[Cite as Rex v. Univ. of Cincinnati College of Medicine, 2013-Ohio-5110.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Douglas Rex,                                         :

                 Plaintiff-Appellant,                :

v.                                                   :                      No. 13AP-397
                                                                      (Ct. of Cl. No. 2009-04637)
University of Cincinnati                             :
College of Medicine,                                                 (REGULAR CALENDAR)
                                                     :
                 Defendant-Appellee.
                                                     :

                                            D E C I S I O N

                                   Rendered on November 19, 2013


                 Shea, Coffey & Hartmann, Joseph W. Shea, III, Shirley A.
                 Coffey and Michelle A. Cheek, for appellant.

                 Mike DeWine, Attorney General, and Brian M. Kneafsey, Jr.,
                 for appellee.

                             APPEAL from the Court of Claims of Ohio

TYACK, J.
        {¶ 1} Plaintiff-appellant, Douglas Rex, appeals the judgment of the Court of
Claims of Ohio that found, in a medical malpractice case, that Rex failed to prove that his
medical treatment by defendant-appellee, the University of Cincinnati College of
Medicine, fell below the standard of care or that any negligence proximately caused his
injury. For the following reasons, we agree with the Court of Claims and affirm the
decision.
        {¶ 2} Rex assigns three errors for our consideration:
                 1. The trial court erred by allowing inadmissible hearsay to be
                 entered into evidence over objection on the pivotal issue of
                 liability.
No. 13AP-397                                                                              2


              2. The trial court erred by allowing testimony that
              contradicted the witness's previous discovery responses when
              defendant had advance knowledge that the discovery response
              was incorrect and failed to disclose and correct the incorrect
              discovery response pursuant to Civ. R. 26(E)(2).

              3. The trial court erred by deciding against the manifest
              weight of the evidence.

        {¶ 3} This is a medical malpractice case arising from care Rex received while at
the University of Cincinnati College of Medicine ("UCCM"). Rex was diagnosed with
prostate cancer in spring 2008. Rex was referred to Robert Bracken, M.D., to explore
treatment options. At that time, Rex's medical history included a trial fibrillation and two
episodes involving a deep vein thrombosis for which he was prescribed Coumadin, an
anticoagulant that slows the body's ability to stop bleeding. Surgery was decided as the
best option and Rex met with Dr. Bracken on April 30, and May 7, 2008 to discuss risks
and preparation for the surgery. (R. 78, at 325.) Dr. Bracken instructed Rex to stop
taking Coumadin seven days prior to surgery, and he prescribed two daily doses of
Lovenox at 1.45 cc's, the last to be taken the night before the morning surgery. (R. 78, at
338.)   Lovenox is a short-term anticoagulant.       Prescribing Lovenox as opposed to
Coumadin as a temporary replacement leading up to a surgery is known as bridging
therapy.
        {¶ 4} On May 12, 2008, Dr. Bracken performed a robotic wide excision radical
prostatectomy. Typically, this type of surgery only lasts for about two-to-three hours and
the patient normally returns home the next day and can return to work in a little over one
week. The surgery lasted for approximately seven hours and Rex unexpectedly lost a
massive amount of blood, about 2.3 liters. (R. 78, at 533.) Rex was forced to recover in
the Intensive Care Unit ("ICU") for over two weeks and spent additional time in the
hospital and in a rehabilitation center.     After the surgery, Rex began experiencing
difficulty with his vision. The Cincinnati Eye Institute subsequently diagnosed Rex with
Ischemic Optic Neuropathy.
        {¶ 5} This matter was tried in the Court of Claims beginning August 13, 2012 and
the magistrate rendered his decision on January 25, 2013. The trial court judge overruled
Rex's objections and adopted the magistrate's decision finding that Rex failed to prove Dr.
No. 13AP-397                                                                              3


Bracken's preoperative and surgical treatment fell below the standard of care or that any
alleged negligence proximately caused Rex's injury to his eyes. Rex timely appealed the
decision of the Court of Claims.
       {¶ 6} Rex's first assignment of error avers that the trial court should not have
allowed Dr. Bracken's testimony regarding his conversation with two internists regarding
the bridging therapy and the prescribed dosage of Lovenox.
       {¶ 7} As noted earlier, prior to surgery, Rex was taking Coumadin and having
such an anticoagulant in his system during surgery increased the risk of an excessive
amount of bleeding. Rex was taking Coumadin orally and the medication can take about
four or five days to wear off. (R. 78, at 209.)
       {¶ 8} Dr. Bracken prescribed Lovenox as a bridging therapy to reduce the risk of
blood clots between the time when Rex would stop taking Coumadin and when the
surgery was scheduled. Dr. Bracken prescribed 145 milligrams given twice a day for nine
doses. (R. 78, at 336-37.) Dr. Bracken admits that he is not an expert on the proper
dosage for this bridging therapy and therefore claims he sought out the opinions of two
internal medicine doctors, Dr. Bradley Mathis and Dr. Greg Kennebeck. These internal
medicine physicians, he testified, recommended the Lovenox dosage he prescribed. (R.
78, at 336.)
       {¶ 9} The fact or content of the conversation with these two internists was not
disclosed to appellant and his counsel until trial. Therefore, counsel had no opportunity
to depose them or call them as witnesses. Dr. Bracken claims that, when preparing for
trial, an associate reminded him of this conversation which Dr. Bracken had not
remembered previously.
       {¶ 10} Counsel for appellant claims the court erred in allowing Dr. Bracken to
testify about this conversation, because counsel views the conversation as hearsay which
goes to the pivotal issue of liability. UCCM argues that the trial court was within its
discretion in allowing testimony concerning the conversation with the internal medicine
physicians.
       {¶ 11} "Since Evid.R. 802 expressly states that 'hearsay is not admissible,' a trial
court's decision to admit hearsay is not governed by the test of abuse of discretion.
Instead, errors relating to the trial court's admission of hearsay must be reviewed in light
No. 13AP-397                                                                              4


of Evid.R. 103(A) and Crim.R. 52(A), which provide that such errors are harmless unless
the record demonstrates that the errors affected a substantial right of the party." State v.
Sapp, 10th Dist. No. 94APA10-1524 (Aug. 15, 1995) quoting State v. Sorrels, 71 Ohio
App.3d 162, 165 (1st Dist.1991).
       {¶ 12} We examine, therefore, the testimony of Dr. Bracken to determine if it was
hearsay or proof of a verbal act. The testimony included the following:
              Q. And with reference to the prescription for Lovenox, how
              was it you determined the amount of the dosage?

              A. Well, during my deposition, I actually had forgotten how I
              had done that. But when I was preparing myself for this trial,
              I had wondered how I had come up with the dose of Lovenox
              that was prescribed because that's not something I have at the
              tip of my tongue.

              And I asked our male nurse, Neil Frankl, and he reminded me
              that both of us had gone down to the internal medicine office
              of doctors * * *.

              And so I usually go down there if I need some help. And I talk
              to whichever of the five or six internists who are there that I
              trust.

              On that particular day, it was Bradley Mathis and Greg
              Kennebeck. And after talking to them, I wrote this order.

              Q. And with reference to the calculation, how was it that the
              calculation was made as far as the dosage?

              A. Well, the dose is one milligram per kilogram twice a day,
              BID. Now, Mr. Rex was 320 pounds. There's 2.2 pounds per
              kilogram. And so if you divide 320 by 2.2, you come up with
              145. So what we wanted him to have was a -- 145 milligrams
              given twice a day for nine doses. And this was at the
              recommendation of my two colleagues.

              MR. SHEA: Objection, hearsay, Your Honor.

(R. 78, at 335-37.) Appellant argues that this statement is hearsay, that Dr. Bracken is
repeating the two internists' recommendation for the prescription for Lovenox. UCCM
No. 13AP-397                                                                             5


argues the answer did not reveal what was said to him, only that Dr. Bracken had spoken
to them about it. Neither side is literally correct.
       {¶ 13} Hearsay is an out-of-court statement offered in evidence to prove the truth
of the matter asserted. Evid.R. 801(C). Dr. Bracken's statement is being offered to
answer the question of how the dosage was calculated. There is no question in this
instance as to what the dosage was or that the internists suggested some other dosage.
This statement is evidence of a verbal act offered for the fact that the internists stated
these calculations for a dosage not for the truth or falsity of the amount prescribed. The
amount prescribed was not in debate at trial.
       {¶ 14} Appellants may question whether the dosage was correct or whether the
conversation took place at all, but Dr. Bracken's answer as to how he calculated the dosage
prescribed is permissible. The statements are verbal acts because they are offered for the
fact they were said, not for the truth of the matter asserted.
       {¶ 15} UCCM makes the argument that Rex's counsel failed to timely object to Dr.
Bracken's testimony about consulting the two internists. The trial testimony shows that
an objection was clearly made at the point a suspected hearsay statement was actually
made. (R. 78, at 337.) This argument is not well-taken.
       {¶ 16} However, because the conversations were verbal acts, not hearsay, the first
assignment of error is overruled.
       {¶ 17} In the third assignment of error, Rex argues that the decision is not
supported by the manifest weight of the evidence. Examining the whole record, we find
that the trial court's decision is supported by competent and credible evidence. The trial
court found Dr. Bracken's testimony credible and that any alleged negligence in
prescribing Lovenox did not proximately cause Rex injury to his vision.         While the
evidence is susceptible to more than one construction, we cannot find in this case that the
trial court's judgment is unsupported by credible evidence.
       {¶ 18} Decisions supported by competent, credible evidence going to all the
essential elements of the case will not be reversed as being against the manifest weight of
the evidence. Melvin v. Ohio State Univ. Med. Ctr., 10th Dist. No. 10AP-975, 2011-Ohio-
3317, ¶ 34; See C. E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d 279 (1978). A trial
court's findings of fact are presumed correct, and "the weight to be given the evidence and
No. 13AP-397                                                                               6


the credibility of the witnesses are primarily for the trier of fact to decide." Eagle Land
Title Agency, Inc. v. Affiliated Mtge. Co., 10th Dist. No. 95APG12-1617 (June 27, 1996),
citing State v. Thomas, 70 Ohio St.2d 79 (1982). This presumption arises because the
trial judge "is best able to view the witnesses and observe their demeanor, gestures and
voice inflections, and use these observations in weighing the credibility of the proffered
testimony." Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). The trier of fact
is free to believe or disbelieve all or any of the testimony. State v. J.L.S., 10th Dist. No.
08AP-33, 2009-Ohio-1547. "If the evidence is susceptible of more than one construction,
the reviewing court is bound to give it that interpretation which is consistent with the
verdict and judgment, most favorable to sustaining the verdict and judgment." Seasons
Coal Co. at 80, fn. 3 (citing 5 Ohio Jurisprudence 3d Appellate Review Section 603, at
191-92 (1978)).
       {¶ 19} The magistrate found that the surgical bleeding did not cause damage to
Rex's vision.
       {¶ 20} "Furthermore, the court finds that plaintiffs failed to prove that the surgical
bleeding proximately caused plaintiff's vision difficulties."     (R. 75, Decision of the
Magistrate, at 6.) The record demonstrated from Dr. Bracken's testimony that Rex's
bleeding during surgery was not consistent with a patient who was over-anticoagulated:
                Q. And from all those numerous blood vessels that you
                transected during dropping the bladder, did you notice any
                abnormal bleeding from those blood vessels?

                A. No.

                Q. Did you notice it from any of the other cut sites as the
                surgery progressed?

                A. No. * * *

                None of those sites bled. The only site that bled was the area
                around the bladder neck.

                ***

                Q. Have you treated other patients that have had robotic
                prostatectomy that have been anticoagulated prior to surgery?
No. 13AP-397                                                                          7


             A. All of our patients are anticoagulated prior to surgery. As I
             said earlier, we are concerned about deep vein thrombosis and
             pulmonary embolus.

             Q. Have you ever had any patients that you felt were
             overanticoagulated as far as when you got in there, you
             noticed an excessive amount of --

             A. I have not.

             Q. Do you know what that would look like in a surgical site if
             a patient was overanticoagulated?

             A. Well, I have been involved with other kinds of surgery
             where the person bled from everything that was cut. And,
             fortunately, that's an uncommon occurrence. * * * And in that
             setting, it was from every surface. It was kind of scary really.
             Everything that was cut, was bleeding.

             So if that was the case in Mr. Rex, we would have seen
             bleeding from the trocar sites. He would have had bruising to
             his abdominal wall after surgery, if not during surgery. He
             would have bled from every single blood vessel that was cut,
             and that did not happen.

             So I think that the kind of bleeding you're talking about, it
             fortunately is very unusual. I have not encountered it in
             patients that I have treated with robot prostatectomy and I
             did not encounter it in Mr. Rex.

(R. 78, Dr. Bracken testimony, at 350-53.)

      {¶ 21} UCCM's expert witness, Dr. Abaza, also testified as to whether the surgical
bleeding was consistent with overanticoagulation:
             Q. With reference to a patient if you assume a patient is
             overanticoagulated, would you expect that patient to show
             signs of bleeding in a certain manner versus a patient who is
             not overanticoagulated?

             A. Yeah. I've operated on patients who have been fully
             anticoagulated, meaning a therapeutic dose because it was
             unsafe for them to be on a prophylactic dose of
             anticoagulation.
No. 13AP-397                                                                         8


              And I've also operated on patients who have been
              overanticoagulated, meaning that they're super-therapeutic, a
              level that you wouldn't want them to be at in their daily life.
              You know, they're above what would be considered a
              therapeutic dose.

              In those patients who are super-therapeutic, typically those
              are emergency operations where you don't really have much
              choice but to operate on them because you have to. And in
              those situations, typically what you see is just that all of the
              body surfaces upon disruption are oozy. In other words, it's
              not individual vessels that are bleeding, it's just that
              everything is kind of stained with blood because those little,
              tiny bleeders that stop on their own typically just kind of ooze.
              And so it's kind of everything you touch bleeds is typically how
              we describe it.

              Q. And is your understanding of Mr. Rex's condition, is it like
              what you just described or not?

              A. Again, I'm relying on the operative note and I didn't see
              that description in there.

              Q. And would that lend -- you tend to believe that Mr. Rex's
              bleeding was or was not caused by overanticoagulation?


              A. Again, you know, to my best ability to -- I would say that
              the bleeding that occurred during the surgery likely would
              have occurred anyway without any anticoagulation, because
              bleeding occurs during surgery even in the absence of all
              anticoagulation.

              What I can't say is whether it may have lasted longer than it
              would have otherwise without the anticoagulation or not.

(R. 78, Dr. Abaza testimony, at 431-33.)

       {¶ 22} On cross-examination, Dr. Abaza clarified that the recorded blood loss is
not necessarily evidence of overanticoagulation:
              Q. And I think that you told me as well if they're
              overanticoagulated, the problem is that it will cause more
              bleeding from surfaces that otherwise would stop sooner; is
              that fair?
No. 13AP-397                                                                         9


             A. Yeah. Again, you know, in a patient who is super-
             therapeutic on anticoagulation, they just kind of ooze from
             everywhere. You know, again, the description that you'll hear
             from surgeons is just everything I touched was bleeding.

             Q. Well, I mean[,] this patient began to bleed early and it just
             kept on going, didn't it? If these times -- did you look at the
             times and how much the bleeding was? We started off with
             150, then 200, and then 15 minutes, another 50. I mean, we
             get down here at 6:30, in that 15 minutes between 12:00 and
             12:15, he started to bleed. He had 150 by 9:15 and that's about
             all you ever have in the whole surgery, isn't it?

             A. Which question do you want me to answer?

             Q. Well, this bleeding appears that once it started, it really
             didn't stop?

             A. I think you have to come and watch these surgeries with us
             a few times because it doesn't really work that way.

             It may have been that during those 15 minutes, Dr. Bracken
             said to his assistant, hey, suck out his clot over here. So all of
             a sudden now, the canister starts to fill out. And then a half
             an hour goes by and the sucker is not used. And then Dr.
             Bracken says, hey, look, get this spool over here. And now it --
             do you see what I'm saying?

             Q. Yes.

             A. So it's not literally that you can take those numbers that
             the anesthesiologist is just peering over at the canister and
             looking at every so often and thinking that that's actually
             what's happening inside the patient's body.

(R. 78, Dr. Abaza testimony, at 460-62.)

      {¶ 23} The cross-examination of appellant's witness, Dr. Mathers, also touched on
whether the blood loss was an indication of overanticoagulation:
             Q. Dr. Bracken has testified, and will testify, that the blood
             was not oozing from the multiple cut surgical sites inside of
             Mr. Rex. If you assume that to be true, that doesn't show --
             the fact that it's not oozing from multiple sites doesn't show
             that he was necessarily overanticoagulated, does it?
No. 13AP-397                                                                                   10


               A. In reviewing the anesthesia record with the surgery start
               time at approximately 8:00 in the morning, by 11:00 in the
               morning, they had already had 400 CCs blood loss, which is, I
               believe, twice what Dr. Abaza says his average is for an entire
               case. And that was after three hours of surgery. So that was a
               fair amount of blood seeping from somewhere or coming from
               somewhere in that three-hour period. And that's before we
               got into the heavy bleeding.

               Q. But my question was: With Dr. Bracken testifying he
               noticed that the site of bleeding was only in one area behind
               the bladder and it wasn't oozing from any of the other cut
               sites, that would indicate, more likely than not, that it wasn't
               from overanticoagulation, where these other cut sites all
               would ooze blood?

               A. That's his testimony.

               Q. And you as a surgeon would have to agree with that; would
               you not? If a person's overanticoagulated, you would expect
               them to ooze blood from every cut site?

               A. My answer previously was that within that first three
               hours, he had already lost 400 milliliters of blood. It was
               coming from somewhere. And by that time, he probably
               hadn't gotten to the posterior bladder neck.

(R. 78, Dr. Mathers testimony, at 260-61.)

       {¶ 24} This evidence can support the interpretation that Rex was not
overanticoagulated and we are bound to find this interpretation to support the trial
court's interpretation of the facts. See Seasons Coal Co.
       {¶ 25} The record does not really offer any contradicting evidence that Rex's
bleeding was consistent with being overanticoagulated. Appellant anticipated that the
trial court would find the excessive bleeding was a result of overanticoagulation. There is
sufficient evidence that the trial court, as trier of fact, could find that the excessive surgical
bleeding was a result of some particular site around the bladder neck that continued to
bleed during surgery as Dr. Bracken testified.
       {¶ 26} With Rex not exhibiting signs of overanticoagulation, it becomes a moot
point whether Dr. Bracken met the appropriate standard of care in prescribing Lovenox.
No. 13AP-397                                                                            11


Any possible failure in properly prescribing Lovenox cannot be said to have proximately
caused any injury to Rex, whether that injury be his vision damage or his extended stay in
the ICU.    We find the trial court decision is supported by competent and credible
evidence.
        {¶ 27} The third assignment of error is overruled.
        {¶ 28} The second assignment of error argues that the trial court improperly
allowed Dr. Bracken to testify about consulting the two internists about the proper dosage
of Lovenox because Dr. Bracken failed to correct his previous discovery response and did
not follow Civ.R. 26(E)(2). As previously discussed, we are bound to interpret that the
trial court found that the excessive bleeding was not a result of overanticoagulation.
Therefore, Dr. Bracken's prescription of Lovenox did not proximately cause Rex's injury.
Any possible violation of Civ.R. 26(E)(2) is therefore harmless. See Gordon v. Ohio State
Univ., 10th Dist. No. 10AP-1058, 2011-Ohio-5057, ¶ 88 ("even if the trial court erred in
excluding Dr. Yates' testimony as to ODRC's alleged deviation from the standard of care,
the trial court ultimately concluded that appellants failed to prove that any deviation in
the standard of care provided by ODRC proximately caused McKinney's death. Thus, any
error was harmless."). With a possible violation of Civ.R. 26(E)(2) rendered harmless by
the trial court's determination of causation addressed earlier, the second assignment of
error becomes moot.
        {¶ 29} Rex's second assignment of error is rendered moot.
        {¶ 30} Having overruled the first and third assignments of error and rendering
moot the second assignment of error, we affirm the judgment of the Court of Claims of
Ohio.
                                                                      Judgment affirmed.
                                   CONNOR, J., concurs.
                         DORRIAN, J., concurs in judgment only.

DORRIAN, J., concurring in judgment only.

        {¶ 31} I respectfully concur in judgment only as the evidence challenged by
appellant does not address the trial court's finding of no proximate cause.
