Vactor v. Franklin Blvd. Nursing Home, Inc.

[Cite as Vactor v. Franklin Blvd. Nursing Home, Inc., 2021-Ohio-945.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
WILLIAM VACTOR, INDIVIDUALLY,
& AS ADMR., ETC., :
Plaintiff-Appellant, :
No. 109708
v. :
FRANKLIN BLVD. NURSING HOME,
INC., ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: March 25, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-17-876920
Appearances:
Goldstein & Goldstein Co., L.L.C., Michael D. Goldstein,
and Brandon J. Harris, for appellant.
Bonezzi Switzer Polito & Hupp Co., L.P.A., Bret C. Perry,
and Brian F. Lange, for appellee Jennifer Saenz, CNP.
Lewis Brisbois Bisgaard & Smith, L.L.P., Thomas P.
Mannion, Thomas H. Terry, III, and Daniel A. Leister, for
appellees Franklin Boulevard Nursing Home, Inc.,
Franklin Plaza Extended Care, and Legacy Health
Services.
ANITA LASTER MAYS, P.J.:
Appellant William Vactor, individually, and as administrator of the
estate of Regina Vactor (“Vactor”), challenges the trial court’s judgment entry
granting summary judgment on its claims for wrongful death, survivorship, and
violation of Ohio’s Nursing Home Patients Bill of Rights. After a thorough review of
the law and facts, we reverse the judgment of the trial court and remand for further
proceedings.
I. Factual and Procedural History
The decedent, Regina Vactor (“Regina”), was a resident of appellee
Franklin Plaza Nursing Home (“Franklin Plaza”) for nearly two years. On June 9,
2016, she was sent to the psychiatric emergency room at St. Vincent’s Hospital as a
result of concerns about combative behavior and a possible altered mental state.
Regina was also lethargic and physically unstable.
At the hospital, the staff observed Regina for several hours and obtained
lab work. The lab results were ultimately normal, and the hospital staff determined
that Regina was medically stable but was having a psychotic episode. Regina was
thus returned to Franklin Plaza the following morning, June 10, 2016.
Throughout the day of June 10, Regina continued to demonstrate
lethargy and confusion and placed herself on her bedroom floor. Nurse Elizabeth
Grandee (“Grandee”) was responsible for Regina’s care during the June 10th day
shift. Grandee noted that Regina seemed unable to complete a thought. She asked
appellee Jennifer Saenz, CNP (“Saenz”), to examine Regina and also asked Saenz if
Regina could be sent back to the emergency room. According to Grandee, Franklin
Plaza’s unwritten policy was that nurses were not permitted to send residents to the
emergency room due to the transport fees.
After examining Regina, Saenz determined that there was nothing
medically that would require Regina to be sent again to the hospital. Saenz ordered
bloodwork, but it was never completed due to Regina being uncooperative. Saenz
directed Grandee to “wait it out another day.”
In the evening of June 10, 2016, Regina was still lethargic, refusing
medications, and experiencing mental status changes. The Franklin Plaza nurses
attempted to calm her by injecting her with Lorazepam twice, which causes
drowsiness.
The following day, June 11, 2016, Grandee was again the nurse in charge
of Regina’s care and was also acting as the facility supervisor. Regina was acting
aggressive and was medicated with Ativan several times. She again placed herself
on her bedroom floor and refused to get up. In addition, she did not eat or drink
anything all day. Her speech was unclear, and she never opened her eyes that day.
Grandee last checked on Regina around 5:00 p.m. and found her
awake, lying on her right side on the floor. Grandee inquired as to whether Regina
wanted to come to dinner or have a drink, and Regina told her to leave her alone.
Grandee then left. Around this same time, STNA Makia Jones noticed that Regina’s
breathing was labored and thought perhaps her nose was blocked. STNAs Tammy
Mundy and Isabel Huff thought that she should go to the emergency room.
Grandee requested multiple times that Saenz authorize sending Regina
to the hospital but was refused each time. Grandee also asked the facility’s director
of nursing, who deferred to Saenz.
Approximately one hour later, Vactor arrived at the nursing home,
found his mother face down on her bedroom floor, and realized she was not
breathing. 911 was called, and EMTs arrived, but Regina was unable to be
resuscitated. She was taken to the hospital and pronounced dead.
An autopsy was requested but never performed. Cuyahoga County
Deputy Medical Examiner Dan Galita, M.D., completed the death certificate based
upon a review of Regina’s medical records. The cause of death was listed as epileptic
seizure, and hypertensive cardiovascular disease was cited as another significant
condition contributing to death but not resulting in the underlying cause.
Vactor filed suit, alleging wrongful death and survivorship claims
against Franklin Boulevard Nursing Home, Inc., Franklin Plaza Extended Care, and
Legacy Health Services (“the Franklin appellees”) sounding in negligence and for
violations of Ohio’s Nursing Home Patients Bill of Rights, R.C. 3721.17(I), against
Franklin Plaza. Vactor later amended his complaint keeping the same claims but
adding Saenz as a defendant.
Following discovery, the Franklin appellees filed a motion for
summary judgment, focusing solely on the causation element of Vactor’s medical
negligence claim. Specifically, appellees asserted (1) that Vactor’s expert, Dr. Stall,
failed to establish cause of death to a reasonable degree of medical certainty; and
(2) that Vactor cannot overcome the presumption that the medical examiner’s cause
and manner of death are legally conclusive. Saenz filed her own motion arguing that
Vactor did not present expert testimony regarding the cause of Regina’s death,
which is fatal to Vactor’s claim. Saenz further contends that the intervening and
superseding act of negligence by the Franklin appellees proximately caused Regina’s
death, and she is entitled to judgment as a matter of law.
In his briefs in opposition, Vactor argued that he had produced
sufficient evidence in support of his claim in that his expert, Dr. Stall, stated the
causation and cause of death of the decedent to a reasonable degree of medical
certainty. Further, Vactor contends that, through Dr. Stall’s testimony and expert
report, he presented sufficient evidence to overcome the presumption of the validity
of the medical examiner’s cause-of-death determination.
The trial court granted the Franklin appellees’ and Saenz’s motions,
finding that Vactor did not establish that the Franklin appellees or Saenz breached
any standard of care of the medical community. Further, the court held that Vactor
offered no expert testimony that established a direct causal connection between the
alleged negligent acts and Regina’s death. Vactor then filed the instant appeal,
raising two assignments of error for our review:
I. The trial court erred in granting summary judgment for Defendants
Franklin Boulevard Nursing Home, Inc., Franklin Plaza Extended Care
and Legacy Health Services.
II. The trial court erred in granting summary judgment for Defendant
Jennifer Saenz, CPN.
II. Law and Analysis
A. Standard of Review
We review an appeal from summary judgment under a de novo
standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d
241 (1996); Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585,
706 N.E.2d 860 (8th Dist.1998). In Zivich v. Mentor Soccer Club, 82 Ohio St.3d
367, 369-370, 696 N.E.2d 201 (1998), the Supreme Court of Ohio set forth the
appropriate test as follows:
Pursuant to Civ.R. 56, summary judgment is appropriate when (1)
there is no genuine issue of material fact, (2) the moving party is
entitled to judgment as a matter of law, and (3) reasonable minds can
come to but one conclusion and that conclusion is adverse to the
nonmoving party, said party being entitled to have the evidence
construed most strongly in his favor. Horton v. Harwick Chem. Corp.[,
73 Ohio St.3d 679, 653 N.E.2d 1196 (1995)], paragraph three of the
syllabus. The party moving for summary judgment bears the burden of
showing that there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law. Dresher v. Burt[, 75 Ohio St.3d
280, 292-293, 662 N.E.2d 264 (1996)].
Once the moving party satisfies its burden, the nonmoving party “may
not rest upon the mere allegations or denials of the party’s pleadings, but the party’s
response, by affidavit or as otherwise provided in this rule, must set forth specific
facts showing that there is a genuine issue for trial.” Civ.R. 56(E); Mootispaw v.
Eckstein, 76 Ohio St.3d 383, 385, 667 N.E.2d 1197 (1996). Doubts must be resolved
in favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-
359, 604 N.E.2d 138 (1992).
B. The Franklin Appellees’ Motion for Summary Judgment
In his first assignment of error, Vactor argues that the trial court erred
in granting summary judgment in favor of appellees. Specifically, Vactor makes the
following arguments: (1) Vactor presented sufficient evidence for jury consideration
of his medical negligence claims against appellees; (2) the trial court did not apply
the appropriate standard of review for summary judgment review of expert
opinions; and (3) the trial court erred when it granted summary judgment on the
issue of standard of care, which was not briefed or argued by appellees in their
motion.
“To prevail on a claim of medical malpractice, a plaintiff must
establish through expert testimony the acceptable medical standard of care, the
defendant’s breach of that standard, and that the breach proximately caused the
plaintiff’s injuries.” Schura v. Marymount Hosp., 8th Dist. Cuyahoga No. 94359,
2010-Ohio-5246, ¶ 27, citing Bruni v. Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673(1976).
As it relates to causation, the general rule that “‘the plaintiff must
prove causation through medical expert testimony in terms of probability to
establish that the injury was, more likely than not, caused by the defendant’s
negligence.’” Drew-Mansfield v. MetroHealth Med. Ctr., 8th Dist. Cuyahoga No.
102254, 2015-Ohio-3033, ¶ 15, quoting Wilson v. Kenton Surgical Corp., 141 Ohio
App.3d 702, 705, 753 N.E.2d 233 (3d Dist.2001), citing Roberts v. Ohio Permanente
Med. Group, Inc., 76 Ohio St.3d 483, 668 N.E.2d 480 (1996). Consequently, to
establish proximate cause, a plaintiff is required to introduce evidence
demonstrating that it was a probability the medical staff’s alleged negligence was the
cause of the claimant’s injury. Drew-Mansfield at id., citing Wilson at 705-706.
The Franklin appellees presented the verdict of the medical examiner,
which stated the cause of death as “epileptic seizure with [another] condition of
hypertensive cardiovascular disease.” R.C. 313.19 provides as follows:
The cause of death and the manner and mode in which the death
occurred, as delivered by the coroner and incorporated in the coroner’s
verdict and in the death certificate filed with the division of vital
statistics, shall be the legally accepted manner and mode in which such
death occurred, and the legally accepted cause of death, unless the
court of common pleas of the county in which the death occurred, after
a hearing, directs the coroner to change his decision as to such cause
and manner and mode of death.
In construing the above statute, the Supreme Court of Ohio has held
that “[t]he coroner’s factual determinations concerning the manner, mode and
cause of death, as expressed in the coroner’s report and the death certificate, create
a nonbinding rebuttable presumption concerning such facts in the absence of
competent, credible evidence to the contrary.” Vargo v. Travelers Ins. Co., 34 Ohio
St.3d 27, 516 N.E.2d 226 (1987), paragraph one of the syllabus.
The Franklin appellees contend that Vactor has not presented any
contrary evidence regarding the cause of Regina’s death. Specifically, they assert
that Vactor’s causation expert, Dr. Stall, was unable to identify the cause of Regina’s
death.
Vactor argued in his brief in opposition to the motion for summary
judgment that Dr. Stall disagreed with the cause of death noted by the medical
examiner and that the Franklin appellees’ expert, Dr. Morganstern, also agreed that
an epileptic seizure was unlikely to be the cause of Regina’s death.
The initial expert report provided by Dr. Stall did not opine as to the
causation element. Dr. Stall then submitted an expert report addendum, which
stated as follows:
Based on further review, including review of Dr. Morgenstern’s expert
report, more likely than not [Regina’s] death was not seizure related,
but due to new or pre-existing cardiorespiratory disease.
In addition, based on the post-mortem laboratory analysis, [Regina]
was dehydrated at the time of her death, which more likely than not
also contributed to her death.
Dr. Stall was subsequently deposed and, in response to questioning by
the opposing counsel as to the cause of Regina’s death, he stated that he “[did] not
know the specific disease entity.”
In focusing on the specific medical cause of Regina’s death, the parties
and the trial court neglected to address the actual issue of proximate cause as it
related to the staff of Franklin Plaza.
The establishment of proximate cause through
“medical expert testimony must be by probability. At a minimum, the
trier of fact must be provided with evidence that the injury was more
likely than not caused by defendant’s negligence. See Cooper v. Sisters
of Charity, 27 Ohio St.2d [242,] 252, [272 N.E.2d 97 (1971)]. Opinions
expressed with a lesser degree of certainty must be excluded as
speculative. (Footnote omitted.)”
O’Connor v. Fairview Hosp., 8th Dist. Cuyahoga No. 98721, 2013-Ohio-1794, ¶ 27,
quoting Shumaker v. Oliver B. Cannon & Sons, Inc., 28 Ohio St.3d 367, 369, 504
N.E.2d 44 (1986).
We therefore must evaluate Dr. Stall’s report and deposition
testimony to determine whether it demonstrates proximate cause in terms of “more
likely than not.” In his initial expert report, Dr. Stall concluded with the following
statement:
It is my opinion, within a reasonable degree of medical certainty, that
Ms. Regina Vactor, who was experiencing significant changes from
baseline according to facility staff and family witnesses, was not
transferred to the hospital in a timely basis by facility staff, which more
likely than not contributed to her death on June 11, 2016.
Moreover, at his deposition, Dr. Stall was directly asked by Vactor’s
counsel, “Is it more likely than not in light of the conditions that you saw that had
she been transferred to an acute hospital setting in a timely manner by nursing staff
on June 11th, 2016, that Regina Vactor would have likely had a successful outcome?”
Id. at 111-112. Dr. Stall responded, “I do believe so, yes.” Id.
Dr. Stall further stated that Regina required emergency medical care
on the day of her death and that the “delay in care and in getting her transferred to
the ER more likely than not caused her death.” Id. at 63.
Accordingly, we find that Vactor has submitted sufficient evidence to
establish a jury issue that the failure to send Regina to the hospital caused her death.
The trial court therefore erred in granting summary judgment in favor of the
Franklin appellees. Vactor’s first assignment of error is sustained.
C. Saenz’s Motion for Summary Judgment
In Vactor’s second assignment of error, he argues that the trial court
erred in granting summary judgment in favor of Saenz. Vactor sets forth several
arguments in support of this assignment of error, to wit: (1) he presented sufficient
evidence of his medical negligence claim against Saenz; (2) the trial court did not
apply the appropriate standard of review of the submitted expert opinions; (3) the
trial court granted summary judgment on the issue of standard of care, which was
not argued and/or briefed by the movant; and (4) the trial court improperly refused
to consider the expert report of Carol White, DNP, RN, which had been
authenticated as an exhibit at her deposition and was part of the record in this
matter.
We find this assignment of error has merit for the same reasoning
discussed above. Vactor has submitted sufficient evidence to establish a jury issue
that the failure to send Regina to the hospital, at Saenz’s direction, caused her death.
Accordingly, summary judgment in favor of Saenz was improper, and Vactor’s
second assignment of error is also sustained.
III. Conclusion
The trial court erred in determining that Vactor had failed to provide
sufficient evidence to demonstrate that the actions of the staff of Franklin Plaza,
including Saenz, proximately caused the death of Regina Vactor. Accordingly, we
sustain both of Vactor’s assignments of error.
Summary judgment in favor of the Franklin appellees and Saenz is
reversed, and the case is remanded to the lower court for further proceedings
consistent with this opinion.
It is ordered that appellant recover of appellees 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.
________________________________
ANITA LASTER MAYS, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
MARY EILEEN KILBANE, J., CONCUR