[Cite as Gordon v. Ohio State Univ. Med. Ctr., 2010-Ohio-5689.]

                                                        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




ROBERT GORDON, Admr., etc., et al.

       Plaintiffs

       v.

OHIO STATE UNIVERSITY MEDICAL CENTER, et al.

       Defendants
       Case No. 2007-03471

Judge Clark B. Weaver Sr.

DECISION




        {¶ 1} Plaintiff, Robert Gordon, administrator of the estate of Lola McKinney,
brought this action alleging claims of wrongful death and medical negligence.                 The
issues of liability and damages were bifurcated and the case proceeded to trial on the
issue of liability.
        {¶ 2} On October 18, 2005, Lola McKinney began serving a sentence of
incarceration at the Ohio Reformatory for Women (ORW). She was 39 years old and
suffering from end-stage renal disease, hypertension, and a seizure disorder. As a
result of the renal disease, McKinney required hemodialysis three times per week, a
schedule that she had followed for more than ten years prior to her incarceration. While
in custody, McKinney was transported for dialysis each Monday, Wednesday, and
Friday at Frazier Health Center, a part of the Pickaway Correctional Institution.
        {¶ 3} On or about November 6, 2005, McKinney experienced some dizziness
and fell two times while at ORW. She reported to staff that she had hit her head and felt
pain in her head, as well as in her right shoulder, arm, and wrist.             The next day,
November 7, 2005, when she would have been transported for dialysis, she was instead
taken to a local emergency room at Union Memorial Hospital (UMH) where she was
evaluated by the attending physician, Matthew Sanders, D.O.                      According to Dr.
Sanders, McKinney arrived on a backboard with a cervical collar in place. She denied
that she had experienced any seizure activity in conjunction with her falls. Dr. Sanders
ordered a CT scan of McKinney’s head, x-rays of her neck, chest, right arm, and wrist,
an EKG, and laboratory studies. There were no significant findings from the CT scan or
x-rays. However, a blood sample that was drawn at 11:10 a.m. revealed a high level of
potassium, 7.4,1 in McKinney’s blood serum, a condition known as hyperkalemia. In
addition, the EKG depicted abnormal T-waves, an indication that McKinney’s heart
rhythm was being affected by her elevated potassium level. At approximately 12:15
p.m., several medications were administered to temporarily correct the elevated blood
serum potassium. At 1:00 p.m., a repeat EKG was performed that showed slightly less
irregularity in the T-waves. Dr. Sanders subsequently arranged to transfer McKinney to
The Ohio State University Medical Center (OSUMC), under the care of Thomas Gavin,
M.D. Dr. Sanders testified that he spoke directly with Dr. Gavin to effect the transfer,
but that he did not recall the specifics of the conversation.               He also stated that a
secretary or unit clerk would have sent a copy of McKinney’s chart along with her,
together with the results of any laboratory results that had been received. The UMH
transfer sheet states that the purpose of the move was “further workup of [McKinney’s]
medical problems and possible dialysis.” (Plaintiffs’ Exhibit 5, Page 20.)
      {¶ 4} McKinney arrived at the OSUMC emergency room at approximately 2:30
p.m. on November 7, 2005. According to Dr. Gavin, OSUMC did not receive any lab
results from UMH, and its staff had no knowledge of the 7.4 potassium reading. He did
not recall whether he had personally spoken with Dr. Sanders regarding the transfer, or
whether it might have been another osumc staff member, and could not recall any
specific facts concerning such conversation. Dr. Gavin testified that he was aware that
McKinney’s potassium level had been “elevated” according to the medical staff who
referred her to OSUMC, but did not know what the number was or how high it was. He



      1
       According to Dr. Sanders, the UMH laboratory defines “normal” as a reading of 3.5 to 5.0.
stated that he was also aware that McKinney had been given medications to reduce the
level of potassium in her blood serum.
        {¶ 5} In order to address the injuries associated with McKinney’s falls, a CT
head scan was ordered. Because her potassium level was in question, an EKG and a
repeat blood test were also performed.                    The blood was drawn at 4:00 p.m.,
approximately four hours after McKinney’s treatment at UMH. The blood test showed
that McKinney’s potassium level was at 5.3,2 and the EKG depicted no abnormality in
the T-waves. Dr. Gavin testified that the medications used to treat hyperkalemia were
“temporizing measures” that would remain effective for only one or two hours and that, if
her potassium had been “truly elevated” at UMH, by 4:00 p.m. the reading would have
again been elevated. He also suggested that for the level to be at 5.3 approximately
four hours after the medications had been administered, McKinney’s potassium level
may “never really [have been] drastically elevated.” (Transcript, Page 69, Lines 12-22.)
        {¶ 6} As a result of his findings, Dr. Gavin decided to transfer McKinney back to
the custody of the Department of Rehabilitation and Correction (DRC), at its Corrections
Medical Center (CMC) to obtain dialysis through their facilities and procedures. He
testified that, “based on her presentation, her potassium was essentially within normal
range for a dialysis patient. She did not appear to be fluid overloaded. I don’t recall her
being acidotic. We felt she did not meet the need for dialysis. We felt we had time to
get her dialyzed.” (Transcript, Page 58, Lines 7-13.) Dr. Gavin also testified that it was
his understanding that McKinney “would be monitored there to be sure the potassium
was okay,” and that in order to make such a determination a blood test would be
required. (Transcript, Page 72, Lines 9-10; Page 78, Lines 10-17.) He stated that
OSUMC did not write orders for follow-up procedures because it was necessary to
ensure that CMC could handle the patient upon transfer and, thus, any such orders are
made through a direct communication, physician-to-physician. According to Dr. Gavin,
the direct communication method allows CMC to refuse a transfer if it does not have the
specific capabilities for the patient’s care. (Transcript, Page 74, Lines 16-24; Page 76,
Lines 10-16.)


        2
          Dr. Gavin testified that a potassium level of 5.3 is “minimally elevated” but is not uncommon for a
dialysis patient.
        {¶ 7} William Jenkins, M.D., then an OSUMC second-year resident in
emergency room medicine, made the physician-to-physician contact call and prepared
the transfer certificate for McKinney’s move to CMC.          He testified that residents
routinely complete the transfer documentation and that he had previously transferred
many inmate patients to CMC. Dr. Jenkins explained that the procedure to request a
transfer was to contact the on-call physician, “speak to them, basically reiterate the
emergency department work-up, explain what [had been] done” and verify that CMC
would accept the transfer. (Transcript, Page 119, Lines 21-23.) He stated that he had
done so. Dr. Jenkins testified that he did not relate that McKinney had a 7.4 potassium
reading at UMH, or provide any documentation of the same, because OSUMC did not
have those records at the time.       He stated that he had reviewed the paperwork
regarding that information “after the fact,” or in preparation for his trial testimony. Dr.
Jenkins further testified that he “assumed” that a patient with a history of high potassium
and a dialysis requirement would be followed up with continuous cardiac monitoring,
either by a telemetry unit or an isolated monitor, and a repeat blood chemistry, but that
he did not indicate the same on the transfer certificate. He also testified that he did not
have the authority to write such orders for the CMC facility.       The OSUMC transfer
certificate, prepared at 5:26 p.m., states that the reason for the transfer was
“hyperkalemia requiring dialysis, missed dialysis appointment today.” (Plaintiffs’ Exhibit
3, Page 146.)
        {¶ 8} McKinney arrived at CMC at approximately 6:45 p.m. The CMC intake
note states that she was “[s]cheduled for dialysis in A.M.” (Plaintiffs’ Exhibit 2, Page
152.)    The first physician order, at 7:15 p.m., states “admit to CMC, [diagnosis]
hyperkalemia.” (Plaintiffs’ Exhibit 2, Page 156.) The CMC medical admission record
states that McKinney’s diagnosis was “hyperkalemia requiring dialysis.”         (Plaintiffs’
Exhibit 2, Page 151.)
        {¶ 9} Nneka Ezeneke, M.D. was the on-call staff physician who took the transfer
call from Dr. Jenkins. She testified that she recalled both being paged after working
hours and the specific matters discussed. According to Dr. Ezeneke, she was advised
that McKinney was an ORW inmate who had been sent to OSUMC with hyperkalemia,
that she had been treated and stabilized, and needed to be transferred to CMC for
dialysis the next day. She stated that she was not told that McKinney would need
another blood draw to determine her potassium level or that continuous cardiac
monitoring would be required, and that she would not have accepted the transfer under
those conditions because CMC did not have the facilities to perform such work. She
also testified that she did not receive all of the details of McKinney’s prior treatment and
test results at the time she accepted the transfer. Dr. Ezeneke did not provide any
aspect of McKinney’s care while she was at CMC.
       {¶ 10} Martin Akusoba, M.D., CMC’s chief medical officer, testified that CMC is a
skilled nursing facility that provides step-down care for inmate patients who are released
from OSUMC. He stated that in McKinney’s case, such care included observing her
condition, regularly monitoring her temperature, blood pressure, heart and respiratory
rates, and ensuring that she could be scheduled for dialysis the next day. He explained
that CMC does not have the type of telemetry equipment that would be required to
continuously monitor McKinney’s heart, nor would such equipment be expected at a
skilled nursing facility. He also stated that her potassium level would not have been
monitored because CMC would have relied upon the 5.3 potassium reading taken at
OSUMC, and the fact that she was being scheduled for dialysis the next day.
Moreover, CMC did not have an after-hours laboratory to process the results.            Dr.
Akusoba did not provide any aspect of McKinney’s care while she was at CMC.
       {¶ 11} McKinney was not taken to dialysis with the first group of patients on the
morning on November 8, 2005. There was some question regarding when, or if, she
was scheduled for transport to Frazier Health Center, particularly because November 8
was a Tuesday, and not her regularly scheduled day for dialysis. According to Daniel
Bauer, R.N., then floor nurse at the Frazier Health Center, the staff is frequently called
upon to work a patient into the schedule. He testified that if McKinney had not been in
preparation for transport to Frazier by 11:00 a.m., it was questionable whether she
would arrive at the facility in time to be dialyzed before the facility closed at 5:00 p.m.
However, he testified that if there were an emergent need for dialysis, a patient could be
sent to OSUMC. (Transcript, Pages 177-179, 192-193, and 197-198.)
       {¶ 12} On the morning of November 8, 2005, McKinney was seen by a CMC
physician at approximately 10:00 a.m., when it was noted that she was alert and that
she denied chest pain, shortness of breath, abdominal pain, or “F/C.” (Plaintiffs’ Exhibit
2, Page 163.) At approximately 11:17 a.m., McKinney was found unconscious and
without a pulse.    (Plaintiffs’ Exhibit 2, Pages 161-162.)      Resuscitation efforts were
commenced immediately and a “code blue ” was called at 11:19 a.m.                  Within two
minutes, at 11:21 a.m., McKinney’s cardiac rhythm was restored. She was transported
back to OSUMC via an emergency squad. McKinney never regained consciousness
and died on November 14, 2005. (Plaintiffs’ Exhibit 2, Pages 189-190.) Her death
certificate, prepared following an external examination by the Franklin County Coroner’s
Office, lists hyperkalemia due to chronic renal failure as her cause of death.
       {¶ 13} Plaintiffs assert that Drs. Gavin and Jenkins knew, or should have known,
that McKinney had a potassium level of 7.4 while at UMH, that she had been given
medications that would only temporarily lower that level, and that she was in need of
emergent dialysis. Plaintiffs contend that Drs. Gavin and Jenkins misconstrued the
significance of both McKinney’s 5.3 potassium level and the T-wave reading taken at
their facility, and that their negligent care of her was the proximate cause of her death.
       {¶ 14} Plaintiffs further assert that DRC was negligent in failing to obtain
adequate information concerning McKinney’s medical condition before accepting her as
a transfer to its facility, in failing to monitor her potassium level and heart condition while
in its care, and in failing to recognize that her condition was life-threatening and in need
of emergency dialysis on the morning of November 8, 2005. Plaintiffs contend that
DRC’s negligence was also a proximate cause of McKinney’s death.
       {¶ 15} “To maintain a wrongful death action on a theory of negligence, a plaintiff
must show (1) the existence of a duty owing to plaintiff’s decedent, (2) a breach of that
duty, and (3) proximate causation between the breach of duty and the death.” Littleton
v. Good Samaritan Hosp. & Health Ctr. (1988), 39 Ohio St.3d 86, 92, citing Bennison v.
Stillpass Transit Co. (1966), 5 Ohio St.2d 122, paragraph one of the syllabus.
       {¶ 16} “In order to establish medical malpractice, it must be shown by a
preponderance of 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 and proximate 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 one of the syllabus.
       {¶ 17} The testimony of plaintiffs’ experts, James E. Wood, III, M.D., who was
board-certified in nephrology and internal medicine, and Joseph R. Yates, M.D., who
was board-certified in emergency medicine, was presented by deposition.
       {¶ 18} Dr. Wood opined that OSUMC’s treatment of McKinney’s hyperkalemia fell
below the standard of care in that it was inappropriate to have discharged her on
November 7, 2005, without first having dialysis. According to Dr. Wood, Dr. Gavin
violated the standard of care in interpreting the 5.3 potassium reading as an indication
that dialysis was not needed that day. Dr. Wood related that McKinney was given
Albuterol, calcium gluconate, insulin, dextrose, and bicarbonate. He stated that “[f]our
of those five drugs, all except the calcium gluconate, transiently lower potassium, and
the effect wears off fully by, essentially, six hours. So the patient received appropriate
temporizing potassium lowering therapies at [UMH].3 And I would have expected, since
they gave appropriate aggressive treatment, that the potassium level would have
dropped to a level such as 5.3 later on at [OSUMC]. The thing that is clear is that the
potassium level within a few hours after that 5.3 would have rebounded to a level of 7.4
or higher.” (Deposition, Page 22, Lines 21-24; Page 23, Lines 1-13.) It was Dr. Wood’s
opinion that McKinney should have been considered an emergency patient requiring
dialysis within at least six hours after the temporizing drugs were administered at UMH.
(Deposition, Page 43, Lines 9-20.) He testified that, for a patient like McKinney, the
danger inherent in having a 7.4 or higher potassium level was “[c]ardiac arrest, and
short of that cardiac arrythmias, which could lead to cardiac arrest.” (Deposition, Page
45, Lines 15-24.)        In his opinion, the primary cause of McKinney’s death was
hyperkalemia, which then caused her cardiac arrest. (Deposition, Page 46, Lines 9-17.)
Dr. Wood further opined, because McKinney was discharged to receive dialysis through

       3
          All of the experts who testified agreed that the treatment provided by UMH was appropriate and
complied with the standard of care, including transferring McKinney to OSUMC for possible dialysis.
Additionally, all of the experts agreed that DRC complied with the standard of care in transporting
McKinney to UMH for evaluation of her head and bodily injuries rather than to her regularly scheduled
dialysis on November 7, 2005.
DRC’s facilities, that OSUMC also fell below the standard of care in that the urgent need
for dialysis at the earliest available opportunity was not effectively communicated to
CMC.
         {¶ 19} With respect to DRC, Dr. Wood opined that CMC’s staff deviated from the
standard of care in failing to obtain a repeat blood chemistry analysis and to perform
cardiac monitoring throughout the evening of November 8 and into the next morning.
He was further of the opinion that DRC’s failure to assure that McKinney received
dialysis early in the morning of November 8 fell below the standard of care. According
to Dr. Wood, CMC’s failure to recognize McKinney’s life-threatening condition and to
monitor it appropriately was also a proximate cause of her death. (Deposition, Page 46,
Lines 9-17.)
         {¶ 20} Dr. Yates testified only as to the care and treatment provided by OSUMC.
He was also of the opinion that McKinney’s immediate cause of death was cardiac
arrest caused by hyperkalemia. (Deposition, Page 54, Lines 13-14.) Dr. Yates agreed
with Dr. Wood that, in accepting the transfer of McKinney from UMH, the standard of
care required that OSUMC physicians ensure that she receive treatment for her
hyperkalemia in very short order, or within a matter of hours, if she were not to be
admitted and dialyzed at OSUMC’s facility. It was his opinion that the standard of care
also required communicating instructions to CMC such that McKinney would receive
high priority status for definitive treatment of her hyperkalemia within “a reasonable
time.”    (Deposition, Page 85, Lines 5-11.)     Dr. Yates defined such time-frame as
including the morning after her transfer “if she could have a cardiac monitor and if she
would be watched closely and be able to have a repeat potassium level some hours
later to make sure she wasn’t getting into trouble. And the next morning would be an
unreasonable amount of time if she couldn’t be monitored that closely or have her
potassium followed.”     (Deposition, Page 87, Lines 9-17.)       He concluded that the
unreasonable delay in providing dialysis directly resulted in her death.
         {¶ 21} In response to plaintiffs’ experts, OSUMC presented the deposition
testimony of Michael E. Yaffe, M.D., who is board-certified in internal medicine. Dr.
Yaffe opined that the care and treatment provided to McKinney by OSUMC was proper
and reasonable, and that such treatment complied with the standard of care.
(Deposition, Page 27, Lines 9-14.) It was his opinion that the temporizing medications
that were administered at UMH would have lasted no more than two-three hours at the
longest with Albuterol, a drug he characterized as not “generally demonstrating a lot of
systemic effect” being the longest acting. (Deposition, Page 17, Lines 8-9.) Thus,
according to Dr. Yaffe, McKinney’s potassium level did not immediately begin to rise
when the temporizing medications lost effect, but instead, “a new level of balance was
achieved” by the time that blood was drawn at OSUMC. (Deposition, Page 82, Lines 1-
7.)
      {¶ 22} Based upon the 5.3 potassium level and normal EKG obtained at
OSUMC, Dr. Yaffe opined that it was not below the standard of care to send McKinney
back to CMC rather than admit her for dialysis at OSUMC’s facility on November 7,
2005. Dr. Yaffe explained the basis for his opinion as follows: “this is a woman who
has chronic kidney failure, chronic kidney disease, and was being treated with dialysis,
and she had missed dialysis that day. People with chronic renal failure on dialysis
tolerate these electrolyte changes certainly much better than someone who has an
acute change in their electrolyte balance.      So the hyperkalemia that was identified
would have been far better tolerated in the patient with chronic renal disease than one
who didn't have chronic renal disease. * * * she did not meet the criteria for acute
dialysis. She wasn't in heart failure. She didn’t have overwhelming metabolic acidosis.
She didn’t have overwhelming signs of pericarditis or other disturbances requiring acute
dialysis. Therefore, delaying the dialysis to the next day after her potassium was re-
measured and was found to be acceptable at 5.3, and in measuring her
electrocardiogram as a mark of physiologic change of hyperkalemia, showing no T-
wave abnormalities of hyperkalemia, that further supported that it was acceptable to
return this patient to the dialysis center where she is known and has her [usual]
dialysis.” (Deposition, Page 28, Lines 1-24.)
      {¶ 23} With respect to McKinney’s cause of death, Dr. Yaffe testified that he was
“unable to conclude that the cardiac arrest that occurred on the morning of November
8th was directly and proximately related to hyperkalemia.” (Deposition, Page 42, Lines
10-12). Dr. Yaffe related that he had “reason to believe that [McKinney’s] potassium
problem had been mitigated and was under control on the night before, as evidenced by
the blood test obtained with a potassium of 5.3, and the normal electrocardiogram that
was obtained at OSU. So, * * * the facts are, entering into this next morning, the
potassium count was under control. * * * this woman [had] a number of co-morbid
medical conditions, including heart disease with left ventricular hypertrophy, history of
hypertension, past [illicit] drug use, including cocaine, diabetes.       She had been a
smoker, and therefore, other causes for an abrupt cardiac arrest as a primary cardiac
arrhythmia, a cardiac arrhythmia related to heart disease, a possible myocardial
infarction, all enter into the realm of possibilities, with none of these conditions reaching
a greater than 51 percent probability, in my estimation.”     (Deposition, Page 42, Lines
14-24; Page 43, Lines 1-8.)
       {¶ 24} With respect to the allegations against CMC, DRC presented the
deposition testimony of Todd R. Wilcox, M.D., who is board-certified in urgent care
medicine and holds an accreditation with the National Commission on Correctional
Health Care.    Dr. Wilcox testified that CMC’s care of McKinney complied with the
standard of care for a correctional health care facility.4 (Deposition, Page 26, Lines 11-
14.) He testified that the transfer of McKinney to CMC complied with the standard of
care in that the “transfer was done in accordance with the rules for transferring patients.
It was a physician to physician discussion. The treatment plan was laid out. The
physician at the receiving facility was comfortable with the treatment plan and felt that
they could meet the treatment plan goals, and there wasn’t anything that was coercive
about the treatment plan. There was no evidence of any sort of dumping of the patient.”
(Deposition, Page 28, Lines 17-25.)
       {¶ 25} Dr. Wilcox also testified regarding whether the standard of care was
violated when McKinney was transferred to CMC without first being dialyzed at
OSUMC. He opined that “I think given the circumstances at the time of her transfer and
the knowledge that was obtained as part of that decision making process, the transfer
was within medical guidelines, and she didn't at that point have any evidence that she
needed to be [dialyzed] imminently.” (Deposition, Page 29, Lines 13-18.)
       {¶ 26} When questioned as to whether it was within the standard of care for Dr.
Ezeneke to have accepted the transfer of McKinney from OSUMC to CMC, Dr. Wilcox
opined that: “we have to remember what everybody's role is here, they [CMC] are a
primary caregiver, and they are relying upon the specialists at the hospital to assist
them with specialty care. So when you send a patient out, and they are evaluated by
the hospital, you receive back the specialty recommendations from their wealth of
physicians at the hospital who have collectively come up with a plan for the care of your
patient. And so when you get a call from those physicians with the plan laid out -- and
to be honest, this is the nicest discharge plan I have ever had. I wish they did this kind
of discharge plan for my facility, because you rarely get that level of communication
about a patient. And so this was done in an exemplary fashion with regard to the
mechanics of the transfer.” (Deposition, Page 31, Lines 12-25; Page 32, Lines 1-3.)
      {¶ 27} With regard to whether McKinney’s life would have been spared if she had
been transferred for dialysis in the early morning hours of November 8, 2005, and the
unequivocal statements of Drs. Wood and Yates that McKinney’s cause of death was
untreated hyperkalemia, Dr. Wilcox testified that: “[b]ased on the dearth of evidence in
the chart with regard to causality, I don’t think that any physician can make that
statement to the level of being medically certain. She is a dialysis patient. That is kind
of her baseline care. But since we don’t know the cause of her cardiac event, and since
there are multiple causes that are likely and happen all the time in patients that have
cardiac events that are unrelated to dialysis, I don't think you can make that statement.”
(Deposition, Page 40, Lines 9-18.)
      {¶ 28} Dr. Wilcox also explained that there were a number of medical issues
faced by end-stage renal disease patients that can cause cardiac arrest or other serious
medical episodes: “[e]nd stage renal disease patients are patients that face a lot of
challenges. * * * They exist really as a result of their dialysis because that’s what keeps
them alive. And they really have a lot of problems over time because of the metabolic
changes that occur as a result of the dialysis and how hard that is on their system. * * *
They have limited physiologic reserve, and so stressors in their life can be much more
significant for them than for many other patients. * * * And you can even have very
minor stressors such as ground level fall, a small cold, things that don’t tend to tip
normal people over that can really be catastrophic for end stage renal disease patients

      4
       It is undisputed that the standard of care for inmates is the same as that for non-inmate patients
because they just don’t have the reserves physiologically to deal with that additional
stress in their daily life.” (Deposition, Page 38, Lines 17-25; Pages 391-10.) In short,
Dr. Wilcox did not agree that cardiac arrest due to hyperkalemia was the definitive
cause of McKinney’s death.
         {¶ 29} Upon review of all of the evidence, the court finds for the following reasons
that plaintiffs have failed to prove their claims by a preponderance of the evidence. The
evidence was insufficient to establish that either OSUMC or DRC deviated from the
standard of care in their medical treatment of McKinney or that any treatment rendered
by them proximately resulted in McKinney’s death. Most significantly, the court is not
persuaded that cardiac arrest as a result of hyperkalemia was the cause of McKinney’s
death and, thus, that OSUMC’s failure to dialyze her at its facility, or that any delay on
the part of OSUMC or CMC in effecting her transport from CMC to Frazier proximately
resulted in her death.
         {¶ 30} One of the initial issues in the case was whether information was properly
communicated between UMH and OSUMC and between OSUMC and CMC.                           With
respect to the former, it is clear that the lab report showing the 7.4 potassium reading
did not reach OSUMC until after McKinney had been transferred to CMC. Additionally,
Dr. Sanders’ emergency room report containing that same information was not dictated
or transcribed until after 6:00 p.m. on November 7, 2005. (Plaintiffs’ Exhibit 5, Page 11-
14.) Consequently, that information could not have been considered by OSUMC in
rendering its treatment decisions. There is no explanation why the lab report itself was
not sent with McKinney when she was transferred to OSUMC.                 Nonetheless, the
preponderance of the evidence establishes that Dr. Sanders did communicate
McKinney’s health status with someone at OSUMC. Neither he nor Dr. Gavin recalled
the specifics of the conversation between UMH and OSUMC.               However, both Drs.
Sanders and Gavin testified credibly and persuasively with regard to the nature of a
physician-to-physician transfer and the type of information that is typically related.
Moreover, Dr. Gavin testified that he was aware that McKinney’s potassium level had
been elevated and that she had been treated with temporizing medications. He further
stated that his role was to “re-evaluate” McKinney or to evaluate “what we had at that


of health care facilities.
point in time.” (Transcript, Page 51, Line 20 and Page 53, Lines 14-15.) Furthermore,
both Dr. Gavin and Yaffe testified that it is the nature of a physician’s role to question
test results such as a 7.4 potassium level because test results can be flawed and an
“abnormal” reading may be equally attributable to an error in the report as to the
patient’s health condition. In sum, there is no definitive answer as to what information
was communicated to OSUMC, however, the court is persuaded that the information
that was available was adequate, and any deviation from the standard of care in the
communication process did not affect the outcome of McKinney’s care at OSUMC.
       {¶ 31} As to the communication of information from OSUMC to CMC, the court
finds the testimony of Dr. Ezeneke to be more credible than that of Dr. Jenkins in that
the court is persuaded that Dr. Ezeneke would not have accepted the transfer of
McKinney had she known that continuous heart monitoring or a repeat blood test was
required. However, having found that cardiac arrest as a result of hyperkalemia was not
the cause of McKinney’s death, any such deviation in the standard of care that the
same represents on the part of Dr. Jenkins is immaterial to the outcome of the case.
       {¶ 32} With respect to the cause of McKinney’s death and any deviation from the
standard of care on the part of OSUMC or CMC, the court finds the testimony of Drs.
Yaffe and Wilcox to be more credible and persuasive than that of Drs. Wood and Yates.
The court was not persuaded by Dr. Wood’s testimony due in large part to his lack of
familiarity with the medical records upon which he based his opinion. Dr. Yates testified
that the obstruction in McKinney’s coronary artery was “pretty close to hyperkalemia on
the list of possibilities” for her death, (Deposition, Page 75, Lines 9-12) but that he ruled
that out due to the coroner’s report. It is well-established that “[t]he coroner’s factual
determinations concerning the manner, mode and cause of death, as expressed in the
coroner’s report and the death certificate, create a nonbinding rebuttable presumption
concerning such facts in the absence of competent, credible evidence to the contrary.
Vargo v. Travelers Ins. Co. (1987), 34 Ohio St.3d 27, at paragraph one of the syllabus.
(R.C. 313.19, construed.) In this case, Dr. Bill Cox, an employee of Bradley Lewis, then
Franklin County Coroner, conducted an “external” examination of McKinney’s body,
reviewed her medical records, and conducted toxicology tests, before determining
McKinney’s cause of death to be cardiac arrest due to hyperkalemia, due to chronic
renal failure, and hypertensive cardiovascular disease. (Transcript, Page 35, Lines 14-
21; Page 36, Lines 19-22.) Although Dr. Cox tested vitreous fluid from McKinney’s eye
to determine her potassium level, the test was conducted on December 5, 2005, nearly
one month after she coded on November 8, 2005. Dr. Lewis testified that the autopsy
was conducted because “this woman was a member of the prison system * * * and had
a history of trauma. And our concern was that this was not, in fact, a traumatic death, or
that the head trauma had contributed to her death.” (Transcript, Page 37, Lines 4-15.)
The court finds that the results of the autopsy are not determinative or persuasive, and
that Dr. Yates’ opinions as to McKinney’s cause of death are flawed as a result of his
deference to such results.
      {¶ 33} “In order to recover against a defendant in a tort action, plaintiff must
produce evidence which furnishes a reasonable basis for sustaining his claim. If his
evidence furnishes a basis for only a guess * * * as to any essential issue in the case,
he fails to sustain the burden as to such issue.” Landon v. Lee Motors, Inc. (1954), 161
Ohio St. 82, at paragraph six of the syllabus. In this case, the court finds that, for a
woman in such poor health as McKinney, it is virtually impossible to determine a
conclusive cause of death.     However, the evidence establishes that McKinney was
monitored in accordance with CMC’s skilled health-care standards throughout the
evening of November 7, 2005, and was examined by a physician at 10:00 a.m., on
November 8, 2005, and found to be in no acute distress or exhibiting any signs of
cardiac distress. The court finds that plaintiffs failed to prove either that OSUMC and
CMC deviated from the required standard of care, or that any care rendered by them
proximately resulted in McKinney’s death. Accordingly, judgment shall be rendered in
favor of defendants.




                                              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
ROBERT GORDON, Admr., etc., et al.

         Plaintiffs

         v.

OHIO STATE UNIVERSITY MEDICAL CENTER, et al.

         Defendants
         Case No. 2007-03471

Judge Clark B. Weaver Sr.

JUDGMENT ENTRY




         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 defendants.                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

cc:

Anne B. Strait                                         James E. Kolenich
Karl W. Schedler                                       9435 Waterstone Boulevard, #140
Assistant Attorneys General                            Cincinnati, Ohio 45249
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

Roger D. Staton
355 Summit Street
Lebanon, Ohio 45036
LH/cmd
Filed October 14, 2010/To S.C. reporter November 18, 2010
