Stanley v. Ohio State Univ. Med. Ctr.

[Cite as Stanley v. Ohio State Univ. Med. Ctr., 2012-Ohio-6351.]
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
ALAN STANLEY, Guardian, etc.
Plaintiff
v.
THE OHIO STATE UNIVERSITY MEDICAL CENTER
Defendant
Case No. 2009-08683
Judge Joseph T. Clark
DECISION
{¶ 1} Plaintiff brought this action against defendant, The Ohio State University
Medical Center (OSUMC), alleging medical malpractice and loss of consortium based
upon medical treatment provided to plaintiff’s wife, Marie Stanley.1 The issues of
liability and damages were bifurcated and the case proceeded to trial on the issue of
liability.
{¶ 2} In March 2007, Marie was treated by Kenneth Parker, M.D., an
otolaryngologist, for complaints of progressive hearing loss and ringing in her right ear.
In June 2007, an MRI confirmed the presence of an acoustic neuroma, a tumor which
originates from the balance nerve. Although acoustic neuromas are typically slow
growing, the tumor can potentially grow large enough to compress the brainstem,
causing symptoms including blindness and hydrocephalus (an accumulation of fluid in
the brain). Dr. Parker referred Marie to Abraham Jacob, M.D., who at the time of
treatment was an assistant professor at The Ohio State University’s department of
Case No. 2009-08683 -2- DECISION
otolaryngology, specializing in cranial based surgery. On June 20, 2007, Marie had a
four-year history of progressive hearing loss in her right ear and Dr. Jacob noted an MRI
showed the presence of an acoustic neuroma.
{¶ 3} Dr. Jacob testified that he informed Marie of the risks and benefits of the
each of the available treatment options; observation with further testing, surgery to
remove the tumor, and radiation treatment. (Defendant’s Exhibit 1.) Marie ultimately
chose to have surgery performed at OSUMC to have the tumor removed. (Defendant’s
Exhibit 2.) On June 16, 2008, plaintiff was admitted to OSUMC where Dr. Jacob
performed the surgery with the assistance of a resident, Agnes Hurtuk (formerly
Oplatek), M.D. The surgery was successfully completed without complication and Marie
was admitted to the surgical intensive care unit (ICU). Dr. Jacob testified that Marie
was “doing well” immediately after surgery and he prescribed pain medication for
expected headaches.
{¶ 4} The following day, Marie was transferred to the main hospital floor. Dr.
Jacob noted that his post operative examination revealed that Marie’s facial nerve
appeared to work well without any sign of compromise. On June 17, 2008, Marie
complained of headaches of varying degree which were effectively controlled with pain
medication. Marie’s vital signs and neurologic status were monitored and determined to
be normal.
{¶ 5} On June 18, 2008, at 1:00 a.m., Marie rated the pain she was experiencing
as a 6 out of 10, with 1 being low and 10 being high.2 Marie was provided pain
medication and at 2:00 a.m. her pain had decreased to 4 out of 10. At approximately
7:30 a.m., Dr. Jacob visited Marie and noted that she was not having any problems and
that she expressed a desire to go home soon. Dr. Jacob testified that the nurses
1
Although the complaint lists Mrs. Stanley’s first name as Maria, medical records and testimony
from her family refer to her as Marie.
2
Unless otherwise noted, all times in this decision refer to June 18, 2008.
Case No. 2009-08683 -3- DECISION
attending to Marie had standing orders to assess her vital signs and neurological
condition every four hours.
{¶ 6} According to the “patient flow sheet” for June 18, 2008, at 8:00 a.m., Marie
complained of nausea and reported her pain as 9 out of 10. (Defendant’s Exhibit 6, p.
82.) Jenny Twomley, RN, gave Marie medication for her nausea and pain. Twomley
testified that the medical records show that plaintiff’s 8:00 a.m. neurological assessment
was normal. At 8:40 a.m., Nurse Twomley returned to give Marie Phenergan, an anti-
nausea medication. Marie received additional medication for nausea at 9:00 a.m.
Twomley testified that during her 9:00 a.m. visit, Marie was neurologically stable and
alert. Twomley noted that Marie responded to the pain medication, reporting 3 out of 10
pain at both 9:00 and 10:00 a.m. By 10:00 a.m., Marie’s nausea had resolved and she
continued to be alert and oriented. According to the medical records, at 10:35 a.m.,
Marie related that her headache pain had increased to 10 out of 10 and, based upon a
standing order, Twomley administered intravenous (IV) morphine for the pain. Twomley
notified Dr. Hurtuk concerning Marie’s headache pain and she continued to monitor
Marie’s condition. Twomley testified that she administered insulin to Marie at 11:15
a.m. as a result of a blood glucose test and that she returned at 11:55 a.m. to give her a
scheduled dose of pain medication. At noon, Marie’s headache pain had decreased to
a reported level of 3 out of 10 and Twomley reported that Marie’s neurologic status
remained normal.
{¶ 7} At 1:00 p.m., Marie told Twomley that she had a 10 out of 10 headache
which was “the worst pain since surgery.” As a result, Twomley notified Dr. Hurtuk
concerning Marie’s status, including her vital signs and neurological condition. Dr.
Hurtuk told Twomley that she intended to check Marie’s head dressing when she
returned from the clinic to make sure that it was not too tight. Dr. Hurtuk testified by
way of deposition that after she received the information related by Twomley, she
notified Dr. Jacob about her conversation with Twomley and she ordered a different
Case No. 2009-08683 -4- DECISION
type of pain medication that would provide relief for a longer period of time. At 1:30
p.m., Twomley noted in the medical records that Marie was sleeping. At 2:00 p.m.,
Twomley performed a scheduled check of Marie’s IV site and Marie reported that her
pain had decreased to 3 out of 10.
{¶ 8} When Twomley returned to administer medications at 2:15 p.m., she
noticed that Marie was drowsy and when she performed a neurologic examination,
Twomley detected left-side weakness in Marie’s grasp. Twomley notified Dr. Hurtuk
and the charge nurse of the change in Marie’s condition. By 2:30 p.m., Twomley
noticed that Marie continued to exhibit weakness in her left grasp. The medical records
show that at 2:50 p.m., Marie received Narcan, a narcotic reversal agent and Twomley
began preparing her for a “stat” CT head scan. Twomley testified that Marie’s vital
signs were stable when the “stat nurse” took her to the CT scan at 3:10 p.m.
{¶ 9} The CT scan and report were complete at 3:25 p.m. and showed evidence
of a large hemorrhage in both the subarachnoid and subdural area of the brain and
hydrocephalus, an abnormal increase in the amount of fluid within the cranial cavity. By
3:50 p.m., Marie had become “non-responsive” and she was intubated and monitored
by John McGregor, M.D., a neurosurgeon. As a result of the CT scan, Dr. McGregor
ordered several tests to prevent secondary injuries. A ventriculostomy was performed
to drain excess spinal fluid from the brain. Dr. McGregor testified that the
ventriculostomy was successful and that the recorded cranial pressure was normal. In
an attempt to locate the source of the bleed, a CT angiogram (CTA) was performed to
detect any abnormal blood vessels or the presence of an aneurysm; however, the test
did not show any such abnormality. Next, an MRV (magnetic resonance venogram)
was performed which did not show any obstruction of the veins that could have caused
the hemorrhage. However, an MRI (magnetic resonance imaging) showed areas of
both brain ischemia, deficient supply of arterial blood, and infarct, dead brain tissue.
Case No. 2009-08683 -5- DECISION
{¶ 10} Dr. McGregor testified, that based upon the test results, he anticipated that
Marie would experience further swelling of the brain and he recommended another
surgery to remove a portion of the skull to allow the cerebellum to expand, to prevent
secondary damage as a result of swelling. At approximately 9:45 p.m., Dr. McGregor
successfully performed the surgery.
{¶ 11} Plaintiff alleges that OSUMC’s medical staff deviated from the accepted
standard of care in that the nursing staff failed to properly respond to Marie’s symptoms
and complaints; there was a delay in performing a CT scan upon detection of changes
in Marie’s neurological condition; and Dr. McGregor failed to timely perform surgery
after he became aware of the hemorrhage.
{¶ 12} In order to prevail on a claim of medical malpractice or professional
negligence, plaintiff must first prove: 1) the standard of care recognized by the medical
community; 2) the failure of defendant to meet the requisite standard of care; and 3) a
direct causal connection between the medically negligent act and the injury sustained.
Wheeler v. Wise, 133 Ohio App.3d 564 (1999); Bruni v. Tatsumi, 46 Ohio St.2d 127(1976). The appropriate standard of care must be proven by expert testimony. Bruni,
supra, at 130. That expert testimony must explain what a medical professional of
ordinary skill, care, and diligence in the same medical specialty would do in similar
circumstances. Id.
{¶ 13} Plaintiff presented the testimony of three experts. Dr. Stephen Bloomfield,
M.D., testified that he is board certified in neurosurgery and an assistant professor of
neurosurgery at Seton Hall University. Dr. Bloomfield explained certain aspects of the
anatomy of the brain, including the difference between the subdural and subarachnoid
spaces. Dr. Bloomfield explained that it is important to know whether the CT scan
showed bleeding in either or both spaces, inasmuch as the location and source of
bleeding is critical in determining the proper course of treatment. According to Dr.
Bloomfield, the CT scan that was complete at 3:25 p.m. showed hydrocephalus and
Case No. 2009-08683 -6- DECISION
subdural bleeding around the cerebellum and brain stem, conditions which required
immediate surgical intervention to prevent damaging compression of the brain. Dr.
Bloomfield testified that the MRI which was performed approximately five and a half
hours later confirmed that the subdural hematoma was getting larger and was located
both around the brain stem and behind the cerebellum. Dr. Bloomfield related that Dr.
McGregor successfully performed decompression surgery by removing a portion of
Marie’s skull to decrease pressure on the brain and allow the cerebellum to expand.
{¶ 14} Dr. Bloomfield opined that the medical records showed that Marie
experienced a slow, progressive, neurologic deterioration. Specifically, Dr. Bloomfield
opined that the nausea and vomiting that Marie experienced in the morning of June 18
was a neurologic symptom which was concurrent with a severe headache and that the
standard of care required defendant’s medical staff to evaluate Marie’s neurological
condition. According to Dr. Bloomfield, Marie’s deteriorating neurologic condition was
consistent with the hemorrhage depicted in both the CT scan and MRI. Dr. Bloomfield
testified that Marie most likely began to experience neurologic deficits at approximately
1:00 p.m., but the medical records do not show an assessment at that time. Dr.
Bloomfield opined that Dr. McGregor deviated from the standard of care by not taking
Marie to surgery within one hour after he received the results of the 3:25 p.m. CT scan
and that the delay in surgery was the proximate cause of Marie’s neurologic injuries.
Dr. Bloomfield testified that the tests that were conducted after the CT scan, including
the MRI, were neither necessary to evaluate Marie’s condition nor required prior to
performing decompression surgery.
{¶ 15} Plaintiff’s radiology expert, Michelle Whiteman, M.D., is a board certified
radiologist with a sub-specialty in neuroradiology. Dr. Whiteman agreed with Dr.
Bloomfield that the CT scan showed subdural bleeding. Dr. Whiteman testified that her
review of both the CT scan and the MRI showed a separation of the subdural and
subarachnoid spaces and that the bleeding was subdural, causing the subarachnoid
Case No. 2009-08683 -7- DECISION
space to become compressed. According to Dr. Whiteman, the subdural blood and
compression moved the cerebellum up and forward such that the flow of cerebral spinal
fluid was obstructed, causing dilated ventricles and hydrocephalus. Dr. Whiteman
testified that the computer generated measurements that were based upon CT scan
images of the brain stem did not show hypodensity. Dr. Whiteman was critical of the CT
scan report in that it refers to subarachnoid rather than subdural blood. Dr. Whiteman
agreed with Dr. Bloomfield’s opinion that the distinction between subdural and
subarachnoid blood is critical in developing a treatment plan. However, on cross-
examination, Dr. Whiteman conceded that the report did refer to a subdural hemorrhage
and that density measurements are not used to make diagnosis in clinical practice.
Furthermore, Dr. Whiteman testified that a CT scan can appear “normal” even though
the patient has an irreversible injury due to infarct. Plaintiff’s nursing expert Melissa
Popovich, R.N., explained the nursing notes in Marie’s medical record. Popovich
testified that Twomley did not adequately document Marie’s changing condition,
particularly the complaints of headache pain and crying. According to Popovich, if
Twomley became aware that Marie had been crying, she should have completed further
assessments, documented her findings in the medical record, and conveyed her
findings to the treating physician. Popovich opined that Twomley should not have
allowed Marie to remain asleep at 1:30 p.m. and that Twomley’s failure to wake plaintiff
and perform a neurologic assessment fell below the standard of care. Popovich further
opined that Twomley should have informed the nursing supervisors that Dr. Hurtuk was
unable to immediately return from the clinic to assess Marie’s headache complaint.
Popovich testified that she did not have any criticism of the conduct of the nursing staff
after Marie’s neurologic deficits were detected at approximately 2:15 p.m.
{¶ 16} Defendant’s first expert, Abraham Jacob, M.D., is board certified in both
otolaryngology head and neck surgery and cranial surgery. Dr. Jacob testified that he
has published and presented numerous articles concerning acoustic neuromas, with an
Case No. 2009-08683 -8- DECISION
emphasis on the management of the condition. At the time of the trial, Dr. Jacob had
performed over 120 acoustic neuroma removal surgeries. Dr. Jacob described the
surgery he performed on Marie and the symptoms that patients who undergo the
procedure typically experience, including hearing loss, dizziness and fairly severe
headache pain. According to Dr. Jacob, the pain that patients experience often
increases as their recovery progresses and they become more active following surgery.
Dr. Jacobs testified that it is common for his patients to report 10 out of 10 headache
pain and that the level of pain often “waxes and wanes” during the recovery period as
adjustments are made in pain control medications. Dr. Jacobs stated that intra cranial
bleeding causes both a severe headache and changes in the patient’s neurologic
status. Dr. Jacobs opined that a severe headache alone does not indicate a head
bleed, that there was no indication of a head bleed immediately following the surgery,
and that the head bleed that Marie experienced was an extremely rare complication.
{¶ 17} Dr. Jacobs recalled examining Marie at approximately 7:30 a.m. on June
18 and he noted that she did not report any problems and expressed a desire to go
home soon. Later that morning, Dr. Jacobs received a call from Dr. Hurtuk who
informed him that Marie reported headache pain, that she was given pain medication,
and that there was no change in her vital signs or neurologic condition. Dr. Jacobs
testified that in the early afternoon, he learned that Marie’s headache had recurred, but
that there was still no change in either her neurologic condition or vital signs. Later in
the afternoon, after Dr. Jacobs was informed that Marie exhibited a neurologic deficit,
he dispatched Dr. Hurtuk to examine her and he traveled to OSUMC where he found
plaintiff awake, but not following conversation. Dr. Jacobs testified that Dr. McGregor
took over care for Marie after the CT scan confirmed that her condition required
neurosurgical attention; however Dr. Jacobs remained present at the hospital
throughout the evening, including when he observed the decompression surgery.
Case No. 2009-08683 -9- DECISION
{¶ 18} Dr. McGregor, the attending neurosurgeon, is board certified in
neurosurgery and his medical training focused on skull based neurosurgery and
aneurysm surgery. Dr. McGregor has published articles on acoustic neuromas, and
both subarachnoid and subdural hemorrhages. During his career, he has treated
several hundred patients with intracranial bleeds, and approximately 150 acoustic
neuroma patients.
{¶ 19} Dr. McGregor became involved with treating Marie after the CT scan was
performed at approximately 3:25 p.m. Dr. McGregor testified that he noted a substantial
hemorrhage in the lower area of the brain, hydrocephalus, and areas of infarct which is
represented as a change in the density of the brain tissue that was likely caused by loss
of blood flow. Dr. McGregor explained that hydrocephalus occurred where blood filled
in the “fluid spaces” of the brain, such that blood clogs the transfer of spinal fluid. Dr.
McGregor opined that Marie’s neurologic deficits were consistent with brain injury
caused by infarct. Dr. McGregor testified that the images of Marie’s brain showed that
blood was present in front of the brain stem, areas where surgeons could not access
the blood in any meaningful way. According to Dr. McGregor, the normal intra cranial
pressure reading obtained during the ventriculostomy showed that there was normal
blood flow to that portion of the brain, supporting his belief that Marie’s coma was
caused by infarct, and not pressure in the brain. Dr. McGregor testified that the results
of both CTA and MRV were negative, showing that neither an abnormal blood vessel
nor a venous occlusion caused the hemorrhage. Dr. McGregor opined that the MRI
confirmed that there was an infarct on the brain and that he recommended surgery to
remove a portion of Marie’s skull to give the cerebellum room to expand and prevent
injury due to swelling.
{¶ 20} Defendant’s surgical expert, Kevin Brown, M.D., is a neurotologist,
specializing in skull-based surgery. Dr. Brown has performed acoustic neuroma surgery
and published multiple articles on the condition. Dr. Brown testified that the vast
Case No. 2009-08683 - 10 - DECISION
majority of patients report significant headaches after acoustic neuroma surgery and
that such headaches can be very severe and occur for a number of reasons. According
to Dr. Brown, a head bleed following acoustic neuroma surgeries is a rare but known
risk of the surgery. Dr. Brown agreed with Dr. McGregor’s opinion that a severe
headache alone, without changes in either vital signs or neurologic condition, does not
warrant performing a CT scan. Dr. Brown explained in detail the information contained
in Marie’s medical records and he noted that Marie did not experience a “sudden onset
headache” in that her reported headache pain fluctuated throughout the morning and
early afternoon on June 18. Dr. Brown opined that his review of the medical records
showed that both the surgeons and medical staff attending to Marie responded
appropriately to her complaints and symptoms. Specifically, Dr. Brown opined that
Marie’s neurologic status at both 10:35 a.m. and 1:00 p.m. was normal, meaning that a
CT scan was not indicated at those times.
{¶ 21} Defendant also presented the testimony of Michael Lipton, M.D., a
neuroradiologist who is board certified in both diagnostic radiology and neuroradiology.
Dr. Lipton is an associate professor of radiology and serves as the Medical Director of
Magnetic Resonance Services for the Montefiore Medical Center. Dr. Lipton also
serves as an attending radiologist at three major New York medical centers, where he
reviews images and diagnoses intracranial bleeds on a daily basis. Dr. Lipton provided
a detailed explanation of the anatomy of the brain, including both the location of the
subdural and subarachnoid areas and the consequences of bleeding in those areas.
Dr. Lipton explained how both subdural and subarachnoid bleeding can cause ischemia
and infarct; injury from a subdural bleed is typically caused by increased pressure on
the brain, whereas ischemic injury from a subarachnoid bleed tends to result from
vasospasm.
{¶ 22} Dr. Lipton reviewed the 3:25 p.m. CT scan and testified that it showed
extensive intracranial bleeding in both the subarachnoid and subdural areas, including
Case No. 2009-08683 - 11 - DECISION
blood near the brainstem. Dr. Lipton opined that much of the bleeding was in an area
that was not safely accessible for surgical removal. According to Dr. Lipton, the CT
scan showed areas of abnormality or ischemia in the brainstem and cerebellum. Dr.
Lipton testified that comparing the CT scan to the subsequent MRI does not reliably
show a progression of damage inasmuch as the more extensive damage shown in the
MRI images is likely related to its ability to detect such damage. Dr. Lipton
acknowledged that the 3:25 p.m. CT scan report did not discuss hypodensity. However,
Dr. Lipton related that abnormalities depicted by hypodensity on a CT scan can appear
“normal” when there is actually irreversible damage because detecting hypodensity is a
subtle finding, and he noted that he had the benefit of knowing the patient’s outcome
when he examined the images.
{¶ 23} Defendant’s neurosurgery expert, Stephen Saris, M.D., has conducted
research on brain tumors, trained in acoustic surgery, and is currently the chief of
neurosurgery at St. Joseph Hospital in Rhode Island. Dr. Saris testified that he has
performed many acoustic neuroma surgeries and that it is common for patients to report
severe headaches, including 10 out of 10 pain, following such surgery. According to Dr.
Saris, the 3:25 p.m. CT scan showed an intracranial hemorrhage, hydrocephalus, and
infarction in areas of both the brainstem and cerebellum. Dr Saris testified that the
images showed a large amount of blood in front of the brainstem, an area of the brain
that cannot be operated on. Dr. Saris opined that a severe 10 out of 10 headache alone
is not a sufficient reason to order a CT scan for a patient who is recovering from brain
surgery. Dr. Saris opined that the tests that were performed after the 3:25 p.m. CT scan
were reasonable and that rushing Marie to surgery prior to receiving the results of those
tests “would have been very poor medical judgment” inasmuch as the cause of the
bleeding had not been determined. Dr. Saris testified that any delay after 3:25 p.m.
“wouldn’t have mattered anyway as she already had an infarct.”
Case No. 2009-08683 - 12 - DECISION
{¶ 24} Finally, defendant presented the testimony of its nursing expert, Jenny
Beerman, R.N., who has written several textbook chapters regarding nursing standards
of care, teaches nurses in a clinical setting, and has over forty years of clinical
experience, including caring for patients recovering from brain surgery and head bleeds.
Beerman testified that she has been trained to recognize the symptoms of a head bleed
which include an increased heart rate and blood pressure, restlessness, decreased
level of consciousness, and neurologic changes such as change in pupils and reflexes.
{¶ 25} Beerman reviewed the medical records and explained in detail the nursing
care that was provided to Marie on June 18. Beerman testified that a 10 out of 10
headache, by itself, does not indicate a head bleed and that the standard of care did not
require Twomley to contact Dr. Hurtuk to report such pain without secondary symptoms
of a head bleed. Beerman opined that Twomley communicated properly with both her
nursing chain of command and the doctors who were treating Marie. According to
Beerman, Twomley conducted timely neurological assessments and properly
documented them in the medical records. Beerman testified that Twomley performed
timely reassessments after she provided Marie with appropriate pain medication.
Beerman opined that, prior to the neurological changes at 2:15 p.m., Twomley had no
reason to suspect that Marie was experiencing a head bleed.
TIMING OF THE HEAD BLEED
{¶ 26} With regard to the timing and cause of the head bleed, plaintiff relies on
the testimony of Dr. Bloomfield who opined that the hemorrhage was caused by the
acoustic neuroma surgery and that intra cranial bleeding began in the morning of June
18. Although plaintiff argues that the head bleed occurred as a result of the vomiting
that Marie experienced in the early morning, Dr. Bloomfield testified that the head bleed
occurred shortly before 10:35 a.m. and he did not suggest that it was either caused or
exacerbated by vomiting. Indeed, Dr. Brown was adamant that the hemorrhage did not
Case No. 2009-08683 - 13 - DECISION
occur in the morning inasmuch as Marie responded to pain medication and her
neurological condition was not consistent with the symptoms exhibited by a patient
experiencing a head bleed. Dr. McGregor also opined that it would be impossible for
Marie to have a normal neurological exam at noon with such a hemorrhage. Drs. Brown
and Saris also testified that if Marie had suffered a head bleed early in the morning, she
would not have been alert and responding to questions or have had a normal
neurological assessment at noon. The medical experts agreed that Marie did not
exhibit other symptoms that are consistent with a head bleed, such as an increased
heart rate and blood pressure. Based upon the evidence, the court finds that Marie did
not have a significant head bleed prior to her noon neurological assessment.
NURSING CARE
{¶ 27} With regard to the nursing care that was provided to Marie, Popovich
criticized defendant’s nursing staff for failing to adequately monitor Marie’s condition
and report her status to the treating physicians. Family members testified that Marie
was crying and screaming in pain at approximately 11:55 a.m. According to plaintiff, the
testimony of the family shows that defendant’s nursing staff both failed to properly
document Marie’s condition and failed to communicate her status to the treating
physicians.
{¶ 28} The medical records reflect that Marie had 10 out of 10 pain at 11:00 a.m.,
that Twomley administered insulin to Marie at 11:35 a.m., and that she returned to
provide pain medication at 11:55 a.m. By noon, Marie reported her pain had decreased
to 3 out of 10, showing that she was responding to the medication, and her neurological
assessment was normal. Twomley explained that every time a nurse interacts with a
patient, the patient is actively assessed. Twomley provided credible testimony that
Marie was not screaming, moaning, or writhing in pain and that such conduct would “get
a room full of people very quickly” and be recorded in the medical records. Although the
Case No. 2009-08683 - 14 - DECISION
court finds that Marie’s family heard her complain of severe head pain, no one from her
family reported to Twomley that she was screaming, moaning, or writhing in pain and
that behavior was not documented in the medical records.
{¶ 29} Plaintiff further asserts that defendant’s medical staff failed to recognize
the significance of the intensity of Marie’s headaches. Plaintiff contends that Marie’s
reports of experiencing 10 out of 10 headache pain and her self-described “worst pain”
headache at 1:00 p.m. should have alerted defendant’s medical staff to the possibility of
a head bleed and that, at a minimum, the standard of care required a CT scan to assess
her condition. Although Dr. Bloomfield testified that 10 out of 10 headaches are rare
following acoustic neuroma surgery and that such headaches alone are sufficient to
warrant a CT scan, he was the only expert to hold that opinion.
{¶ 30} The court finds that plaintiff’s assertion that Twomley failed to recognize
and report “sudden onset” headaches is not supported by the evidence. The evidence
shows that the headaches Marie experienced on June 18 varied in intensity and
responded to medication. All of the medical experts agreed that the level of pain
reported by Marie fluctuated throughout the morning and early afternoon. Dr. Brown
specifically testified that Marie did not have a sudden onset headache.
{¶ 31} Beerman testified at length regarding Twomley’s conduct and the
procedures that defendant’s nurses followed to care for Marie. Beerman testified that,
prior to approximately 2:15 p.m., Twomley had no cause to suspect that Marie was
suffering from a head bleed. Dr. Jacob testified that defendant’s nursing care was
exemplary in both recognizing and reporting changes in Marie’s neurologic condition
and in preparing her quickly for the CT scan. The court notes that Popovich conceded
that defendant’s nursing staff acted appropriately after Marie began to experience
neurologic deficits after 2:15 p.m. Based upon the evidence, the court finds that
the testimony of Nurse Beerman was more credible and persuasive than that of Nurse
Popovich. The court finds that Twomley properly assessed Marie’s response to pain
Case No. 2009-08683 - 15 - DECISION
medication, conducted appropriate neurological assessments, properly documented her
assessments, and communicated relevant information to the treating physicians and her
nursing chain of command. Accordingly, the court concludes that plaintiff failed to
establish that defendant’s nursing staff fell below the standard of care while treating and
attending to Marie.
CT SCAN REVIEW
{¶ 32} Plaintiff contends that defendant’s medical staff “was never called upon to
act with urgency because the [3:25 p.m.] CT scan report was misinterpreted as referring
to only a subarachnoid hemorrhage, with no urgent decompression surgery needed for
a subarachnoid bleed in the brain.” (Plaintiff’s May 31, 2012 brief, p. 6.) According to
plaintiff, the failure to promptly and accurately diagnose Marie’s hemorrhage resulted in
delaying surgical intervention, which resulted in her neurologic injuries. However, Dr.
McGregor provided credible testimony that his review of the CT scan revealed that there
was blood in both the subdural and subarachnoid spaces. Dr. McGregor’s interpretation
of the CT scan with respect to the location of the bleeding was confirmed when he
observed blood in both areas during surgery. Indeed the CT report refers to subdural
hemorrhage and notes that the results of the CT scan were discussed with Dr. Hurtuk.
(Defendant’s Exhibit 12.) Therefore, the court finds that plaintiff’s argument that the
decision to take Marie to surgery was delayed based upon a misunderstanding
regarding the location of the hemorrhage is without merit. Furthermore, Dr. McGregor
testified that he observed “lots of blood everywhere” in both the subarachnoid and
subdural spaces and he visualized changes that were consistent with ischemia and
infarct.
Case No. 2009-08683 - 16 - DECISION
TIMING OF THE SURGERY
{¶ 33} Dr. Bloomfield testified that Marie should have been taken to surgery
within hours after the results of the CT scan showed a subdural hemorrhage and that
failing to do so was the proximate cause of her neurological decline. However, Dr.
McGregor testified that it would have been “very poor medical judgment” to go to
surgery without first performing a ventriculostomy, CTA, MRV, and MRI to determine the
source of the bleeding. Dr. McGregor opined that operating without the test results
would have been “fool-hearted” inasmuch as an undetected aneurysm or malformed
blood vessel could have bled during the operation, causing potentially fatal
complications. Drs. Saris and Lipton also opined that Dr. McGregor’s decision to order
the tests prior to performing decompression surgery was appropriate, timely, and within
the standard of care.
{¶ 34} Dr. McGregor opined that CT scan results showed that foregoing pre-
operative tests and performing surgery earlier would not have resulted in a better
outcome for Marie. As noted above, Dr. McGregor determined that both the CT scan
and MRI revealed areas of infarct and showed that blood was present in regions of the
brain that were not surgically accessible. Dr. McGregor explained that the goal of the
surgery was not to eliminate or reverse damage caused by the head bleed, but to give
the cerebellum room to expand and, thereby, prevent secondary injury due to further
swelling. Dr. McGregor testified that the “damage from this kind of a hemorrhage
happens essentially immediately. There’s already injury to the neurons just because
the blood has spilled up against them.” Dr. Saris also opined that the hemorrhage
caused infarction and that the outcome would have been the same had the
decompression surgery been performed six hours earlier. Furthermore, Drs. McGregor,
Saris, Lipton, and plaintiff’s expert Dr. Whiteman, agreed that blood surrounding the
brain stem could not be safely removed with surgery. Indeed Dr. Saris testified that
such surgery “technically cannot be done.”
Case No. 2009-08683 - 17 - DECISION
{¶ 35} Upon review of all the evidence, the court finds that plaintiff has failed to
prove either that treatment rendered by defendant’s nursing staff fell below the standard
of care or that the timing of Dr. McGregor’s surgery on June 18, 2008, was a deviation
from the standard of care. The court finds that defendant’s medical staff properly
assessed Marie’s condition and that Dr. McGregor ordered appropriate tests to detect
the source of her head bleed before performing successful decompression surgery.
{¶ 36} Plaintiff has asserted a claim for loss of consortium. “[A] claim for loss of
consortium is derivative in that the claim is dependent upon the defendant’s having
committed a legally cognizable tort upon the spouse who suffers bodily injury.” Bowen
v. Kil-Kare, Inc., 63 Ohio St.3d 84, 93 (1992). Since plaintiff has failed to prove his
claims of negligence, the loss of consortium claim must also fail.
{¶ 37} For the foregoing reasons, the court finds that plaintiff has failed to meet
his burden of proof and, accordingly, judgment shall be rendered in favor of defendant.
Case No. 2009-08683 - 18 - 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
ALAN STANLEY, Guardian, etc.
Plaintiff
v.
THE OHIO STATE UNIVERSITY MEDICAL CENTER
Defendant
Case No. 2009-08683
Judge Joseph T. Clark
JUDGMENT ENTRY
{¶ 38} This case was tried to the court on the issues 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
plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of
entry upon the journal.
_____________________________________
JOSEPH T. CLARK
Judge
Case No. 2009-08683 - 19 - DECISION
cc:
Daniel N. Abraham Timothy T. Tullis
David I. Shroyer Traci A. McGuire
536 South High Street Special Counsel to Attorney General
Columbus, Ohio 43215 Capitol Square Office Building
65 East State Street, Suite 1800
Columbus, Ohio 43215-4294
004
Filed October 29, 2012
Sent to S.C. Reporter February 28, 2013