[Cite as Melvin v. Ohio State Univ. Med. Ctr., 2010-Ohio-4341.]

                                                        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




MICHELE A. MELVIN, Admr.

       Plaintiff

       v.

THE OHIO STATE UNIVERSITY MEDICAL CENTER

       Defendant
       Case No. 2007-09135

Judge Joseph T. Clark

DECISION




        {¶ 1} On June 11, 2010, the magistrate issued a decision recommending
judgment for defendant.
        {¶ 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).” Plaintiff timely filed her objections and a transcript of proceedings. On
July 1, 2010, defendant filed a response.
        {¶ 3} Plaintiff brought this action on behalf of the estate of the decedent, Joseph
W. Wilson, alleging wrongful death.               On December 13, 2006, Dr. Mark Arnold, an
employee of defendant, performed an operation on Wilson to remove a polyp and a
portion of his colon. Defendant discharged Wilson to a nursing facility on December 24,
2006.1 On the evening of December 25, 2006, Wilson complained of abdominal pain


        1
         To the extent that a discrepancy exists as to the date of Wilson’s discharge, the court notes that
and was transported to the emergency room of the Upper Valley Medical Center in
Troy, Ohio, where he died early the next morning.                      Following an autopsy, the
Montgomery County Coroner’s office issued a report which identified the cause of
Wilson’s death as “acute peritonitis due to surgical wound dehiscence.”
         {¶ 4} Plaintiff alleges that defendant was negligent in failing to “properly
diagnose and/or treat the developing acute peritonitis from which [Wilson] suffered and
died.”    Defendant argues that Wilson’s care and treatment at all times met the
applicable standard of care and, moreover, that Wilson died of heart failure rather than
peritonitis.
         {¶ 5} The magistrate found that Dr. Arnold’s care and treatment of Wilson met
the applicable standard of care.           Specifically, the magistrate found that Dr. Arnold
appropriately determined that Wilson did not exhibit the clinical symptoms of peritonitis
following the December 13, 2006 surgery and that Wilson was properly discharged to
the nursing facility on December 24, 2006.
         {¶ 6} In reviewing plaintiff’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 Dept. of Transp., 168 Ohio App.3d 405,
2006-Ohio-4456, ¶13.
         {¶ 7} In her first, second, third, fifth, and sixth objections, plaintiff generally
argues that the magistrate erred in finding that the treatment which Wilson received
from Dr. Arnold and defendant’s other medical professionals met the applicable
standard of care.        Central to this issue is the question whether Wilson exhibited
symptoms consistent with peritonitis while in defendant’s care.
         {¶ 8} Plaintiff’s expert, Dr. Steven Becker, opined that Wilson had an elevated
white blood cell count and other symptoms of peritonitis while under defendant’s care
such that further diagnostic testing should have been performed to detect any peritoneal
infection. Defendant’s experts, Drs. Alessandro Fichera and Olaf B. Johansen, opined
that Wilson did not exhibit symptoms consistent with peritonitis and that his white blood
cell count remained at a level that was normal for someone with his frailties, including


paragraph 15 of the magistrate’s decision correctly identifies the date as December 24, 2006.
congestive heart failure. Dr. Johansen further opined that Wilson’s white blood cell
count remained relatively stable rather than spiking upward as it typically would in a
patient with peritonitis.
       {¶ 9} After weighing the experts’ testimony, the magistrate found “the testimony
of Drs. Fichera and Johansen to be more persuasive than the opinion offered by Dr.
Becker.” It is well-settled that the magistrate, as the trier of fact, is in the best position to
weigh the testimony and assess the credibility of witnesses.            Seasons Coal Co. v.
Cleveland (1984), 10 Ohio St.3d 77, 80. Upon review of the transcript and the evidence
presented at trial, the court finds that the magistrate properly determined that the
treatment rendered to Wilson was within the standard of care.
       {¶ 10} In her fourth objection, plaintiff asserts that the magistrate erred in
concluding that Drs. Arnold, Becker, Fichera, and Johansen similarly described the
symptoms of peritonitis. A review of the relevant testimony, however, reveals that the
symptoms described by the experts were largely the same:                   fever, tachycardia,
tachypnea, abdominal tenderness, lack of bowel function, and an elevated white blood
cell count. Accordingly, plaintiff’s objection is not well-taken.
       {¶ 11} In her seventh objection, plaintiff argues that the magistrate erred in
denying her June 9, 2009 motion in limine wherein plaintiff’s motion sought to (1)
preclude defendant from offering evidence to rebut the coroner’s finding as to the cause
of Wilson’s death, and (2) exclude the deposition testimony of defendant’s pathology
expert, Dr. Vincent J. M. DiMaio, on the ground that he did not meet the requirements
set forth in Evid.R. 601(D) for providing expert testimony on the issue of liability in a
medical malpractice claim.
       {¶ 12} R.C. 313.19 provides that the cause of death assigned by the coroner
shall be “the legally accepted cause of death.” Nonetheless, the Supreme Court of Ohio
has held that the coroner’s findings are non-binding and may be rebutted by competent,
credible evidence. See Vargo v. Travelers Ins. Co., Inc. (1987), 34 Ohio St.3d 27,
paragraph one of the syllabus.
       {¶ 13} In seeking to rebut the coroner’s findings, defendant chiefly relied upon
the testimony of Dr. DiMaio.       Inasmuch as Dr. DiMaio’s testimony thus concerned
Wilson’s autopsy and cause of death rather than the treatment he received while in
defendant’s care, Dr. DiMaio’s testimony did not pertain to the issue of liability and he
did not need to qualify as a medical expert under Evid.R. 601(D). See Lessler v. Ohio
State Univ. Hospitals (May 8, 1997), Franklin App. No. 96API10-1276.
         {¶ 14} Therefore, the magistrate did not err in allowing defendant to present
evidence to rebut the coroner’s findings.
         {¶ 15} In her eighth objection, “[p]laintiff objects to the magistrate’s implicit finding
and conclusion that the evidence presented by the defendant was sufficient to
overcome the rebuttable presumption which attaches to [the coroner’s] report * * *.”
Similarly, in her ninth objection, plaintiff argues that the magistrate’s decision
“disregards” the coroner’s report. The magistrate acknowledged the coroner’s report,
however, and did not make a finding as to the cause of Wilson’s death. Moreover, as
previously stated, coroner’s findings are non-binding and may be rebutted by
competent, credible evidence. Vargo, supra.
         {¶ 16} In her tenth and eleventh objections, plaintiff contends that the
magistrate’s decision is against the manifest weight of the evidence. The court does not
agree.
         {¶ 17} 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, all of the objections are OVERRULED and the
court shall adopt the magistrate’s decision and recommendation as its own, including
findings of fact and conclusions of law contained therein. Judgment shall be rendered
in favor of defendant.




                                                  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




MICHELE A. MELVIN, Admr.
       Plaintiff

       v.

THE OHIO STATE UNIVERSITY MEDICAL CENTER

       Defendant
       Case No. 2007-09135

Judge Joseph T. Clark

JUDGMENT ENTRY




        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.              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

cc:


Daniel R. Forsythe                                    John E. Fulker
Karl W. Schedler                                      William J. Fulker
Assistant Attorneys General                           12 South Cherry Street
150 East Gay Street, 18th Floor                       P.O. Box 8
Columbus, Ohio 43215-3130                             Troy, Ohio 45373

RCV/cmd/Filed September 8, 2010/To S.C. reporter September 14, 2010
