McArthur v. Bowling Green State Univ.

[Cite as McArthur v. Bowling Green State Univ., 2012-Ohio-4000.]
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
JESSICA MCARTHUR, et al.
Plaintiffs
v.
BOWLING GREEN STATE UNIVERSITY
Defendant
Case No. 2010-06559
Judge Clark B. Weaver Sr.
DECISION
{¶ 1} Plaintiffs brought this action alleging medical negligence and loss of
consortium. The issues of liability and damages were bifurcated and the case
proceeded to trial on the issue of liability.1
{¶ 2} In 2005 and 2006, plaintiff Jessica McArthur was a member of the
gymnastics team at defendant Bowling Green State University (BGSU).2 During her
participation on the team, plaintiff suffered from various injuries and ailments which
were treated, in part, by members of BGSU’s athletic department, including athletic
trainers Kim Deaver and Megan Nixon. To help alleviate her symptoms, plaintiff was
provided both prescription and non-prescription nonsteroidal anti-inflammatory
medication (NSAID), including ibuprofen and Celebrex, a prescription drug.
{¶ 3} Plaintiff was also treated at BGSU’s student health center. On February 1,
2005, she was examined by Richard Chapman, M.D. for a rash on her ankle which was
1
Plaintiffs’ February 1, and March 15, 2012 motions to exceed page limitations pursuant to
L.C.C.R. 4(E) are GRANTED instanter.
2
Throughout this decision, “plaintiff” shall refer to plaintiff Jessica McArthur.
Case No. 2010-06559 -2- DECISION
likely related to tape that had been applied to her ankles during gymnastics practice.
Dr. Chapman provided plaintiff with an antihistamine and topical steroid cream and he
instructed her to return within a week if the symptoms had not resolved. During that
visit, Dr. Chapman noted that plaintiff’s blood pressure was 150/80 (mmHg). Plaintiff
did not return to the student health center until December 6, 2005 when she was
examined for a pre-participation physical, during which her blood pressure was 112/64,
well within the normal range.
{¶ 4} On January 26, 2006, plaintiff was examined at the student health center by
Robert Heizelman, M.D. for symptoms including a sore throat. During the examination,
plaintiff’s blood pressure was elevated, 140/100. Dr. Heizelman ordered tests which
provided a complete blood count (CBC), and showed that plaintiff’s symptoms were not
the result of either mononucleosis or streptococcus. Dr. Heizelman prescribed
ibuprofen to treat plaintiff’s sore throat.
{¶ 5} In August 2006, plaintiff attended a pre-participation physical in preparation
for the BGSU gymnastic training and meet season. During the physical examination, a
trainer measured plaintiff’s blood pressure and notified Randy Trimpey M.D., the
attending physician, of the abnormally high reading, 150/112. Dr. Trimpey measured
plaintiff’s blood pressure and when he obtained another high reading, he had her sit for
a few minutes before taking a follow-up reading, which was also elevated. Dr. Trimpey
instructed plaintiff to report to the athletic department in the morning for additional blood
pressure readings. Plaintiff informed her parents of the high blood pressure readings
and they consulted with plaintiff’s primary care physician, Khalida Durrani, M.D.
{¶ 6} Based upon Dr. Durrani’s advice, plaintiff was examined at Wood County
Hospital where she was ultimately diagnosed with kidney failure and transferred to The
Toledo Hospital. Plaintiff was referred to two nephrologists, Allen Flickenger, M.D. and
Syed Abidi, M.D., who each independently confirmed her renal disease. On October
26, 2006, a needle biopsy was performed on plaintiff’s right kidney. A biopsy report
Case No. 2010-06559 -3- DECISION
states that the “final diagnosis” was “Focal global glomerulosclerosis, extensive, with
tubular atrophy and interstitial fibrosis, extensive; Interstitial nephritis, chronic-active;
Arterial and arteriolar sclerosis, moderately severe.” (Joint Exhibit A, page 466.) As a
result of the reduced function of her kidneys, plaintiff underwent a kidney transplant in
December 2006; the kidney was donated by her father, plaintiff James McArthur.
{¶ 7} Plaintiffs assert that the actions of defendant’s employees, Kim Deaver,
Megan Nixon, and Drs. Chapman and Heizelman, breached the applicable standard of
care regarding their treatment of plaintiff and that such breach was the cause of
plaintiff’s renal disease. Specifically, plaintiffs asserts that Deaver and Nixon distributed
Celebrex to gymnasts, including plaintiff, who were not required to see a physician prior
to receiving the prescription medication. Plaintiffs also contend that Drs. Chapman and
Heizelman deviated from the standard of care after plaintiff presented with elevated
blood pressure in that the doctors failed to perform appropriate tests, including
additional serial blood pressure readings.
{¶ 8} “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 (1976), 46 Ohio St.2d 127, 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.
Case No. 2010-06559 -4- DECISION
{¶ 9} Both Deaver and Nixon testified regarding their duties as BGSU gymnastic
trainers and their knowledge of plaintiff’s access to Celebrex. From 2003 through July
2005, Deaver was a graduate assistant at BGSU studying for a masters degree in
developmental kinesiology. Deaver was a trainer for the BGSU gymnastics team from
September through April for both the 2003-2004 and 2004-2005 seasons. Deaver
testified that she did not provide Celebrex to plaintiff and that there would be a record
on plaintiff’s training chart if she had done so. According to Deaver, the only
medications she discussed with plaintiff were plaintiff’s usage of birth control pills and
Lexapro, an anti-anxiety medication.
{¶ 10} Nixon was also a graduate assistant at BGSU studying for a masters
degree in developmental kinesiology during her tenure as a gymnastics trainer. Nixon
worked with plaintiff from August 2005 through April 2006. According to Nixon, she was
directed by the team physician, Jeffrey Noftz, II, M.D., to provide plaintiff with three
packets of Celebrex, each packet contained three pills. Nixon testified that Celebrex
was made available to the gymnasts only by a doctor’s order. In late January or early
February 2006, a meeting was held with the gymnastics team during which team
members were instructed to stop asking for Celebrex.
{¶ 11} Several of plaintiff’s teammates testified regarding the distribution of
Celebrex by BGSU trainers. Jillian Monahan testified that she was a member of the
gymnastics team from 2003-2007 and that she was provided with Celebrex in 2005,
after she asked a trainer for the medication. Monahan testified that she thought the
trainer was authorized by a doctor to dispense the medication. According to Monahan,
plaintiff received Celebrex from Deaver in 2005. Monahan recalled a team meeting in
early February 2006, during which Douglas Boersma, BGSU’s head athletic trainer,
directed the team members not to request Celebrex. Monahan testified that BGSU
employees stopped distributing Celebrex after the meeting. Plaintiff’s former
teammates, Erin Coudriet and Bethany Kenel testified by deposition that they also
Case No. 2010-06559 -5- DECISION
recalled receiving Celebrex from a trainer. However, Coudriet was not aware of plaintiff
receiving Celebrex.
{¶ 12} Plaintiff testified that on more than one occasion, beginning in November
2004, she received Celebrex from her trainers to treat chronic lower-back pain.
According to plaintiff’s BGSU training records, Dr. Noftz examined her and prescribed
Celebrex in January 2006. On cross examination, plaintiff admitted that she was
confused about the dates on which she received Celebrex and she conceded that in her
September 2008 deposition she testified that she began taking Celebrex in November
2005. Plaintiff was also unable to recall when she last took Celebrex; she could not
recall whether she took Celebrex after the February 2006 meeting with Boersma.
Plaintiff was also uncertain about the amount of Celebrex she took; she stated that she
took Celebrex “as needed” when she experienced back pain.
{¶ 13} Plaintiffs presented the testimony of two medical experts. Plaintiffs’ first
expert, Larry Davis, M.D., a board-certified family practice physician, testified as to the
standard of care applicable to Drs. Chapman and Heizelman, BGSU health center
physicians. Dr. Davis testified that a single abnormally elevated blood pressure reading
requires additional serial blood pressure checks to determine whether the abnormal
reading was a “sustained” reading, or a one-time reading. According to Dr. Davis, serial
blood pressure tests are needed to confirm the existence of hypertension, a diagnosis
that may indicate a correctable or preventable medical condition. Dr. Davis testified that
a diagnosis of hypertension would also require blood tests to measure creatinine levels,
ultrasound imaging of the kidneys, and a urine drug screen to determine whether drugs
or alcohol contributed to increased blood pressure. Dr. Davis also opined that the
standard of care required Drs. Chapman and Heizelman to explain the risks and
consequences of her condition.
{¶ 14} Plaintiffs also presented the testimony of Timothy Hammond, M.D., who is
board certified in both a nephrology and internal medicine. Dr. Hammond testified that
Case No. 2010-06559 -6- DECISION
the standard of care required Drs. Chapman and Heizelman to perform follow up blood
pressure tests, conduct a physical examination, order imaging if necessary, and take a
medical history, including use of NSAIDs. Dr. Hammond stated that blood pressure is
classified according to the Joint National Committee on Prevention, Detection,
Evaluation and Treatment of High Blood Pressure (JNC7), which categorizes blood
pressure below 120/80 (systolic/diastolic) as normal. (Plaintiffs’ Exhibit 6.) Dr.
Hammond was particularly critical of Dr. Heizelman for prescribing ibuprofen, an NSAID
medication, knowing that plaintiff’s blood pressure was 140/100. According to Dr.
Hammond, the use of NSAID medications can be a “big problem” for young patients
with hypertension. Dr. Hammond opined that Dr. Heizelman deviated from the
accepted standard of care by not ordering blood tests for BUN and creatinine levels to
evaluate kidney function; the CBC test ordered by Dr. Heizelman did not check kidney
function.
{¶ 15} On the issue of causation, Dr. Hammond testified that plaintiff had a known
allergy to Bextra, an NSAID, and he opined that she likely suffered an allergic reaction
to Celebrex. Dr. Hammond opined that plaintiff’s renal disease was reversible had the
offending allergen been diagnosed and removed in February 2005 when she was
treated by Dr. Chapman. Dr. Hammond had the same opinion as to the January 26,
2006 involvement of Dr. Heizelman, except that “there would have been some small
chronic ailment at that point, but it wouldn’t have affected the long-term outcome.”
(Transcript, page 338.) Dr. Hammond based his opinion on his belief that the allergic
reaction continued to damage plaintiff’s kidneys throughout the time she used NSAIDs,
and eventually resulted in chronic interstitial nephritis, kidney failure, end-stage renal
disease, and the ultimate need for a kidney transplant.
{¶ 16} In response to plaintiffs’ evidence, defendant presented the testimony of
Michael Yaffe, M.D. and Arnold Berns, M.D. Dr. Yaffe is a board-certified internal
medicine physician who has treated students at The Ohio State University student
Case No. 2010-06559 -7- DECISION
health services. Dr. Yaffe explained in detail his procedure for treating a patient with an
isolated elevated blood pressure. Regarding plaintiff’s February 1, 2005 visit to the
BGSU student health clinic, Dr. Yaffe opined that Dr. Chapman properly diagnosed and
treated plaintiff’s dermatitis. Dr. Yaffe opined that an isolated elevated blood pressure
reading does not require repeat testing for an otherwise healthy young patient who does
not exhibit any systemic complaint. In support of his opinion, Dr. Yaffe noted that,
plaintiff had a normal blood pressure reading, 112/64, approximately ten months after
the February 2005 visit, which does not support a diagnosis of hypertension. According
to Dr. Yaffe, plaintiff’s elevated blood pressure on February 1, 2005 was most likely a
“situational rise,” known as “white coat syndrome” which was not indicative of disease.
{¶ 17} With regard to plaintiff’s second visit to the BGSU student health clinic on
January 26, 2006, Dr. Yaffe opined that plaintiff received appropriate treatment for her
sore throat and that her elevated blood pressure on that date was likely caused by a
combination of her use of Nyquil, pain she was experiencing, and her pre-existing
anxiety condition. According to Dr. Yaffe, the elevated eosinophil level that was noted
in the CBC did not show that plaintiff had an allergic reaction inasmuch as her total
white blood count was normal. Dr. Yaffe testified that plaintiff did not exhibit any of the
symptoms of allergic interstitial nephritis at the time of her visit to the BGSU clinic; fever,
back pain, blood in her urine, or difficulty in urination.
{¶ 18} Defendant’s second expert, Dr. Berns, is a board-certified nephrologist, a
clinical professor of medicine at the University of Illinois College of Medicine, and he
assists in writing the board examination for nephrology. Dr. Berns testified that the
results of plaintiff’s kidney biopsy do not show excessive NSAID use. When asked to
assume that plaintiff took Celebrex and ibuprofen for 21 months, as she alleges, Dr.
Berns opined that “those medications played a minimum role, if any role whatsoever, in
the fact of the matter that she developed end-stage kidney failure and needed a kidney
transplant.” (Transcript, page 450.) According to Dr. Berns, plaintiff’s biopsy does not
Case No. 2010-06559 -8- DECISION
show excessive use of NSAIDs. Berns testified that “there has never been a reported
case anywhere in the entire world’s literature of Celebrex causing end-stage kidney
disease.” (Transcript, page 451.) Dr. Berns testified that “acute syndrome” caused by
NSAIDs have certain symptoms and that plaintiff did not show any evidence of such
symptoms. Dr. Berns opined that the cause of plaintiff’s nephrosclerosis was genetic.
Dr. Berns commented on the ultrasound which showed that plaintiff’s kidneys were very
small and he noted that it would take “years” for plaintiff’s kidneys to shrink to that size,
not the period of months asserted by plaintiffs. Dr. Berns opined that even if plaintiff’s
renal disease had been diagnosed earlier, she would not have had a different outcome
due to the chronic nature of her disease.
{¶ 19} The court finds that the testimony of Drs. Yaffe and Berns was more
persuasive than that of Drs. Davis and Hammond. The court was particularly
persuaded by Dr. Bern’s testimony regarding the ultrasound results, the biopsy report,
and the lack of support in medical literature regarding a causal link between Celebrex
and end-stage kidney disease. Dr. Hammond conceded that the nephrologists and
transplant surgeons who treated plaintiff did not suggest that Celebrex was the cause of
plaintiff’s renal disease. Although the court is persuaded that defendant’s employees
distributed Celebrex to plaintiff and other gymnasts without performing both thorough
medical examinations and careful record keeping, the court is convinced by the
evidence that plaintiff’s use of Celebrex was not related to her kidney disease.
Therefore, any negligence by defendant’s employees in distributing Celebrex to plaintiff
was not a proximate cause of her renal disease.
{¶ 20} Furthermore, the court finds that plaintiffs have failed to prove by a
preponderance of the evidence that the standard of care required defendant’s
physicians to perform serial blood pressure tests based upon plaintiff’s clinical
presentation, or that the failure to obtain such was the proximate cause of her renal
disease. Dr. Yaffe provided credible testimony that it is not uncommon for a patient to
Case No. 2010-06559 -9- DECISION
have an isolated elevated blood pressure during a physical examination and that the
treating physician must use clinical judgment to determine whether additional testing is
needed. Indeed, plaintiff had normal blood pressure readings after her visits with both
Drs. Chapman and Heizelman. The greater weight of the evidence shows that Drs.
Chapman and Heizelman met all applicable standards of care in their treatment of
plaintiff and that her clinical presentation did not warrant serial blood pressure checks or
other follow-up testing. Moreover, plaintiffs did not present sufficient evidence to prove
to the court that an earlier diagnosis would have prevented plaintiff’s end-stage kidney
failure and the need for a kidney transplant. Rather, the court was persuaded by Dr.
Bern’s testimony that the outcome would have been the same even if plaintiff’s renal
disease had been diagnosed earlier. Consequently, plaintiffs cannot prevail on their
medical malpractice claims.
{¶ 21} Plaintiffs James and Kimberly McArthur have asserted claims 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 plaintiff who
suffers bodily injury. Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 93. Inasmuch as
plaintiffs have failed to prove their claims of negligence, the loss of consortium claims
must also fail.
{¶ 22} 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 shall be rendered in favor of defendant.
Case No. 2010-06559 - 10 - 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
JESSICA MCARTHUR, et al.
Plaintiffs
v.
BOWLING GREEN STATE UNIVERSITY
Defendant
Case No. 2010-06559
Judge Clark B. Weaver Sr.
JUDGMENT ENTRY
{¶ 23} 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.
_____________________________________
CLARK B. WEAVER SR.
Judge
Case No. 2010-06559 - 11 - DECISION
cc:
Brian M. Kneafsey, Jr. Thomas W. Gallagher
Assistant Attorney General 400 Toledo Legal Building
150 East Gay Street, 18th Floor 416 North Erie Street
Columbus, Ohio 43215-3130 Toledo, Ohio 43604-5622
004
Filed May 15, 2012
To S.C. Reporter August 31, 2012