, March 15, 2005, and March 17, 2005.
However, by March 18, 2005, the records suggest that Dr. Currell was observing
improvements in Yurkowski’s condition that caused him to reconsider an involuntary
commitment and to ultimately release Yurkowski on March 22, 2005. It is this decision
that plaintiff believes was the critical error which led to Yurkowski’s death.
{¶29} Plaintiff relies on the expert testimony of Robert P. Granacher, M.D., in
support of the wrongful death claim. Dr. Granacher holds a medical degree from the
University of Kentucky and he is licensed to practice medicine and psychiatry in Ohio.
He is currently self-employed at Saint Joseph’s Health Care Systems. Dr. Granacher
admitted that approximately 40% of his professional time is devoted to his work as an
expert medical consultant and witness and that his income from expert consulting
services far exceeds his clinical income. Dr. Granacher expressed numerous criticisms
of Dr. Curell’s treatment of Yurkowski, most of which had little to do with the ultimate
outcome of this case. Indeed, while Dr. Granacher delineated nine separate criticisms,
the court will focus on his criticism of Dr. Curell’s decision to release Yurkowski on
March 22, 2005.
{¶30} Dr. Granacher testified that the standard of care in such a case is for the
psychiatrist to perform a suicide risk assessment and to memorialize such assessment
in a document which becomes part of the patient’s medical record. Dr. Granacher
opined that Dr. Curell either failed to perform a suicide risk assessment or failed to
adequately document such assessment prior to discharging Yurkowski from UH on
March 22, 2005. Dr. Granacher further opined that had Dr. Curell performed a suicide
risk assessment, Yurkowski would not have been discharged on March 22, 2005, and
would not have committed suicide on April 18, 2005.
{¶31} “[A]n involuntary civil commitment of an individual constitutes a significant
deprivation of liberty * * *.” In re Miller (1992), 63 Ohio St.3d 99, 101, citing Addington v.
Texas (1979), 441 U.S. 418, 425; In re Burton (1984), 11 Ohio St.3d 147, 151.
Nevertheless, under R.C. 5122.01(B) a “[m]entally ill person subject to hospitalization by
court order” means a mentally ill person who, because of the person’s illness: “(1)
Represents a substantial risk of physical harm to self as manifested by evidence of
threats of, or attempts at, suicide or serious self-inflicted bodily harm * * *.”
{¶32} In Littleton, supra, the Ohio Supreme Court explained the concept of “‘good
faith, independence and thoroughness’ as it relates to a psychotherapist’s decision not
to commit a patient. * * * Factors in reviewing such good faith include the competence
and training of the reviewing psychotherapists, whether the relevant documents and
evidence were adequately, promptly and independently reviewed, whether the advice or
opinion of another therapist was obtained, whether the evaluation was made in light of
the proper legal standards for commitment, and whether other evidence of good faith
exists.” Id. at 96, quoting Currie v. United States (M.D.N.C. 1986), 644 F. Supp. 1074,
1083.
{¶33} Dr. Curell is an Associate Professor of Clinical Psychiatry at the UC
College of Medicine, and he is an attending physician on the inpatient adult psychiatric
unit at UH. He is board certified in adult psychiatry. He is also employed by a private
medical provider known as Professional Psychological Services Incorporated (PPSI)
and he has an ownership interest in PPSI. Based upon Dr. Curell’s credentials including
his clinical experience with suicidal patients, the court finds that he is both a competent
and well-trained psychiatrist.
{¶34} The evidence establishes that Yurkowski’s relative risk of suicide was
assessed by Dr. Curell in consultation with Yurkowski’s other mental health providers
and practitioners on a daily basis during his final admission to the UH psychiatric unit.
The medical records from Yurkowski’s last admission are replete with reference to
Yurkowski’s varying degrees of suicidal ideation. Indeed, the notation “plans to commit
suicide when he leaves the hospital” appears in the records on February 19, 2005,
“acutely dangerous” on March 4, 2005, “denies suicidal ideation” on March 7, 2005, and
“no acute suicidal ideation” on March 17, 2005.
{¶35} Dr. Granacher believed, however, that a proper suicide risk assessment
requires the psychiatrist to expressly address a number of specific risk factors and to
weigh such factors against the benefits the patient will realize as a result of a discharge.
Dr. Granacher’s review of Yurkowski’s medical records did not reveal any specific
document memorializing a suicide risk assessment on any of the ten instances in which
Yurkowski was admitted with suicidal ideation, including his final admission on February
8, 2005. With regard to Yurkowski’s final discharge on March 22, 2005, Dr. Granacher
surmised from the absence of such a document that a suicide risk assessment was not
performed. He then concluded that Dr. Curell breached the standard of care when he
released Yurkowski to his apartment on March 22, 2005. He further opined that such
failure was the proximate cause of Yurkowski’s suicide on April 18, 2005.
{¶36} Defendant’s expert, Mark Schecter, M.D., is board certified in adult
psychiatry. He is the Chairman of the Department of Psychiatry at North Shore Medical
Center in Salem, Massachusetts, and an instructor of psychiatry, including a course in
suicide risk assessment, at Harvard Medical School. Dr. Schecter is a member of a
professional association known as the Boston Suicide Study Group and he has
authored or co-authored published articles regarding suicide risk assessment and the
treatment of suicidal patients.
{¶37} According to Dr. Schecter, there is no checklist or equation that must be
used in performing a suicide risk assessment and such an assessment need not be
memorialized in a single document or record. Rather, a proper assessment requires the
clinician to consider both objective and subjective factors; that available measurable
data must be considered along with the cognitive and experiential. In his review of the
medical records of Yurkowski’s final hospitalization, Dr. Schecter found evidence that a
suicide risk assessment was being performed on a daily and continuing basis, and he
opined that Dr. Curell complied with the standard of care in performing a suicide risk
assessment of Yurkowski during his final UH admission in March 2005.
{¶38} Dr. Curell acknowledged that he could have done a more thorough job of
documenting each of the suicide risk assessments he performed. However, even Dr.
Granacher acknowledged that a failure of proper documentation is rarely the
responsible cause of the death of a psychiatric patient; rather, it is an indicia of the
quality of care. In this instance, given the fact that Dr. Curell saw Yurkowski on a daily
basis throughout his final admission, including the day of his discharge, the court is
persuaded that the lack of documentation was not a substantial factor in the outcome.
{¶39} Dr. Curell testified that after weighing all the relevant factors, and in light of
Yurkowski’s recent improvement, he decided to give Yurkowski one more chance to
make it on his own in the community before confining him to an institution. In Dr.
Curell’s opinion, committing Yurkowski at that point in time would have been so
devastating to his self- esteem that he would have never recovered. He testified that it
was one of the most difficult decisions he has ever had to make in his professional
career and that even after making the decision he remained “wary” of discharging
Yurkowski. Indeed, the court finds that Dr. Curell’s statement to Yurkowski that he was
“sticking his neck out” by discharging him, evidences the degree of difficulty involved in
the decision rather than the degree of fault as plaintiff now contends.
{¶40} Moreover, in determining defendant’s potential liability for Yurkowski’s
suicide, the question is not whether, in hindsight, Dr. Curell’s discharge decision was
correct. The legal standard requires the court to determine whether Dr. Curell exercised
his professional judgment in good faith when he decided to release Yurkowski to his
apartment. Indeed, “[w]ithin the broad range of reasonable practice and treatment in
which professional opinion and judgment may differ, the therapist is free to exercise his
or her own best judgment without liability; proof, aided by hindsight, that he or she
judged wrongly is insufficient to establish negligence.” Estates of Morgan v. Fairfield
Family Counseling Ctr., 77 Ohio St.3d 284, 306, 1997-Ohio-194, quoting Tarasoff v.
Regents of Univ. of California (1976), 17 Cal.3d 425, 438.
{¶41} On cross-examination, Dr. Granacher acknowledged that involuntary
commitment of a patient has drawbacks such as the loss of the ability to work, and the
social stigma that attaches to such a patient. He also agreed that suicide risk
assessment is one of the more difficult tasks facing a clinical psychiatrist and that
suicide cannot be predicted with certainty.
{¶42} Dr. Schecter conceded that only two or three percent of suicides occur in a
hospital setting, and that Yurkowski likely would not have committed suicide on April 18,
2005, had he been sent to Summit on March 22, 2005. However, Dr. Schecter also
testified that there is no evidence that long term hospitalization prevents suicide.
{¶43} It is of some significance to the court that Yurkowski did not commit suicide
immediately after his release on March 22, 2005, or even within a few days thereafter.
As noted above, there were a number of occasions when Yurkowski returned to UH just
days or hours after being discharged, either after having attempted suicide or having
manifested intentions of doing so. In this instance, after being discharged on March 22,
2005, Yurkowski attended four scheduled outpatient sessions with Dr. Curell. The
evidence also shows that Yurkowski had dinner with family on the night of April 17,
2005, and that he was observed jogging in the neighborhood just hours prior to his
suicide.
{¶44} The evidence establishes that Dr. Curell is a well educated, competent
psychiatrist, that he had significant experience in the treatment of suicidal patients, that
he promptly and independently reviewed all relevant documents regarding Yurkowski’s
case, that he sought the advice or opinion of another psychiatrist, and that he
understood the legal standards for commitment in Ohio. In the final analysis, the weight
of evidence convinces the court that Dr. Curell did, in fact, exercise his professional
judgment in good faith when he elected to discharge Yurkowski on March 22, 2005.
{¶45} Dr. Granacher suggested Dr. Curell’s professional judgment was
influenced by the impermissible boundary violation with Yurkowski. He explained that
where a psychiatrist and his patient develop a close relationship, the independent
professional judgment and decision making of the psychiatrist is affected. Plaintiff relies
upon the fact that Yurkowski was first admitted to UH under a pseudonym in 2000, and
the fact that Yurkowski and Dr. Curell worked for the same employer as proof of a
boundary violation.
{¶46} The court does not believe that Dr. Curell’s professional judgment was
influenced by the fact that Yurkowski was employed by UH. Rather, the court finds that
Yurkowski’s knowledge of, and experience with the mental health system, enabled him
to say and do whatever was necessary to secure his release from the hospital and that
he may have been able to achieve such a result even though it may not have been in
his own best interest. Dr. Curell testified that he was aware of Yurkowski’s tendency to
minimize his complaints and exaggerate his improvement when he wished to be
released, and that Dr. Currell took this fact into consideration when making professional
judgment. The medical records corroborate Dr. Curell’s testimony. Thus, the court
does not believe Dr. Curell’s professional judgment was impacted by an impermissible
boundary violation.
{¶47} Turning to Dr. Granacher’s other criticisms of Dr. Curell, it was Dr.
Granacher’s belief that Yurkowski’s condition was misdiagnosed; that Yurkowski
suffered from bipolar disorder type 2. However, Dr. Schecter stated that his review of
Yurkowski’s records did not reveal any deviation from the standard of care in the
diagnosis of his mental illness. Moreover, Dr. Keck, who Dr. Granacher referred to as
an expert in the research of bipolar disorder, agreed with Dr. Curell’s assessment that
Yurkowski did not suffer from bipolar disorder.
{¶48} Dr. Granacher also criticized Dr. Curell for allowing Yurkowski to return to
work at the UH pharmacy where he would have access to dangerous drugs. However,
as is evident from the medical records and the other expert testimony, Yurkowski
became agitated when he was not permitted to work and the court is persuaded by Dr.
Curell’s testimony that the best course of treatment was to negotiate work
accommodations that would reduce his stress rather than to prohibit him from working.
Based upon the evidence, the court finds that Dr. Curell met the standard of care
regarding this aspect of Yurkowski’s treatment.
{¶49} Dr. Granacher was also critical of Dr. Curell’s decision to prescribe
medication in quantities which would permit Yurkowski to commit suicide by intentional
overdose. Although the evidence establishes that several of Yurkowski’s suicide
attempts were by way of his own prescribed medication, either alone or in combination
with over-the-counter medications and/or carbon monoxide poisoning, the court is not
persuaded that Dr. Curell violated the standard of care in regard to Yurkowski’s
medication. Indeed, in Dr. Schecter’s opinion, the option of requiring Yurkowski to
return to Dr. Curell’s office on a daily basis to obtain medication was impractical under
the circumstances and unlikely to achieve the desired result.
{¶50} In the final analysis, the court finds that the testimony of Dr. Curell and Dr.
Schecter was much more persuasive than that of Dr. Granacher. Both Drs. Curell and
Schecter spend a great deal more time in the clinical practice of psychiatry and
psychopharmacology than Dr. Granacher. Additionally, the court notes that portions of
Dr. Granacher’s testimony simply do not comport with the evidence in this case.
{¶51} For example, Dr. Granacher claimed that ECT is not an effective treatment
for bipolar disorder, a claim that Dr. Schecter strongly disagreed with and which Dr.
Curell characterized as “patently false.” Dr. Granacher also criticized Dr. Curell for
admitting Yurkowski to UH under a pseudonym in 2000, when the evidence established
that Dr. Curell had nothing to do with such a decision. Dr. Granacher also faulted Dr.
Curell for not noting Yurkowski’s failure to comply with his lithium prescription during his
January 22, 2005 admission where the evidence establishes that lithium had not been
prescribed. In short, the testimony of Dr. Granacher was not particularly persuasive in
this matter.
{¶52} Moreover, even if the court were to agree with each of the complaints
levied against Dr. Curell by Dr. Granacher, the evidence does not support a finding that
the suggested alternative would have made any difference in the outcome. For
example, Dr. Granacher could not say that the diagnosis and treatment plan he
recommended would have either cured Yurkowski of his depression and suicidal
ideation or prevented his suicide. Yurkowski suffered from severe, recurring depression
which proved to be resistant to medication, psychotherapy, and ECT. Plaintiff has not
proven by the greater weight of the evidence either that Dr. Curell failed to exercise his
professional judgment, in good faith, when he discharged Yurkowski from UH on March
22, 2005, or that Dr. Curell’s treatment of Yurkowski’s mental illness in the weeks and
months prior to his suicide failed to meet the generally accepted standard of care.
Plaintiff also failed to show that any failure of due care on the part of Dr. Curell was the
proximate cause of Yurkowski’s death by suicide on April 18, 2005. Accordingly,
judgment shall be rendered in favor of defendant.
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
SHARON YURKOWSKI, Admr., etc., et al., Case No. 2007-04311
Plaintiffs,
v. Judge Alan C. Travis
UNIVERSITY OF CINCINNATI,
Defendant. JUDGMENT ENTRY
{¶53} 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.
_____________________________________
ALAN C. TRAVIS
Judge
cc:
Anne B. Strait Mitchell W. Allen
Assistant Attorney General 5947 Deerfield Blvd., Suite 201
150 East Gay Street, 18th Floor Mason, Ohio 45040-2540
Columbus, Ohio 43215-3130
Filed October 6, 2011
To S.C. reporter November 18, 2011