[Cite as Swartz v. Univ. of Toledo Med. Ctr., 2013-Ohio-4839.]



                                                         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



LAURIE Y. SWARTZ, et al.

        Plaintiffs

        v.

UNIVERSITY OF TOLEDO MEDICAL CENTER

        Defendant

Case No. 2011-07761

Judge Patrick M. McGrath
Magistrate Anderson M. Renick

JUDGMENT ENTRY

        {¶ 1} This case was tried to a magistrate on the issue of damages. On February
6, 2013, the magistrate issued a decision recommending judgment for plaintiffs in the
amount of $400,878.88.
        {¶ 2} Civ.R. 53(D)(3)(b)(i) states, in part: “A party may file written objections to a
magistrate’s decision within fourteen days of the filing of the decision, whether or not the
court has adopted the decision during that fourteen-day period as permitted by Civ.R.
53(D)(4)(e)(i).” Plaintiffs filed their objection on February 20, 2013. On March 1, 2013,
defendant filed a response to plaintiffs’ objection, its objections to the magistrate’s
decision, and a copy of the transcript. On March 15, 2013, plaintiffs filed a response to
defendant’s objections to the magistrate’s decision.
        {¶ 3} According to the magistrate’s decision, on February 2, 2009, plaintiff Laurie
Swartz underwent a right ulnar nerve transposition procedure performed by defendant’s
employee Martin Skie, M.D.1 During the course of the surgery, plaintiff’s ulnar nerve
was transected.         The transection resulted in “residual difficulties in the function of
Case No. 2011-07761                                -2-                                ENTRY

[plaintiff’s] right hand as well as with elements of a complex regional pain syndrome on
a permanent basis.” Magistrate’s Decision, p. 2. Plaintiff subsequently underwent six
weeks of physical therapy sessions to improve movement, a second surgery, and eight
or nine nerve blocks in an attempt to reduce the constant pain and hypersensitivity.
      {¶ 4} The magistrate determined that “the condition which causes pain and
hypersensitivity in plaintiff’s right hand is permanent in nature and affects her daily
activities.” Magistrate’s Decision, p. 5. The magistrate recommended that plaintiff be
awarded $250,000 for past and future pain and suffering and past and future loss of
enjoyment of life. The magistrate further recommended that plaintiff Paul Swartz be
awarded $150,000 for his loss of consortium. Regarding out-of-pocket expenses, the
magistrate recommended an award of $853.88. Finally, the magistrate determined that
plaintiff had failed to prove that her injuries were the cause of her resignation from her
employment.
      {¶ 5} In reviewing a party’s objections, the “court must conduct an independent
analysis of the underlying issues, undertaking the equivalent of a de novo determination
and independently assessing the facts and conclusions contained in the magistrate’s
decision.” Shihab & Assoc. Co. LPA v. Ohio DOT, 168 Ohio App.3d 405, 2006-Ohio-
4456, ¶ 13 (10th Dist.); City of Dayton v. Whiting, 110 Ohio App.3d 115, 118 (2nd
Dist.1996).
      {¶ 6} In its first objection, defendant argues that the recommendation of an award
of $250,000 to plaintiff is “excessive and unsupported by the evidence.” Likewise, in its
second objection, defendant argues that the magistrate’s recommendation of an award
of $150,000 to Paul Swartz is “excessive and unsupported by the evidence.” Inasmuch
as defendant’s objections are interrelated, the court will address them simultaneously.
      {¶ 7} The magistrate noted that plaintiff has “ongoing pain and hypersensitivity,
limitation of movement of several fingers, as well as atrophy and cramping of certain

      1
       For the purposes of this decision, “plaintiff” shall refer to Laurie Swartz.
Case No. 2011-07761                          -3-                                     ENTRY

muscles in her right hand.” Magistrate’s Decision, pp. 3-4. Plaintiff reported increased
difficulty and pain in daily life activities such as sleeping, showering, dressing, traveling,
cooking, and cleaning. Additionally, plaintiff is no longer able to engage in activities
such as biking, sailing, and gardening without experiencing significant pain and
discomfort. Plaintiff even reported increased pain and discomfort while riding in an
automobile. Furthermore, plaintiff is now in a constant state of pain and suffers from
hypersensitivity to heat and cold.      Swartz now assists with many of the household
activities, such as cooking and addressing envelopes as well as trimming plaintiff’s
finger nails, which she reports to be an extremely painful activity. The court does not
agree that the magistrate’s recommendations are “excessive and unsupported by the
evidence.” Accordingly, defendant’s first and second objections are OVERRULED.
       {¶ 8} In their only objection, plaintiffs argue that the magistrate erred in finding
that plaintiffs had failed to prove that plaintiff’s injuries were the cause of her resignation
from her employment. The magistrate was persuaded by the testimony of plaintiff’s
supervisor that even after plaintiff’s surgery, she continued to be an excellent employee.
The magistrate noted that no one suggested that plaintiff resign her position and that
plaintiffs had previously considered the possibility of plaintiff retiring early so that they
could spend more time together. Finally, the magistrate noted that plaintiff admitted that
she was able to complete her assigned duties despite the limitations with her hand. The
court agrees with the magistrate’s determination. Accordingly, plaintiffs’ objection is
OVERRULED.
       {¶ 9} Upon review of the record, the magistrate’s decision and the objections, the
court finds that the magistrate has properly determined the factual issues and
appropriately applied the law. Therefore, the objections are OVERRULED and the court
adopts the magistrate’s decision and recommendation as its own, including findings of
fact and conclusions of law contained therein.
       {¶ 10} Judgment is rendered for plaintiffs in the amount of $400,878.88 which
includes the filing fee paid by plaintiffs. Court costs are assessed against defendant.
Case No. 2011-07761                       -4-                                   ENTRY

The clerk shall serve upon all parties notice of this judgment and its date of entry upon
the journal.



                                         _____________________________________
                                         PATRICK M. MCGRATH
                                         Judge


cc:


Anne B. Strait                              Robert M. Scott
Assistant Attorney General                  416 North Erie Street, Suite 400
150 East Gay Street, 18th Floor             Toledo, Ohio 43604-5622
Columbus, Ohio 43215-3130

003
Filed May 6, 2013
To S.C. Reporter October 31, 2013
