[Cite as McNeilan v. Ohio State Univ. Med. Ctr., 2009-Ohio-7027.]

                                                        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




RANDALL L. MCNEILAN, Exec.

        Plaintiff

        v.

OHIO STATE UNIVERSITY MEDICAL CENTER

        Defendant
        Case No. 2006-07449

Judge J. Craig Wright
Magistrate Lewis F. Pettigrew

MAGISTRATE DECISION




        {¶ 1} Plaintiff brings this action on behalf of the estate of the decedent, Harley
Nutt, alleging wrongful death. Plaintiff asserts that Mr. Nutt died as a result of peritonitis
on January 31, 2004, several days after he underwent heart bypass and aortic valve
replacement (AVR) surgery.              According to plaintiff, the peritonitis was caused by
impaired blood flow to an area of the small intestine that resulted in perforation and
leakage of bowel contents into the abdominal cavity.                The issues of liability and
damages were bifurcated and the case proceeded to trial on the issue of liability.
        {¶ 2} Mr. Nutt was diagnosed with mouth and throat cancer for which he
underwent surgical resection in 2003. The cancer recurred and, prior to undergoing
additional surgery, Mr. Nutt was referred to Dr. Michler for a cardiac evaluation. Dr.
Michler determined that Mr. Nutt had severe coronary artery disease for which he
recommended heart bypass surgery. The surgery took place on Friday, January 23,
2004.
Case No. 2006-07449                        -2-                MAGISTRATE DECISION

      {¶ 3} The decedent’s daughter, Tonya Sartin, testified that she received a
phone call from Dr. Michler from the operating room notifying her that her father would
also need to have an AVR performed. After she gave verbal consent for the additional
procedure, the surgery commenced. Mr. Nutt came out of surgery in the early afternoon
and was then transferred to the Surgical Intensive Care Unit. Tonya testified that her
father was talking to her that night.    Mr. Nutt was returned to a regular room on
Saturday afternoon. Tonya recalled that he ate ice cream and drank some milk. On
Sunday, he ambulated in the hallway with assistance but when he complained of
dizziness, he was allowed to rest in a chair. Tonya testified that her father ate mostly
soft foods that day and that he spent much of the day sleeping.
      {¶ 4} On Monday, Mr. Nutt was discharged to home with the understanding that
his family members would assist with his care. According to Tonya, her father slept
most of Monday, only arising to walk to the bathroom and then return to bed. On
Tuesday morning he complained that he was not feeling well and he started vomiting.
The family members called the emergency squad and the paramedics came and
evaluated Mr. Nutt. Mr. Nutt was not transported to the hospital at that time. Tonya
recalled that later that same day Mr. Nutt ate cottage cheese, mashed potatoes, and
that he drank some milk.
      {¶ 5} Tonya stated that early on Wednesday morning she called into Dr.
Michler’s office and talked with a physician’s assistant about the ongoing vomiting. She
testified that he replied that the vomiting could be a side effect of the pain medication.
She also stated that she does not recall being told to bring her father to the office or to
the emergency room if his symptoms worsened.        Mr. Nutt was seen and examined on
Wednesday by a home health nurse who noted that he was “vomiting thin bright green
emesis.” (Joint Exhibit A, Tab 41, Med. Rec. No. 0227.) According to Tonya, the
vomiting continued off and on through Wednesday.
Case No. 2006-07449                        -3-                MAGISTRATE DECISION

       {¶ 6} On Thursday, Mr. Nutt was visited by a home health physical therapy aide.
Tonya recalled that her father was rather weak and that the physical therapist told her
that he would return the next week to begin therapy for Mr. Nutt. Tonya recalled that
the vomiting tapered off to 2-3 times per day on Thursday and Friday and that Mr. Nutt
seemed to rally a bit and enjoy the company of a few visitors.
       {¶ 7} On Friday afternoon, Mr. Nutt had another visit by a home health nurse.
She examined him and noted the history of vomiting. The nurse determined that Mr.
Nutt had bowel sounds that she characterized as “sluggish.” The nurse called in to Dr.
Michler’s office and received an order for a laxative to be administered. (Joint Exhibit A,
Tab 41, Med. Rec. No. 0256.)
       {¶ 8} According to Tonya, Mr. Nutt’s condition began to worsen later on Friday.
She recalled that her father was lying in bed curled on his side, and that he used the
bathroom several times through the night.      By early Saturday morning, Mr. Nutt was
writhing in the bed and complaining of severe abdominal pain. He requested that Tonya
call an ambulance. The paramedics arrived at approximately 9:10 a.m. and noted that
Mr. Nutt had an extremely low blood pressure and that he seemed quite ill.             The
paramedics were unable to secure intravenous access despite several attempts. They
loaded Mr. Nutt into the ambulance and drove him to defendant’s emergency room.
(Joint Exhibit A, Tab 42, Med. Rec. No. 0260-1.)        While en route Mr. Nutt suffered
cardiac and respiratory arrest. (Joint Exhibit A, Tab 42.)
       {¶ 9} Plaintiff maintains that Dr. Michler’s decision to discharge Mr. Nutt three
days after open heart surgery (OHS) fell below the standard of care. In addition, plaintiff
contends that Dr. Michler was negligent in that he failed to properly respond to the
decedent’s complaints of persistent vomiting and failed to recognize signs of an
abdominal infection. Plaintiff argues that Dr. Michler’s failure to timely diagnose an
intestinal perforation and subsequent infectious process was also a proximate cause of
Mr. Nutt’s death.
Case No. 2006-07449                               -4-                    MAGISTRATE DECISION

        {¶ 10} “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 and 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 (1976), 46 Ohio St.2d 127, 131.
        {¶ 11} “To maintain a wrongful death action on a theory of medical 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.
        {¶ 12} Plaintiff’s expert, Dr. Balke, testified that he is a professor of medicine and
physiology in the Department of Internal Medicine and the Department of Physiology at
the University of Kentucky (UK).1            In the clinical setting, he is responsible for the
patients in the cardiac intensive care unit. Dr. Balke stated that, in his opinion, Dr.
Michler did not meet the standard of care when he discharged Mr. Nutt three days after
OHS. He opined that, in his experience, the standard of care is met when such patients
are discharged no earlier than the fifth to the seventh postoperative day. Dr. Balke
noted that Mr. Nutt had some difficulty ambulating and that he had complained of
abdominal distention prior to discharge.                He admitted that, although abdominal
distention is not necessarily a contraindication to discharge, Mr. Nutt’s elevated white

        1
           Upon cross-examination, Dr. Balke acknowledged that, in addition to providing patient care, he
has several administrative and research positions at UK. Dr. Balke then clarified that while 50 percent of
his time is spent in clinical practice and instruction, only 30 percent of his time is spent in the active
clinical practice of medicine.
Case No. 2006-07449                         -5-                MAGISTRATE DECISION

blood cell count could have been an indication of an infectious process developing.
Nonetheless, upon cross-examination, Dr. Balke acknowledged that the white blood cell
count on the day of discharge was the same as the level recorded prior to the OHS.
According to Dr. Balke, the medical records also document that Mr. Nutt’s blood
pressure readings were variable and that his oxygen saturation levels were low during
the 12-hour period prior to discharge. During direct examination, however, Dr. Balke
admitted that Dr. Michler’s failure to meet the standard of care in regard to the timing of
Mr. Nutt’s discharge was not a proximate cause of his death.
       {¶ 13} Dr. Balke further opined that Dr. Michler did not meet the standard of care
in that he failed to recognize and act upon signs of escalating intestinal tract problems
exhibited by Mr. Nutt on Wednesday January 28 (the phone call to Dr. Michler’s office
from Mr. Nutt’s family) and Friday January 30 (the call from the home health nurse
regarding an order for a laxative due to sluggish bowel sounds). According to Dr. Balke,
as the intestinal tissue dies from the lack of adequate blood flow, a patient typically
exhibits symptoms of intestinal distress including nausea and vomiting.      He explained
that such ischemic damage may be present for several days prior to perforation during
which time the walls of the intestine continue to weaken. Thus, Dr. Balke opined that
had Dr. Michler identified the presence of ischemic bowel and instituted appropriate
treatment, Mr. Nutt had a better than 50 percent chance for survival.
       {¶ 14} Upon cross-examination, however, Dr. Balke conceded that it is
impossible to state with any certainty when, in the course of events, that the perforation
occurred.     Dr. Balke also acknowledged that a disruption of blood flow to an organ
during OHS is a known complication of the procedure. Dr. Balke had no criticism of the
care rendered to Mr. Nutt by any of defendant’s employees other than Dr. Michler.
       {¶ 15} Dr. Michler testified that the surgery went well and that Mr. Nutt
progressed as expected while he was inpatient. He opined that the standard of care
permits discharge of OHS patients three days after surgery provided the patient meets
certain criteria.   In reviewing the medical records, Dr. Michler determined that Mr. Nutt
Case No. 2006-07449                            -6-                  MAGISTRATE DECISION

met the criteria prior to his discharge to home. Specifically, Dr. Michler assessed Mr.
Nutt’s vital signs, his ability to ambulate, and his ability to eliminate via bowel and
bladder. He noted that Mr. Nutt’s ability to eat was limited due to the previous oral
surgeries and that he accounted for this when assessing Mr. Nutt’s intake. Although Mr.
Nutt’s oxygen saturation levels varied from 89 to 92 percent in the hours prior to
discharge, Dr. Michler noted that the levels were not unusual for a patient with a
longstanding history of cigarette smoking and that Mr. Nutt did not complain of
shortness of breath. In reviewing the laboratory values, Dr. Michler explained that Mr.
Nutt had the same white and red blood count as when he was admitted and that the
levels were normal for Mr. Nutt. He attributed the elevated coagulation levels to the
administration of Heparin, a blood-thinning medication, used during OHS. According to
Dr. Michler, Mr. Nutt’s other laboratory values were consistent with those expected of a
recovering OHS patient.
       {¶ 16} Dr. Michler testified that it was within the standard of care to advise Mr.
Nutt’s family that the nausea and vomiting could be a side effect or a reaction to the
pain medicine. Dr. Michler also testified that it was within the standard of care to order
laxatives post-operatively inasmuch as decreased intestinal activity was common after
surgery and could also be a side effect of the narcotic pain medicine. He added that Mr.
Nutt was approximately five feet, nine inches tall; that he weighed over 200 pounds; and
that his abdomen was described as large, rounded, with hypoactive or sluggish bowel
sounds.
       {¶ 17} According to the autopsy findings, Mr. Nutt suffered an ischemic injury2 to
the lower segment of his jejunum, an area located in the small intestine. The autopsy
record identified an 18-centimeter (cm) section of small bowel exhibiting signs of



       2
         Dr. Michler explained that ischemia means decreased or interrupted blood flow to an area of
otherwise healthy tissue.
Case No. 2006-07449                              -7-                   MAGISTRATE DECISION

ischemic injury and a perforation of the nearby area measuring approximately 3 cm.
(Joint Exhibit A, Tab 45, Med. Rec. No. 0284.)3
       {¶ 18} Dr. Michler maintained that discharge of a patient with OHS and AVR after
three days was within the standard of care. Dr. Michler testified that ischemic injury to
the bowel is a rare but known complication of OHS. According to Dr. Michler’s review of
the records, there was no indication of an impending catastrophic event prior to
discharge or during the initial postoperative period at home. Dr. Michler believed that
the timing of Mr. Nutt’s discharge had nothing to do with his demise. According to Dr.
Michler, a precipitous event most likely occurred late on Friday, January 30, and that
such event led to Mr. Nutt’s death. He testified that an ischemic injury is difficult to
diagnose, that it is difficult to treat, and that it can be fatal. Indeed, Dr. Michler opined
that even if Mr. Nutt had remained in the hospital the entire week, there is no guarantee
that he would have survived the complications brought on by the perforation. He also
emphasized that Mr. Nutt was seen every day after discharge by at least one health-
care provider and that the opportunity to consult with a physician was also available to
Mr. Nutt and his family.
       {¶ 19} Defendant’s expert cardiothoracic surgeon, Dr. Murphy, testified that Mr.
Nutt met the criteria for discharge three days after surgery. He noted that the medical
records document that Mr. Nutt was eating, and that he had been up to use the
bathroom, had been up to sit in a chair, and that he had ambulated with assistance for
some distance in the hallway. In addition, Dr. Murphy testified that Mr. Nutt’s vital signs
were within a normal range and that his oxygen saturation level was acceptable for a
patient with Mr. Nutt’s history. Dr. Murphy opined that there was no deviation from the
standard of care with respect to the treatment provided to Mr. Nutt either by Dr. Michler
or by any other employee of defendant. Dr. Murphy stated that the home health nurses’
notes do not suggest that Mr. Nutt exhibited signs of perforation or of acute peritonitis.


       3
        The autopsy findings also document that the heart bypass grafts and the aortic valve were intact
Case No. 2006-07449                              -8-                   MAGISTRATE DECISION

He explained that peritonitis causes extreme pain, that the abdomen becomes rigid, and
that bowel sounds are absent. In Dr. Murphy’s opinion, based in part upon his review of
the medical records, Mr. Nutt suffered an acute intestinal perforation and acute
peritonitis on Saturday.         Dr. Murphy characterized the event as an abdominal
catastrophe that resulted in Mr. Nutt’s death.
        {¶ 20} Dr. Nussbaum, defendant’s expert general surgeon, testified via videotape
deposition that he performs primarily gastrointestinal procedures. He opined that the
medical treatment provided to Mr. Nutt by Dr. Michler was within the standard of care.
Specifically, he agreed that Mr. Nutt met the criteria necessary for discharge and that
the timing of his discharge also was within the recognized standard of care for the
community. In addition, Dr. Nussbaum opined that Dr. Michler responded appropriately
to Mr. Nutt’s complaints of nausea and constipation as they were reported to him.                      Dr.
Nussbaum stated that complaints of nausea and vomiting are very common even three
to four days after surgery. According to Dr. Nussbaum, the intestinal injury suffered by
Mr. Nutt most likely occurred as a result of low or diminished blood flow to the area
during and possibly after the OHS. He opined that such event is a known but rare
complication of OHS. He also testified that bowel ischemia is difficult to diagnose; that
once the perforation occurs, a patient will experience sudden, profound abdominal pain,
and that death can occur within a very short period of time.
        {¶ 21} After careful consideration of the testimony and evidence adduced at trial,
the court finds that at all times Dr. Michler’s care and treatment of plaintiff’s decedent
did not fall below the standard of care. Specifically, the court finds that Mr. Nutt’s vital
signs, oxygen saturation levels, ability to ambulate, and his bowel and bladder functions
met the criteria for discharge on January 26, 2004, especially for a patient with Mr.
Nutt’s medical and postsurgical conditions. The court further finds that the timing of Mr.
Nutt’s discharge was not proximately related to the ischemic injury and subsequent

without evidence of leakage at the anastomoses sites. (Joint Exhibit A, Tab 46, Med. Rec. No. 0284.)
Case No. 2006-07449                         -9-                 MAGISTRATE DECISION

perforation that led to Mr. Nutt’s demise. In addition, the court finds that the testimony
of Dr. Murphy and Dr. Nussbaum was more persuasive than the opinions offered by Dr.
Balke, especially in reference to assessing and responding to Mr. Nutt’s complaints of
postoperative nausea, vomiting and constipation.        As such, the court finds that the
manner of Dr. Michler’s care and treatment of Mr. Nutt from January 26 through January
31, 2004, did not fall below the standard of care.
       {¶ 22} Based upon the totality of the evidence, the court finds that plaintiff has
failed to prove his claim by a preponderance of the evidence.             Accordingly, it is
recommended that judgment be rendered in favor of defendant.
       A party may file written objections to the magistrate’s decision within 14 days of
the filing of the decision, whether or not the court has adopted the decision during that
14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections,
any other party may also file objections not later than ten days after the first objections
are filed. A party shall not assign as error on appeal the court’s adoption of any factual
finding or legal
conclusion, whether or not specifically designated as a finding of fact or conclusion of
law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that
factual finding or legal conclusion within 14 days of the filing of the decision, as required
by Civ.R. 53(D)(3)(b).



                                          _____________________________________
                                          LEWIS F. PETTIGREW
                                          Magistrate

cc:
Case No. 2006-07449                  - 10 -            MAGISTRATE DECISION


Leigh-Ann M. Sims                       Timothy T. Tullis
6734 Royal Plume Drive                  Traci A. McGuire
Dublin, Ohio 43016                      Special Counsel to Attorney General
                                        Capitol Square Office Building
                                        65 East State Street, Suite 1800
                                        Columbus, Ohio 43215-4294


SJM/cmd
Filed November 23, 2009
To S.C. reporter December 29, 2009
