[Cite as Yates v. Ohio State Univ. Med. Ctr., 2012-Ohio-6316.]




                                                         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

WILMA S. YATES, et al.

        Plaintiffs

        v.

THE OHIO STATE UNIVERSITY MEDICAL CENTER

        Defendant

Case No. 2010-02189

Judge Joseph T. Clark

DECISION

        {¶ 1} Wilma Yates, hereinafter “plaintiff,” brought this action alleging medical
negligence; her husband, Roger Yates, also asserts a claim for loss of consortium. The
issues of liability and damages were bifurcated and the case proceeded to trial on the
issue of liability.
        {¶ 2} Plaintiff testified by way of deposition that in the spring of 2008, she visited
her primary care physician, Charles R. Keller, D.O., at his office in Logan, Ohio with
complaints of rectal bleeding and pain in her side. Dr. Keller referred plaintiff to see
Michael S. Tornwall, M.D., a general surgeon at the Hocking Valley Community Hospital
in Logan. Dr. Tornwall had performed a colonoscopy on plaintiff in 2003, at which time
he removed two polyps that had the potential to become cancerous.                  Dr. Tornwall
testified via deposition that when plaintiff was referred to him in 2008, based upon her
symptoms and history, he decided that she should undergo another colonoscopy.
        {¶ 3} Dr. Tornwall performed the procedure on May 15, 2008, and in his operative
report he wrote, in part: “At the hepatic flexure there was what appears to be at least an
adenoma with a focus, it was concerning for possible invasive cancer. Multiple biopsies
were obtained of this region.” (Joint Exhibit 1A, p. 128.) (The hepatic flexure is the
point where the ascending colon turns into the transverse colon, and it is located next to
the liver.)   The operative report noted that the polyp at the hepatic flexure was
ulcerated, and, while the report did not detail the size of the polyp, Dr. Tornwall later
testified that he could recall it being about 3 to 3.5 centimeters in diameter. Dr. Tornwall
stated that he felt it would be difficult for him to attempt to remove the polyp at that time
without risking perforation of the bowel.     Also during the colonoscopy, Dr. Tornwall
attempted to remove what appeared to be a benign polyp from the sigmoid colon, but
he abandoned that effort because he was not able to obtain a good view of it and
because he was concerned that plaintiff’s anesthesia would soon wear off.
       {¶ 4} As a result of his findings during the colonoscopy, Dr. Tornwall
recommended that plaintiff have a follow-up evaluation with a specialist in the next few
weeks regardless of the outcome of the biopsy studies. (On May 16, 2009, a pathology
report was issued which stated that the biopsy samples were determined to be benign
“portions of mildly inflamed hyperplastic polyp.” Joint Exhibit 4, p. 28.) Plaintiff testified
that Dr. Keller consequently arranged an appointment for her to see Mark Arnold, M.D.,
who practices colon and rectal surgery at The Ohio State University Medical Center.
Dr. Arnold is employed with defendant as a professor of surgery and is the vice
chairman of the department of surgery.
       {¶ 5} Plaintiff and her husband met with Dr. Arnold at his office on June 3, 2008,
and it was determined at that time that plaintiff would undergo further evaluation via
colonoscopy. On July 24, 2008, Dr. Arnold performed the colonoscopy at The Ohio
State University Medical Center. During the procedure, Dr. Arnold removed a benign
polyp from the sigmoid colon, consistent with the polyp observed in that region by Dr.
Tornwall, and he also found diverticulosis in the sigmoid colon.           According to his
operative report, the examination was otherwise normal and it was recommended that
plaintiff undergo a follow-up colonoscopy in two years. (Joint Exhibit 4, p. 2.)
       {¶ 6} Plaintiff testified that after learning of Dr. Arnold’s findings and reviewing
film of the procedure, she grew concerned that he may have not sufficiently examined
the area of the colon with which Dr. Tornwall was concerned for a potentially malignant
polyp. Plaintiff stated that she telephoned Dr. Arnold’s office to inquire further and was
informed that Dr. Arnold had only seen inflammation in the area of concern, but that he
recommended for her to schedule another colonoscopy in six months.              Dr. Arnold
testified that he has some recollection of plaintiff contacting his nurse, and that he
consequently reviewed her records and confirmed that no abnormalities were found at
the hepatic flexure. He added, however, that in light of plaintiff’s concern, he revised his
original recommendation regarding a follow-up colonoscopy such that she was advised
to have one in six months rather than in two years. (Joint Exhibit 4, p. 12.)
       {¶ 7} Plaintiff stated that a few months later, she began to feel weak and
developed pain in the right side of her abdomen. As a result, she visited Dr. Keller for
an examination on February 20, 2009. That visit was followed by a series of diagnostic
tests over the next several weeks which revealed that plaintiff was suffering from
metastatic colon cancer with metastasis to the liver. Plaintiff elected to treat the cancer
through chemotherapy and a surgical procedure that removed half her colon, known as
a hemicolectomy. The pathology analysis that was performed after the hemicolectomy
revealed a malignant polyp that was located 2.5 centimeters, or about one inch, from
the ileocecal valve, near the bottom of the ascending colon. (Joint Exhibit 1B, p. 781.)
       {¶ 8} In her complaint, plaintiff alleges that when Dr. Arnold performed the follow-
up colonoscopy, he failed to focus on the area of the colon with which Dr. Tornwall was
concerned, and that this caused a delay in the detection of her cancer and thereby
adversely affected her prognosis. “To prevail on a claim for medical negligence, a
plaintiff must demonstrate the following three elements: (1) the existence of a standard
of care within the medical community; (2) the defendant’s breach of that standard; and
(3) proximate cause between the defendant’s breach and the plaintiff’s injury.” Fritch v.
Univ. of Toledo College of Med., 10th Dist. No. 11AP-103, 2011-Ohio-4518, ¶ 6.
       {¶ 9} “In order to establish medical [negligence], it must be shown by a
preponderance of the 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 or circumstances, and that the
injury complained of was the direct result of such doing or failing to do some one or
more of such particular things.” Bruni v. Tatsumi, 46 Ohio St.2d 127, 131 (1976).
      {¶ 10} Plaintiffs presented expert testimony from Jeffrey Snow, M.D., who is
board certified in both colo-rectal and general surgery and practices the same in Fort
Lauderdale, Florida. In Dr. Snow’s opinion, the malignant polyp that was found near the
ileocecal valve after the hemicolectomy was the same polyp that Dr. Tornwall had
described as being near the hepatic flexure. Dr. Snow explained that in light of both the
unusual degree of twisting in plaintiff’s colon and the difficulty that Dr. Tornwall had in
maneuvering the scope through the colon, Dr. Tornwall’s identification of the polyp as
being near the hepatic flexure was a “rough location.” According to Dr. Snow, the
hepatic flexure is about five to six inches from the ileocecal valve, and based upon Dr.
Tornwall’s operative report and the pathology report from the hemicolectomy, he
believes that Dr. Tornwall’s stated area of concern was about four to five inches from
the actual location. He acknowledged, though, that the ileocecal valve is an easily
identifiable landmark that Dr. Tornwall recorded seeing during his colonoscopy and that
was very near the malignant polyp, yet Dr. Tornwall did not reference this feature in
describing the area that he was concerned about.
       {¶ 11} Concerning the standard of care, Dr. Snow testified that when a patient is
referred for a follow-up or second-opinion colonoscopy, the physician receiving that
referral has a duty to understand why it was made, and that this requires reviewing the
appropriate medical records and, if necessary, contacting the referring physician. He
further testified that the care rendered by the physician must be focused on the area of
concern that prompted the referral.
       {¶ 12} Dr. Snow testified that there is no documentation in the medical records to
show that Dr. Arnold paid special attention to the area of Dr. Tornwall’s concern, the
hepatic flexure, and that the records instead reflect that he performed a routine, general
colonoscopy. Dr. Snow opined that based upon the medical records in this case, he
believes that Dr. Arnold failed to pay special attention to the hepatic flexure, including
spending additional time in that area during the colonoscopy and making extra passes
with the scope in that area, and thereby violated the standard of care.                 He
acknowledged, however, that if Dr. Arnold had paid sufficient attention to the area of
concern, the standard of care of would have been met whether or not he specifically
documented any special attention given to that area.
      {¶ 13} In Dr. Snow’s opinion, if Dr. Arnold had paid sufficient attention to the area
that Dr. Tornwall was concerned with at the hepatic flexure, he would have seen the
malignant polyp that was ultimately found a few inches from there. Nonetheless, Dr.
Snow admitted that colonoscopies are not foolproof in that they can fail to detect polyps,
particularly because of anatomical differences in patients, such as folding or twisting of
the bowel, or pockets of stool adhered to the bowel that can hide or obscure polyps. Dr.
Snow stated that plaintiff’s colon had more twisting than is normal.
      {¶ 14} Plaintiffs also presented expert testimony from Barry Singer, M.D., who
practices medical oncology and hematology in Norristown, Pennsylvania, and who is
board certified in internal medicine, with sub-specialities in oncology and hematology.
Dr. Singer opined that the polyp described by Dr. Tornwall was the same polyp removed
during the hemicolectomy. According to Dr. Singer, Dr. Tornwall’s description of the
polyp in his operative report and in his deposition testimony was consistent with the
description of the polyp that was analyzed in the hemicolectomy pathology report. He
stated that the area of Dr. Tornwall’s concern, at the hepatic flexure, was about four to
five inches from the ileocecal valve region where the malignant polyp was found.
      {¶ 15} Dr. Singer testified that the polyp removed during the hemicolectomy was
poorly differentiated, and that this characteristic is indicative of an aggressive, fast-
growing variety of cancer.      But, he acknowledged that subsequent to plaintiff’s
diagnosis, the growth rate of the masses on plaintiff’s liver was actually documented to
be quite slow.
      {¶ 16} Regardless, Dr. Singer’s opinion is that during the relevant period of time,
the cancer was growing at an aggressive pace. He opined that when Dr. Tornwall
performed his colonoscopy in May 2008, the cancer was at “stage two,” meaning that it
was confined to the bowel. He further opined that when Dr. Arnold performed the
follow-up colonoscopy in July 2008, the cancer had progressed to early stage three,
meaning that minimal metastasis to the lymph nodes had occurred. According to Dr.
Singer, in general, colon cancer is capable of curative treatment only until early stage
three. Dr. Singer thus opined that if plaintiff had been diagnosed with colon cancer at or
about the time of the follow-up colonoscopy in July 2008, it would have been possible
for her to survive the disease. But, Dr. Singer stated that plaintiff’s diagnosis did not
occur until the cancer was at stage four, meaning that it had metastasized from the
lymph nodes to other organs, and that a diagnosis at that stage carries no chance of
survival.
          {¶ 17} Defendant presented expert testimony from William Ciroco, M.D., a colo-
rectal surgeon who practices in Detroit. Dr. Ciroco opined that the polyp Dr. Tornwall
described at the hepatic flexure was not the same polyp that was ultimately found near
the ileocecal valve. Dr. Ciroco testified that the ileocecal valve is an easily identifiable
landmark, that the hepatic flexure is in a distinctly separate area from the ileocecal
valve, and that it is very unlikely that an experienced colonoscopist such as Dr. Tornwall
would have so grossly mistaken the area of concern.
          {¶ 18} In Dr. Ciroco’s opinion, what Dr. Tornwall observed was a hyperplastic
polyp, meaning a small lesion not believed to be pre-cancerous, at the hepatic flexure.
He further opined that this hyperplastic polyp was either substantially removed by virtue
of Dr. Tornwall removing several specimens for biopsy, or it resolved on its own. Dr.
Ciroco added that while Dr. Tornwall remembered in his deposition that the polyp he
saw was about three centimeters across, which is similar to the size of the malignant
polyp that was ultimately removed, he made no such size estimate in his operative
report.
          {¶ 19} Dr. Ciroco stated that he performs between 250 and 300 colonoscopies
annually, including “second-opinion” or “follow-up” procedures. He explained that the
standard of care in treating patients who have been referred for such procedures is that,
if the physician can understand the basis for the referral upon reviewing the relevant
medical records, it is not necessary to contact the referring physician.        He further
explained that the standard of care during the performance of the colonoscopy requires
that the area of concern be thoroughly examined, but also that the entire bowel be
examined, particularly because the area of concern may have been inaccurately
described. He opined that the 45-minute duration of the colonoscopy performed by Dr.
Arnold is longer than is normal for a routine colonoscopy, and it was an appropriate
length of time in which to perform a follow-up colonoscopy.
      {¶ 20} Defendant also presented expert testimony from Ronald Blum, M.D., a
medical oncologist who serves as the director of the cancer center and programs at
both Beth Israel Medical Center and St. Luke’s Roosevelt Hospital Center in New York
City, and he is also a professor of medicine at Albert Einstein College of Medicine. Dr.
Blum is board certified in internal medicine, with a sub-specialty certification in medical
oncology.
      {¶ 21} Dr. Blum opined that Dr. Tornwall’s findings regarding the area of concern
were ambiguous, and that what Dr. Tornwall probably saw was an inflammatory polyp.
Dr. Blum noted that the pathology report from the biopsy specimens of the hepatic
flexure indeed documented inflammation, and he explained that the malignant tumor
that was ultimately removed was approximately 20 centimeters from the hepatic flexure,
which he considers to be outside the area of Dr. Tornwall’s concern.
      {¶ 22} Regarding the growth rate of plaintiff’s cancer, Dr. Blum acknowledged
that poorly differentiated masses such as plaintiff’s tend to be associated with a high
growth rate, but he stated a slow growth rate is actually demonstrated by the facts of
plaintiff’s case, such as the documented growth rate of the tumors on the liver, as well
as the fact that the metastasis to the liver was well-developed by the time it was
detected in March 2009. He added that by late 2008 and early 2009, when plaintiff
manifested pain and other clinical symptoms of stage four cancer, the cancer had
probably been present long before then without symptoms. Dr. Blum testified that this
type of cancer generally grows at a consistent rate over time, and that the known growth
rate that was documented for the tumors on the liver can thus be extrapolated backward
in time to determine the cancer’s overall progress.
      {¶ 23} In Dr. Blum’s opinion, plaintiff had stage four cancer with metastasis to the
liver in the spring and summer of 2008, when both Dr. Tornwall and Dr. Arnold
performed their respective colonoscopies. According to Dr. Blum, a patient such as
plaintiff with metastatic colon cancer has a 20 percent survival rate over five years, and
his opinion is that plaintiff’s prognosis would have been the same even if Dr. Arnold had
detected the malignant tumor in July 2008.
      {¶ 24} Upon review of the evidence presented at trial, the court finds that the
treatment rendered by Dr. Arnold complied with the relevant standard of care at all
times. The court finds that Dr. Arnold, who performs hundreds of “follow-up” or “referral”
colonoscopies every year, understood the concern that prompted plaintiff’s referral and
performed an appropriate follow-up colonoscopy that included a thorough evaluation of
the hepatic flexure of the colon, which is the location identified by Dr. Tornwall as
concerning for a possible malignant polyp.
       {¶ 25} The court finds that the testimony of Drs. Blum and Ciroco demonstrates
that what Dr. Tornwall was concerned about at the hepatic flexure was actually a benign
inflammatory or hyperplastic polyp that either resolved on its own or was removed by
the taking of biopsy samples. Indeed, the six biopsy specimens that Dr. Tornwall took
from the hepatic flexure were determined upon pathology analysis to be benign
“portions of mildly inflamed hyperplastic polyp.” (Joint Exhibit 4, p. 28.)
       {¶ 26} The pathology analysis performed after the hemicolectomy revealed one
malignant polyp that was located about one inch from the ileocecal valve that serves as
landmark at the bottom of the ascending colon, several inches from the hepatic flexure
that marks the top of the ascending colon. The court finds that the malignant polyp was
thus outside the area of concern that had prompted plaintiff’s referral to Dr. Arnold.
While Dr. Arnold’s credible testimony demonstrates that he paid special attention to the
hepatic flexure, no matter how thoroughly he examined that area, he would not have
seen a polyp there.      According to Dr. Ciroco, a physician performing a follow-up
colonoscopy must also thoroughly look beyond the area of concern inasmuch as the
referring physician could have inaccurately identified it, and Dr. Ciroco convincingly
testified that that was exactly what Dr. Arnold did in this case.
       {¶ 27} Although Dr. Arnold admittedly failed to detect the polyp near the ileocecal
valve, the expert witnesses in this case agreed that colonoscopies are not perfect
procedures and that due to issues such as folding or twisting of the bowel, or pockets of
stool adhering to the bowel, the standard of care does not require that every polyp be
detected.
       {¶ 28} Additionally, the court finds that the greater weight of the evidence does
not support the causation element of plaintiffs’ claim. In the court’s opinion, Dr. Blum’s
testimony concerning the growth rate of plaintiff’s cancer corresponds to the medical
records better and was more persuasive than the testimony of Dr. Singer, and
according to Dr. Blum, plaintiff’s cancer had already metastasized to the liver by the
time of the follow-up colonoscopy.      All the experts in this case agreed that once
metastasis to the liver had occurred, plaintiff’s prognosis was terminal.
       {¶ 29} Given that the court finds that plaintiffs have failed to prove their claim of
medical negligence, the derivative claim for loss of consortium also must fail. Bowen v.
Kil-Kare, Inc., 63 Ohio St.3d 84, 93 (1992).
       {¶ 30} Based on the foregoing, judgment shall be entered 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



WILMA S. YATES, et al.

      Plaintiffs

      v.

THE OHIO STATE UNIVERSITY MEDICAL CENTER

      Defendant

Case No. 2010-02189

Judge Joseph T. Clark

JUDGMENT ENTRY

      {¶ 31} 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 defendant. 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.



                                         _____________________________________
                                         JOSEPH T. CLARK
                                         Judge

cc:
Ashley L. Oliker                    Gordon D. Evans II
Karl W. Schedler                    Mark E. Defossez
Assistant Attorneys General         495 South High Street, Suite 300
150 East Gay Street, 18th Floor     Columbus, Ohio 43215
Columbus, Ohio 43215-3130

001
Filed July 9, 2012
To S.C. Reporter January 16, 2013
