Aubry v. Univ. of Toledo Med. Ctr.

[Cite as Aubry v. Univ. of Toledo Med. Ctr., 2010-Ohio-4574.]
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
LAWRENCE AUBRY, et al.
Plaintiffs
v.
THE UNIVERSITY OF TOLEDO MEDICAL CENTER f/k/a MEDICAL UNIVERSITY OF
OHIO AT TOLEDO
Defendant
Case No. 2007-05814
Judge Clark B. Weaver Sr.
AMENDED JUDGMENT ENTRY
{¶ 1} On July 21, 2010, the court issued a decision wherein the court held “that
it was not below the standard of care for Dr. Seal to recommend the green-light laser
procedure as a treatment for plaintiff’s symptoms. Nonetheless, the court finds that the
care and treatment provided to plaintiff by Dr. Miocinovic, under the direction and
supervision of Dr. Seal, fell below the accepted standard of care. Specifically, the court
finds that plaintiff suffered an injury to his external sphincter as the result of a
misapplication of the green-light laser and that such mishap caused plaintiff’s
incontinence.”1
{¶ 2} On August 12, 2010, defendant filed a motion requesting that the court
amend its decision to include a finding that apportions the percentage of liability
between Drs. Miocinovic and Seal pursuant to R.C. 2307.23. R.C. 2307.23 states as
follows:
{¶ 3} “(A) In determining the percentage of tortious conduct attributable to a
1
In this matter, “plaintiff” shall refer to Lawrence Aubry.
Case No. 2007-05814 -2- AMENDED JUDGMENT
ENTRY
party in a tort action under section 2307.22 or sections 2315.32 to 2315.36 of the
Revised Code, the court in a nonjury action shall make findings of fact, and the jury in a
jury action shall return a general verdict accompanied by answers to interrogatories,
that shall specify all of the following:
{¶ 4} “(1) The percentage of tortious conduct that proximately caused the injury
or loss to person or property or the wrongful death that is attributable to the plaintiff and
to each party to the tort action from whom the plaintiff seeks recovery in this action;
{¶ 5} “(2) The percentage of tortious conduct that proximately caused the injury
or loss to person or property or the wrongful death that is attributable to each person
from whom the plaintiff does not seek recovery in this action.
{¶ 6} “(B) The sum of the percentages of tortious conduct as determined
pursuant to division (A) of this section shall equal one hundred per cent.”
{¶ 7} Defendant’s motion is GRANTED. Upon review of the testimony and
evidence adduced at trial, the court finds that plaintiff did not proximately cause or
contribute to his injury. In addition, the court concludes that although Dr. Miocinovic
exercised sole control over the foot pedal which activated the laser, Dr. Seal either
directed or approved each application of the laser to various areas within plaintiff’s
urinary tract. Accordingly, the court apportions the liability for plaintiff’s injury equally
between Drs. Miocinovic and Seal.
_____________________________________
CLARK B. WEAVER SR.
Judge
cc:
Case No. 2007-05814 -3- AMENDED JUDGMENT
ENTRY
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
SJM/cmd
Filed September 3, 2010
To S.C. reporter September 14, 2010