[Cite as Miller v. Toledo Hosp., 2017-Ohio-2691.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


Joni R. Miller, etc.                                    Court of Appeals No. L-16-1211

        Appellant                                       Trial Court No. CI0201501417

v.

The Toledo Hospital                                     DECISION AND JUDGMENT

        Appellee                                        Decided: May 5, 2017

                                                    *****

        Michael D. Bell, for appellant.

        James E. Brazeau and Chad M. Thompson, for appellee.

                                                    *****

        PIETRYKOWSKI, J.

        {¶ 1} Plaintiff-appellant, Joni Miller, Administrator of the Estate of Robert

McIlvain, Deceased, appeals the September 16, 2016 judgment of the Lucas County

Court of Common Pleas which granted summary judgment in favor of defendant-

appellee, The Toledo Hospital, in a medical negligence case. Because we agree that no

genuine issues of fact remain for trial, we affirm.
       {¶ 2} The underlying facts of this case are essentially undisputed. Mr. McIlvain

was admitted to The Toledo Hospital’s cardiac step-down unit on August 20, 2013. On

that date, McIlvain was 77 years old and suffering from various coronary issues.

McIlvain was also noted to have memory issues. During the admission process, McIlvain

was assessed as a “high risk” for falls under the Morse Fall Risk Scale assessment. Per

hospital fall prevention policy, this required the use of various preventative measures

including assigning a patient a room near the nurse’s station, leaving the door open,

instructing a patient to call for assistance, providing assistance with transfers and

ambulation, and considering the use of a bed alarm.

       {¶ 3} On August 23, 2013, around 9:30 p.m., McIlvain fell in his room. The only

individual who witnessed the fall, Toledo Hospital Nurse Michelle Starkey, unfortunately

passed away and was unable to provide a statement regarding the incident. At the time,

Nurse Starkey charted the events as follows:

              pt found walking into bathroom per self. Was asked if he needed

       any help. pt proceeded towards toilet, lost balance and fell. Was asked if

       anything hurt, said only rt inner upper leg. Abrasion noted on rt fa. No

       other apparent injuries noted.

       {¶ 4} Following his fall, it was determined that McIlvain suffered a right hip

fracture which was surgically repaired. McIlvain was transferred to a rehabilitation

facility and was later discharged home. McIlvain passed away on May 5, 2014, from

congestive heart failure.




2.
       {¶ 5} This action commenced on February 9, 2015, with appellant, decedent’s

daughter, asserting a claim for medical negligence and for wrongful death following

McIlvain’s August 23, 2013 fall and resulting injury while a patient at appellee Toledo

Hospital. Appellant dismissed the wrongful death claim on March 3, 2016.

       {¶ 6} On June 10, 2016, appellee filed a motion for summary judgment on the

remaining negligence claim. The essence of its argument was that appellant was not able

to establish a prima facie case of negligence because her arguments regarding the

elements of breach and causation were speculative. Appellee specifically pointed to the

March 2, 2016 deposition testimony of appellant’s expert, Nurse Carol Alvin, and the

materials she relied upon in rendering her opinion.

       {¶ 7} In response, appellant, relying on the same materials, contended that neither

Nurse Starkey nor any medical report indicated that Mr. McIlvain was being assisted at

the time of his fall. Appellant argued that this, at minimum, created an issue of fact for

trial. Appellant submitted the July 7, 2016 affidavit of Nurse Alvin.

       {¶ 8} In the trial court’s September 16, 2016 opinion and judgment entry granting

summary judgment, it agreed that appellant’s expert’s opinion that appellee breached the

standard of reasonable nursing care by failing to provide a bed alarm and/or by failing to

assist McIlvain was not supported by the evidence or any reasonable inference derived

therefrom. Specifically, the court concluded that as to the lack of a bed alarm, the

testimony of Nurse Alvin failed to demonstrate that had the bed alarm been in place,

McIlvain would not have made it to the bathroom unattended. Regarding the alleged lack




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of assistance, the court found that Nurse Alvin’s opinion that Nurse Starkey failed to

assist McIlvain and that this caused his fall was based upon an inference that she had the

time to assist him prior to the fall and that she, in fact, failed to act consistently with that

opportunity. This appeal followed.

       {¶ 9} Appellant now raises the following assignment of error:

               The trial court erred when it granted summary judgment in favor of

       Appellee The Toledo Hospital.

       {¶ 10} At the outset we note that appellate review of a trial court’s grant of

summary judgment is de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671

N.E.2d 241 (1996). Accordingly, we review the trial court’s grant of summary judgment

independently and without deference to the trial court’s determination. Brown v. Scioto

Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993).

Summary judgment will be granted only when there remains no genuine issue of material

fact and, when construing the evidence most strongly in favor of the nonmoving party,

reasonable minds can only conclude that the moving party is entitled to judgment as a

matter of law. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d

46 (1978); Civ.R. 56(C). The burden of showing that no genuine issue of material fact

exists falls upon the party who moves for summary judgment. Dresher v. Burt, 75 Ohio

St.3d 280, 294, 662 N.E.2d 264 (1996). However, once the movant supports his or her

motion with appropriate evidentiary materials, the nonmoving party “may not rest upon

the mere allegations or denials of his pleadings, but his response, by affidavit or as




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otherwise provided in this rule, must set forth specific facts showing that there is a

genuine issue for trial.” Civ.R. 56(E).

        {¶ 11} In her sole assignment of error, appellant asserts that the trial court erred

when it found that the evidence presented on the element of violation of the standard of

care and the element of causation was speculative and, thus, failed to create an issue of

fact for trial.

        {¶ 12} Three elements must be proven in order to maintain a medical malpractice

or professional negligence cause of action. First, a plaintiff must establish the applicable

standard of care, usually through expert testimony. Second, a plaintiff must show a

negligent failure on the part of the hospital or hospital employee to meet the standard of

care. Finally, a direct causal connection must be demonstrated between the medically

negligent act and the injury. Starkey v. St. Rita’s Med. Ctr., 117 Ohio App.3d 164, 169,

690 N.E.2d 57 (3d Dist.1997); Bruni v. Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673

(1976).

        {¶ 13} As set forth above, appellant’s expert was Carol L. Alvin, RN, BSN. Nurse

Alvin had been licensed in Ohio since 1979, and received her critical care nurse status in

1982. Alvin also received her cardiac medicine certification in 2010. Nurse Alvin is not

active clinically and has been employed as a legal nurse consultant since 2011.

        {¶ 14} Nurse Alvin testified in her deposition that in drafting her Statement of

Merit, or report stating whether or not she believed that there was a breach in the standard

of nursing care, she reviewed Mr. McIlvain’s medical records, appellee’s fall prevention




5.
protocol, and appellee’s direct observation caregiver (sitter) policy. As to fall prevention,

Nurse Alvin explained the Morse Fall Risk Scale which is used to evaluate the types of

fall prevention measures to be implemented based on a patient’s score; above 45

indicates a high risk of falling.

       {¶ 15} During her deposition, Nurse Alvin provided two opinions as to breaches

of the nursing standard of care. First, Alvin stated that based upon McIlvain’s fall risk

score of 85, a reasonable standard of nursing care would require the use of a bed alarm.

Second, McIlvain should have been physically assisted by the nurse while ambulating to

the restroom.

       {¶ 16} Nurse Alvin stated that her definition of a fall, an uncontrolled drop to the

floor, would have been prevented had McIlvain been physically assisted. In other words,

had personnel not been able to keep him upright, he would have been “let down easily” in

a controlled manner. Alvin admitted that it would be possible for a nurse to assist a

patient who still hits the floor in an uncontrolled manner and not have breached the

nursing standard of care. Alvin also admitted that a “reasonable nurse” could have a

different definition of the word “fall.”

       {¶ 17} Alvin further testified that this lack of assistance caused McIlvain’s fall.

When questioned about her belief that he was unassisted, Nurse Alvin states that the chart

notes indicate that the nurse only asked McIlvain if he needed assistance, it did not state

that she, in fact, assisted him. Alvin stated her belief that had the nurse assisted

McIlvain, she would have written that in the chart.




6.
       {¶ 18} Regarding the use of a bed alarm, Nurse Alvin stated that it is used to alert

a nurse that a patient has gotten out of bed. Alvin acknowledged that it does not keep a

patient in bed but that if hospital personnel hears the alarm and immediately goes to assist

the patient they have satisfied the standard of care. Appellee’s fall risk policy did not

require the use of a bed alarm; its use was discretionary.

       {¶ 19} Appellant first argues that the trial court erred when it found that she failed

to raise an issue of fact as to whether the lack of a bed alarm caused Mr. McIlvain’s fall.

Appellant asserts that had the bed alarm been in place, McIlvain’s fall would have likely

been prevented. In support, appellant cites to Nurse Alvin’s July 7, 2016 affidavit which

states that “had a bed alarm been in place and activated, nursing would have been alerted

to Mr. McIlvain’s ambulating long before he reached the bathroom, and—had they acted

appropriately—the fall would have been prevented.”

       {¶ 20} However, this affidavit is contradicted by Alvin’s prior deposition

testimony which provides:

               Q: Is it your opinion that supposed failure to use a bed alarm more

       likely than not caused the decedent’s fall in this case?

               A: I don’t think I can speak to causation, but I can say that in this

       particular case the patient not being assisted when he was up led to his fall.

               Q: Is it your testimony that the supposed fact that the patient was

       not being assisted, regardless of whether there was a bed alarm, caused his

       fall?




7.
              A: Yes. Wait a minute. Caused? Allowed it.

              Q: So I guess what you’re saying is but for a lack of assistance, he

       would not have fallen?

              A: Correct.

              Q: Regardless of whether or not a bed alarm was necessary?

              A: That is correct in this instance.

       {¶ 21} Appellee correctly states that a subsequent, contradictory and unexplained

affidavit of the same nonparty expert may generally not be used to create an issue of fact,

See Pettiford v. Aggarwal, 126 Ohio St.3d 413, 2010-Ohio-3237, 934 N.E.2d 913,

syllabus. Accordingly, we conclude that no issue of fact remained regarding the absence

of a bed alarm and the proximate cause of McIlvain’s fall.

       {¶ 22} Further, even assuming that a bed alarm was in place, Nurse Alvin

acknowledged that there was no requirement that a nurse either be in the patient’s room

or near the patient’s room. Thus, there is no indication that Starkey or any hospital

personnel would have been alerted and arrived in McIlvain’s room any sooner than the

events at issue.

       {¶ 23} Appellant next asserts that, at minimum, an issue of fact was raised as to

whether Nurse Starkey’s failure to assist Mr. McIlvain proximately caused his fall.

Conversely, appellee argues that any inference that Nurse Starkey breached the standard

of care by failing to assist is pure speculation and does not create an inference of

negligence.




8.
       {¶ 24} In its motion for summary judgment, appellee relied on a case involving a

fall at a nursing home. McFarren v. Emeritus at Canton, 2016-Ohio-484, 59 N.E.3d 652

(5th Dist.). In McFarren, a 91-year-old resident was found on the floor of her room with

a fractured left hip; she died approximately one week later. The decedent’s grandson

submitted an affidavit stating that his grandmother told him that she had been calling for

help to move her from her wheelchair to the bed; when no one came she attempted the

move and fell. Id. at ¶ 11. Regarding the alleged negligence based on a breach of the

standard of care/fall prevention, the court determined that it was speculation as to

whether the fall could have been prevented had more precautions been in place. Id. at

¶ 82. The court further noted:

              [E]ven assuming that Mrs. Rinker did call for assistance prior to her

       fall, there is no evidence in the record, hearsay or otherwise, to establish

       how long or how many times Mrs. Rinker called out to determine if any

       alleged delay in responding constituted proximate cause for purposes of

       establishing negligence. Without evidence as to how long she called out

       prior to deciding to attempt the transfer on her own, there is not sufficient

       evidence to meet the proximate cause standard. Id. at ¶ 85.

       {¶ 25} The parties dispute the applicability of McFarren; appellant claims it is

distinguishable because it is known how McIlvain fell as he was witnessed losing his

balance. Appellee counters that this fact is not the ultimate question; the issue is whether

the nurse violated the standard of care by failing to assist Mr. McIlvain.




9.
      {¶ 26} As quoted by appellee, addressing causation the trial court, tucked in a

footnote, keenly observed:

             Nurse Starkey’s chart note offers a breadth of speculative

      permutations relative to the circumstances surrounding Mr. McIlvain’s fall.

      Was Nurse Starkey close to Mr. McIlvain (or even present in his room)

      when she spotted him out of bed, or was she farther away, perhaps in the

      hallway, when she saw him? How quickly did Mr. McIlvain fall after

      Starkey first spotted him: was it instantaneous, or did Mr. McIlvain only

      fall after an appreciable moment or more? Was Starkey standing still or

      moving toward Mr. McIlvain when she asked if he needed assistance? Was

      there some “logistical” impediment delaying Starkey’s ability to get to

      McIlvain (Starkey’s chart note stated that he was walking into the bathroom

      and that he proceeded to the toilet, as opposed to a more general

      observation that he was walking to or towards the bathroom)? Did Starkey,

      in fact, have a failed attempt to assist Mr. McIlvain, causing him to “land

      on bottom?” Did Starkey simply stand (in some unknown location) and

      watch these events unfold? Did she dart in Mr. McIlvain’s direction but

      fail to reach him in time? What else might have happened that Starkey did

      not record in her note? There are no established facts to support reasonable

      answers to any of these, or similar questions.




10.
       {¶ 27} The trial court’s observations demonstrate the fatal flaw in appellant’s case.

The fact that these questions are not capable of an answer leads to the inescapable

conclusion that no issues of fact remain for trial. Nurse Alvin’s opinions on causation are

too speculative to set forth a prima facie case of medical negligence. Appellant’s

assignment of error is not well-taken.

       {¶ 28} On consideration whereof, we find that substantial justice was done the

party complaining and the judgment of the Lucas County Court of Common Pleas is

affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.


                                                                        Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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