[Cite as Clements v. Lima Mem. Hosp., 2010-Ohio-602.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                              ALLEN COUNTY




MATTHEW JAMES CLEMENTS, ET AL.,

        PLAINTIFFS-APPELLANTS,
        CROSS-APPELLEES,                                    CASE NO. 1-09-24

        v.

LIMA MEMORIAL HOSPITAL, ET AL.,
                                                            OPINION
        DEFENDANTS-APPELLEES,
        CROSS-APPELLANTS.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV 2006-0188

                                    Judgment Affirmed

                         Date of Decision:       February 22, 2010




APPEARANCES:

        Paul W. Flowers for Appellants/Cross-Appellees

        Christina J. Marshall for Appellees/Cross-Appellants

        Jeffrey M. Goldberg for Appellants/Cross-Appellees
Case No. 1-09-24


PRESTON, P.J.

          {¶1} Plaintiffs-appellants/cross-appellees, Matthew Clements and Angela

Clements, individually and as parents and natural guardians for their son, Owen

Clements (hereinafter collectively “Clements”), appeal the judgment of the Allen

County Court of Common Pleas entering a judgment in favor of defendants-

appellees/cross-appellants, Lima Memorial Hospital (hereinafter “LMH”), Dottie

Baker, R.N. (hereinafter “Nurse Baker”), Deborah Bollenbacher, R.N. (hereinafter

“Nurse Bollenbacher”), and Nancy Kathleen Hunnaman, R.N. (hereinafter “Nurse

Hunnaman”) (hereinafter collectively “defendants”), following a jury verdict in

favor of defendants-appellees/cross-appellants. For the reasons that follow, we

affirm.

          {¶2} The facts relevant to this appeal are as follows: Owen Clements was

born on January 19, 2004 at approximately 1:43 a.m. at LMH to first-time parents,

Angela and Matthew Clements. Owen was a term baby, weighed 3129 grams, and

no complications were noted with respect to the delivery.

          {¶3} Around 2:45 p.m. on January 19th, Nurse Hunnaman began her 3:00

p.m. to 3:00 a.m. shift in the obstetrics department at LMH. She examined Owen

around 3:30 p.m. and evaluated his fontanels (soft spot), skin color (noted “pink”),

heart, lung sounds, temperature, abdomen, and bowel sounds, all of which were

noted to be normal. She documented that Owen had breast fed “fair” at 6:00 p.m.,



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breast fed “well” at 10:00 p.m., and had voided with meconium stools at those

times as well. Around 6:30 p.m. she witnessed Dr. John S. Liggett’s newborn

physical of Owen. During Dr. Liggett’s examination of Owen, he noted Owen had

normal proportions, color, head, chest and neck, abdomen, musculoskeletal and

neurological systems, and skin; however, next to the word “jaundice,”1 Dr. Liggett

placed a question mark.                 As a result of the questioned jaundice, Dr. Liggett

ordered a bilirubin level, Rh typing, and a Coombs test. As discussed below, the

Rh typing and the Coombs test results were all negative, although the bilirubin

test, which was conducted around 4:00 a.m. on January 20, 2004, showed a level

of 7.7.

           {¶4} In addition, during the examination, Owen was noted to feel cool to

touch and a subsequent temperature reading revealed his temperature at 97.6° F.

As a result, Nurse Hunnaman wrapped Owen in blankets, placed him under a

warmer, and instructed his parents to keep Owen wrapped in the blankets with his

hat on. By midnight, Owen’s temperature had increased to 98° F. Also, around

midnight, Nurse Hunnaman weighed Owen and noted that his weight was 2960

grams, 5.2% less than his original birth weight.

           {¶5} On January 20th around 8:00 a.m., Dr. Vincente W. Romero

examined Owen, and after reviewing Owen’s medical chart and performing a



1
    Jaundice refers to a yellowish coloring of the skin, and will be discussed in further detail below.


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physical examination, he assessed Owen to be a healthy newborn. Dr. Romero did

notice a mild recession of Owen’s lower chin and described his ears as flat

pavilion, so he ordered chromosomal studies and set up an appointment for the

parents to follow-up with a geneticist.

       {¶6} Next, Owen underwent a circumcision around 2:20 p.m.          Nurse

Baker assisted Dr. Medina with Owen’s circumcision. She transported Owen to

and from the procedure and gave Owen a bottle to feed.         Owen was then

documented to have breastfed “fair” at 3:00 p.m.

       {¶7} Nurse Bollenbacher reported to duty on January 20th for her 3:00

p.m. to 3:00 a.m. shift, at approximately 2:45 p.m. Around that time, Angela was

discharged from LMH. Around 4:00 p.m., Nurse Bollenbacher noted that Owen

had breastfed. Although there was no written order in Owen’s medical records nor

were there any indications that an oral discharge had been authorized over the

phone by a physician, Nurse Bollenbacher discharged Owen from LMH around

7:00 p.m. on January 20, 2004.

       {¶8} The next day on January 21, 2004, Angela called LMH and indicated

that she was having trouble feeding Owen and that his lips and hands were cold

and changing color. She was advised by LMH to take Owen immediately to an

emergency room. Angela and Matthew took Owen to Joint Township Hospital.

When they arrived at the hospital, Owen was non-responsive and began having



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seizures. Lab results indicated that Owen’s bilirubin level was at 15.6, and that his

glucose level had dropped down between one and zero. Attempts were made by

the doctors at the hospital to increase Owen’s glucose level. They eventually

stabilized Owen, and he was then transported to Dayton Children’s Hospital.

       {¶9} After approximately seven to eight days at Dayton Children’s

Hospital, Owen’s glucose level was eventually stabilized with medication. It was

determined that Owen had suffered a severe episode of hypoglycemia, and as a

result, had sustained profound, irreversible brain damage.

       {¶10} On February 13, 2006, the Clements filed a complaint for medical

malpractice against Drs. Liggett and Romero, Nurses Hunnaman, Baker, and

Bollenbacher, and LMH by and through its three nurses. (Doc. No. 1). In their

complaint, the Clements alleged that Owen should not have been discharged from

the hospital after his birth, and that as a result of the early discharge, Owen

suffered from severe hypoglycemia and sustained profound brain damage.

Answers were filed denying liability. (Doc. No. 1). Over the next three years, the

parties conducted extensive discovery. After a denial of the Clements’ partial

motion for summary judgment, and the dismissal of Dr. Liggett from the action,

the case proceeded to jury trial on February 2, 2009 against LMH, Dr. Romero,

and the three nurses. Over the next several days, the parties presented their

respective cases. One of the expert witnesses the Clements presented was Dr.



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Tracey Trotter who testified that, after reviewing the medical records and relevant

deposition, he believed that had Owen been kept at LMH longer, his injury could

have been avoided. Overall, Dr. Trotter testified that there were indications in the

medical records that Owen should have not have been discharged from LMH. In

addition to Dr. Trotter’s testimony, the Clements called Nurse Camille DiCostanzo

to testify about the nursing standard of care. She testified that after looking at the

medical records and depositions, there were several concerns she had regarding

Owen’s health, and that it had been a deviation from the nursing standard of care

to have discharged Owen early from LMH.

       {¶11} Defendants only called Dr. James Greenberg to testify for their case.

Dr. Greenberg stated that Owen’s hypoglycemia was not related to the levels of

bilirubin nor was it related to any alleged lack of nutrition from the breast

feedings.   He testified that the typical symptoms of hypoglycemia include

lethargy, poor feedings, jittery movements, low tone, limpness, and seizures, none

of which Owen had exhibited while he had been at LMH. Finally, Dr. Greenberg

said that even if Owen had not been discharged from LMH and had been treated

for hypoglycemia, he did not believe that it would have prevented Owen’s injury

given the difficulty the other hospitals had in maintaining Owen’s glucose level.

       {¶12} After the defendants rested, Dr. Romero was dismissed from the

case pursuant to a settlement agreement with the Clements. The case against



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LMH and the nurses was then submitted to the jury on February 17, 2009, after

which time, the jury returned general verdicts for the defendants. Overall, the jury

found in favor of Nurse Hunnaman, Nurse Baker, and Nurse Bollenbacher, and

accordingly found in favor of LMH by and through its nurses.                 In the

interrogatories, the jury specified the following:

       With respect to Nurse Hunnaman, the jury found that her
       conduct had not fallen below the accepted standards of care.

       With respect to Nurse Baker, the jury found that there was a
       preponderance of the evidence that Nurse Baker’s conduct had
       fallen below the accepted standards of care, specifically when
       she “failed to make timely entries in the narrative nursing notes
       on the newborn flow sheet in regard to Owen’s care on 1/20/04
       between the hours of 14:00 to 15:30.” Nevertheless, the jury
       found that her failure to make timely entries was not the
       proximate cause of Owen’s injuries.

       With respect to Nurse Bollenbacher, the jury found that there
       was a preponderance of the evidence that her conduct had fallen
       below the accepted standards of care, specifically when she
       “didn’t ensure adequate documentation for Owen’s
       release/discharge from Lima Memorial Hospital, [and] didn’t
       adequately complete page 2 of 4 on the newborn flow sheet
       documenting examination @ 16 hr on 1/20/04.” Nevertheless,
       the jury found that her failure to adequately complete
       documentation was not the proximate cause of Owen’s injury.

       Finally, with respect to Dr. Romero, even though he had been
       dismissed from the case, the jury found that his conduct had not
       fallen below the accepted standards of care.

       {¶13} The Clements now appeal and raise four assignments of error. In

addition, the defendants raise one cross-assignment of error for our review. For



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ease of our discussion, we elect to address the Clements’ assignments of error out

of the order that they were presented.

              PLAINTIFFS’ ASSIGNMENT OF ERROR NO. IV

       GIVEN THE NURSES’ ADMISSIONS THAT THE
       STANDARD OF CARE HAD BEEN VIOLATED IN
       MULTIPLE INSTANCES, AND THE COMPLETE ABSENCE
       OF ANY EXPERT TESTIMONY SUGGESTING THAT THEY
       HAD ACTED APPROPRIATELY, THE JURY’S VERDICT
       WAS CONTRARY TO THE MANIFEST WEIGHT OF THE
       EVIDENCE.

       {¶14} In their fourth assignment of error, the Clements argue that the jury’s

verdict was against the manifest weight of the evidence given the nurses’

admissions of negligence and the absence of any defense nursing expert. In

response, the defendants claim that despite any admissions made by the nurses, the

Clements failed to establish a causal link between the care and treatment rendered

at LMH and Owen’s hypoglycemia.

       {¶15} In determining whether a judgment is against the manifest weight of

the evidence, the trier of fact is in a better position to observe the demeanor of the

witnesses, examine the evidence, and weigh the credibility of the testimony and

evidence. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461

N.E.2d 1273. Thus, we cannot substitute our judgment for that of the trier of fact

when there exists competent, credible evidence going to all the essential elements




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of a case. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 280,

376 N.E.2d 578.

      {¶16} In order to establish a medical malpractice claim, the plaintiffs must

prove by a preponderance of the evidence that the injury was proximately caused

by medical care or treatment that fell below the recognized standards of medical

care in the community. Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 131-32, 346

N.E.2d 673. “The failure to prove that the recognized standards of the medical

community were not met or to prove that the failure to meet those minimum

standards proximately caused the injury is fatal to a claim of medical malpractice.”

Kester v. Brakel, 10th Dist. No. 06AP-253, 2007-Ohio-495, ¶26. The general rule

is that because the standards of the medical community are not common

knowledge, the plaintiffs must prove causation through expert testimony. Roberts

v. Ohio Permanente Medical Group, Inc. (1996), 76 Ohio St.3d 483, 668 N.E.2d

480. The same is true with respect to nurses and negligence actions, “expert

testimony must be presented to establish the prevailing standard of care, a breach

of that standard, and that the nurse’s negligence, if any, was the proximate cause

of the patient’s injury.” Ramage v. Central Ohio Emergency Serv., Inc. (1992), 64

Ohio St.3d 97, 592 N.E.2d 828, paragraph one of the syllabus.

      {¶17} With respect to LMH’s liability in this case, under the doctrine of

respondeat superior, a hospital is liable for the negligent acts of its employees.



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Klema v. St. Elizabeth’s Hosp. of Youngstown (1960), 170 Ohio St. 519, 527, 166

N.E.2d 765. Thus, if LMH’s nurses were negligent in this particular case, under

the doctrine of respondeat superior, LMH would also be negligent. See. id.

      {¶18} After reviewing all of the evidence in the record, with respect to the

issues highlighted by the parties concerning the liability of LMH and its nurses,

the jurors heard and weighed the testimony from Nurse Hunnaman, Nurse Baker,

and Nurse Bollenbacher. In addition, the jurors heard testimony from Dr. Cheryl

Kuck, along with the testimony of Dr. Romero, the Clements’ experts, Nurse

Camille DiCostanzo and Dr. Tracey Trotter, and the defendants’ expert, Dr. James

Greenberg.

      {¶19} Nurse Hunnaman testified that she had reported for her 3:00 p.m. to

3:00 a.m. shift around 2:45 p.m. on January 19, 2004. (Vol. III Tr. at 540-41).

Nurse Hunnaman stated that typically nurses are taught to only write narrative

notes in a patient’s chart if they find something in the patient that is out of the

ordinary. (Id. at 566). She testified that she was familiar with the concept of

jaundice, which is caused by the by-product of the breakdown of red blood cells,

known as bilirubin. (Id. at 536). Bilirubin is usually eliminated in a person’s body

through excretion, but when the bilirubin accumulates, it causes the skin to turn a

yellowish color (jaundice).       (Id. at 536-38).      While Nurse Hunnaman

acknowledged that jaundice (or the accumulation of bilirubin) can be caused by



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inadequate nutrition, she stated that it could be caused by other things, such as

blood incompatibility, a malfunctioning liver, and an infection. (Id. at 573-74).

Moreover, she testified that a good portion of babies get jaundice due to immature

livers at birth, and that most of the time the jaundice will resolve on its own.

Overall, she said that just because a baby is jaundice does not mean that there is

something wrong with the baby’s health. (Id. at 580).

      {¶20} During her shift, Nurse Hunnaman said she evaluated Owen’s vital

signs, skin color, feeding, and voiding patterns, which were all normal. (Vol. III

Tr. at 529, 532, 542-44, 546-52, 594, 606, 792). She stated that she had been with

Dr. Liggett during his examination of Owen, and that afterwards Owen was placed

in a warmer because he had felt cool to touch. (Id. at 552-53). After a few hours

in the warmer, Owen’s temperature stabilized.           (Id.).   In addition, Nurse

Hunnaman said that during his examination of Owen, Dr. Liggett placed a

question mark next to the word “jaundice” and ordered additional testing, which

Nurse Hunnaman ensured were entered correctly into the system. (Id. at 556-58).

      {¶21} Nurse Hunnaman acknowledged that she had weighed Owen later in

the evening and that he had dropped from 3120 grams to 2960 grams, which she

acknowledged was a 5.2% loss of weight. (Id. at 567-68). She stated that she had

not recorded the percentage of weight loss in the records nor had she informed

anyone specifically about the weight loss, because it was normal for a newborn to



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lose 5-10% over the course of their hospitalization. (Id. at 568). Additionally, she

acknowledged that by the time her shift had ended, Owen had not voided for five

hours, although she stated that this occurrence was also not uncommon. (Id. at

569-70). She then went through Owen’s breastfeedings prior to Dr. Romero’s

examination, and said that in her nursing opinion everything looked normal: Owen

had had about ten feedings, and most of them were labeled “well,” meaning that

he had stayed on the breast 15-plus minutes. (Id. at 590-92). Nurse Hunnaman

concluded by stating that at no time during her shift did she observe Owen to have

signs of jaundice, lethargy, poor feeding, or excessive weight loss. (Id. at 599-

601).

        {¶22} Next, Dr. Romero testified. He again explained that jaundice is a

yellowing or yellowish tinge to the skin, which is caused by excess bilirubin (a

normal occurring by-product in humans when the red blood cells breakdown).

(Vol. III, Tr. at 625, 652). One cause of elevated bilirubin can be a malfunctioning

liver that is not adequately processing and getting rid of the bilirubin. (Id. at 654).

Another cause of elevated bilirubin in newborns occurs when the baby is not

getting normal hydration and nutrition, and thus, cannot excrete the bilirubin from

its body. (Id. at 654).     Dr. Romero acknowledged that an elevated level of

bilirubin, along with jaundice, could be a sign that the baby was not getting

adequate nutrition, which could ultimately cause hypoglycemia, or low blood



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sugar. (Id. at 657). Typically, when a bilirubin level is around 5 to 7, he stated

that one can usually see jaundice on a person’s skin, first on their face or head,

then as the level increases, jaundice will spread visibly throughout the body. (Id.

at 628). Even though one would expect to see jaundice on a person’s skin at a

level of 7, measuring its visibility is very subjective and visibility varies from

person to person. (Id. at 629). Nevertheless, Dr. Romero said that at level 9 some

jaundice would be visible. (Id.). Despite the levels of bilirubin, Dr. Romero

reiterated that determining whether a baby is visibly jaundice is a subjective

determination, and it is something that all doctors and nurses are trained to

automatically look for when looking at a baby. (Id. at 719-721).

      {¶23} Additionally, Dr. Romero acknowledged that he was familiar with

the Bhutani curve, which is used to identify risks and significance of different

bilirubin levels in newborns. (Id. at 637). He stated that according to the Bhutani

chart, a level of 7.7 would place a newborn in the high intermediate risk zone.

(Id.). Moreover, he acknowledged that if Owen’s level had been around 15 (high

risk zone) at Joint Township Hospital, then if you were to follow the increasing

path of the Bhutani curve, at the time Owen had been discharged at LMH, his

bilirubin level may have been somewhere between 11 and 12.                 (Id. at

686)(emphasis added). However, Dr. Romero later testified that the bilirubin level

does not necessarily move at a constant rate. Moreover, he said that the treatment



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for increased bilirubin is phototherapy, which was never given to Owen even

when he was at Joint Township Hospital and his level was at 15.6. (Id. at 768-69).

Furthermore, Dr. Romero stated that the Bhutani curve was not being used at the

time Owen was at LMH; rather, the American Academy of Pediatrics’ chart which

was being used at that time only indicated that a newborn with a level of 7.7

should be “observed and followed.” (Id. at 770-74).

        {¶24} With respect to the treatment of Owen, Dr. Romero testified that the

three additional tests ordered by Dr. Liggett were common tests to order when a

physician was concerned with jaundice, and that two of the tests (the Coombs and

Rh tests) had come back negative.2 (Id. at 648). However, the bilirubin test

indicated that the bilirubin was at a level around 7. Dr. Romero acknowledged

that you could not know whether the bilirubin level would go up, stay the same, or

go down when only one bilirubin reading was done. (Id. at 650). And he also

acknowledged that he would have known the results of the bilirubin test when he

had performed his physical examination of Owen the next morning. (Id. at 758-




2
  The Coombs test checks for whether the newborn’s blood is incompatible with the mother’s blood, which
can be a cause of elevated bilirubin. (Vol. III Tr. at 562). In addition, the Rh test also tests the
compatibility of the newborn’s blood, but it looks to see whether the mother’s antibodies are opposite of
the newborn’s antibodies and are therefore attacking the newborn’s blood cells, causing an increase in
bilirubin. (Id. at 563-64).


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59). However, he said that even though he had failed to note whether Owen was

jaundice or not, Dr. Romero stated that he only writes in the positives, thus if there

was no note on whether Owen was jaundice, then there was likely no jaundice to

report.     (Id.).   Even at trial, after looking at his notes on Owen’s physical

examination, Dr. Romero said that there was nothing that gave him concerns as it

related to the bilirubin level. (Id. at 764). Although Dr. Romero said that he

wished he would have had two numbers on the bilirubin level, he stated that the

bilirubin level in and of itself would not have been a reason to have kept Owen

more than seventy-two hours. (Id. at 764).

          {¶25} With respect to Dr. Romero’s other findings during Owen’s

examination, Dr. Romero testified that he had noted that Owen had a mild

recession of his lower chin and that his ears were pavilion, and as a result of these

findings, he ordered a chromosome study and made an appointment for the

Clements to see a geneticist. (Id. at 661, 665, 676). All of the chromosomal

studies came back normal and indicated that there were no problems with Owen’s

chromosomes. (Id. at 676-77).

          {¶26} Dr. Romero went on to explain that when hypoglycemia is an issue,

a baby typically presents symptoms of jitteriness, lethargy, persistent low body

temperature, cyanosis, poor tone, seizures, apnea, and poor feeding. However, in

Owen’s case, there was no evidence by way of symptoms or signs that he had



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hypoglycemia. (Id. at 795-96). Dr. Romero said that he did not note jaundice,

lethargy, or any other complications. (Id. at 664-66, 710-11, 722-33, 746). He did

not note that Owen had excessive weight loss, difficulty breathing, or temperature

instability. (Id. at 777-78, 795-96). And all of Owen’s vital signs, including his

temperature were normal, even considering Owen had to be placed in a warmer for

a brief period of time. (Id. at 784-89).

       {¶27} As far as mothers who are new to breastfeeding their baby, Dr.

Romero stated that it is not uncommon for the baby to breast feed “well” several

times and then to breast feed “fair” or to have difficulty latching on to the breast.

(Id. at 741-42). Here, despite the few expected problems, in Dr. Romero’s opinion

Owen had been breastfeeding well, had a normal suck, cry and swallow, and had

no signs of distress. (Id. at 757-58, 790-92). Moreover, Owen had reasonable

amounts of voids (wet diapers), and a reasonable amount of stool passages, which

were good signs that everything was working properly. (Id. at 794-95).

       {¶28} Finally, Dr. Romero testified that he had never issued a discharge

order nor did he ever give a verbal order to discharge Owen. (Id. at 674). And

under the circumstances, he said that he may have asked for another bilirubin test

to be done, and if the second bilirubin test would have shown a level between 11

and 12, then Owen would have likely not been discharged. However, he reiterated




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that his determination would have depended on the whole picture, all of the

circumstances with the baby, not just one isolated factor. (Id. at 800, 814, 831).

       {¶29} Next, Nurse Baker testified that she had reported for her 3:00 a.m. to

3:00 p.m. shift at LMH on January 20, 2004, and had taken care of Owen’s

circumcision at 2:15 p.m. (Vol. IV Tr. at 846-47). She said that after Owen’s

circumcision she assisted in helping Owen breastfeed, and that although she had

indicated in his chart that he had breastfed, it was not her handwriting indicating

that he had breastfed “fair.” (Id. at 849). In addition, she acknowledged that

according to Owen’s charts she would have known that Owen had not voided for

almost 14 hours, which could be a sign that he was not receiving adequate

nourishment. (Tr. at 850-51). Moreover, Nurse Baker acknowledged that part of

a nurse’s duty was to keep accurate medical records and to make entries so that the

nurses coming in later could be adequately informed. (Id. at 841, 845). However,

except for the note that she had added two days later on January 22nd, she said

there were no progress notes (in particular any note indicating Owen’s skin color)

evaluating Owen from 9:00 p.m. on January 19, 2004, for 22 hours until 7:00 p.m.

on January 20, 2004 (which noted that Owen was discharged). (Id. at 855-57).

Finally, Nurse Baker concluded by testifying to the following:

       Q. Well, isn’t it correct that the reasonably accepted standards
       indicate that a nurse should both note and document skin color
       at discharge?



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       A. If we get assessing and we get pulled away, don’t get
       documentation done and don’t remember, we’re human. We
       don’t go back to document sometimes. That happens.
       Q. Am I correct, that it’s a deviation from reasonable care not
       to note and document?
       A. Yes.
       Q. And would you agree that if a nurse didn’t note and
       document her findings, she deviated from reasonable care;
       correct?
       A. Yes.
       ***
       Q. So you agree that –
       A. Yes.
       Q. – that failing to note and document –
       A. Yes.
       Q. – skin color is a deviation –
       A. Yes.
       Q. – for the nurse that discharged him; correct?
       A. Yes.
       Q. And failing to identify for a doctor or tell them when a baby
       is not voiding correctly is also a deviation; correct?
       A. Yes.
       Q. And you didn’t notify a doctor when you could have seen
       that blatantly apparent on the chart; correct?
       A. Yes.
       Q. So you deviated by not notifying the doctor, correct, if you
       had looked at the chart?
       A. Yes.

(Vol. IV, Tr. at 860-63).

       {¶30} Nurse Bollenbacher testified after Nurse Baker. She said that she

had reported to LMH on January 20, 2004 for her 3:00 p.m. to 3:00 a.m. shift, at

approximately 2:45 p.m. (Vol. IV Tr. at 872). She stated that there were many

things that a nurse can do without having a doctor’s order, such as ordering a

bilirubin test or other similar tests.   (Vol. IV, Tr. at 867).   However, Nurse


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Bollenbacher acknowledged that nurses cannot discharge a baby without a

physician’s order. (Id.). With respect to discharging Owen, Nurse Bollenbacher

testified as follows:

       Q. One of the things you cannot do without an order is
       discharge a baby?
       A. Correct.
       Q. In this case, there is no record of an order allowing you to
       discharge this baby; correct?
       A. I would never discharge a baby without an order.
       Q. I didn’t ask you that, Ma’am.
       A. There is no order in the record.
       ***
       Q. There can be orders that are given by the a [sic] doctor
       verbally where you as a nurse write it in and then he signs it
       later; correct?
       A. Correct.
       Q. And, in fact, the reasonably accepted standard of care
       requires if you’re talking to a doctor over the phone, which
       happens all the time in your practice - -
       A. Yes.
       Q. Correct?
       A. Uh-huh.
       Q. Requires you to write it in the chart; correct?
       A. Uh-huh.
       Q. And you can’t act on it until you wrote it in the chart;
       correct?
       A. Correct.

(Vol. IV, Tr. at 867-70). Nurse Bollenbacher testified that she never made the

decision to send Owen home. (Id. at 896). Nevertheless, there was no indication

in the chart that she ever tried to call a physician to obtain a discharge order for

Owen, and as a result, Nurse Bollenbacher admitted that she had not complied

with the reasonably accepted standards of care when she had discharged Owen.


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(Id. at 899-900). Owen was discharged at 41 hours of age, seven hours before the

48-hour period of time required for a typical discharge. (Vol. III, Tr. at 683-85).

       {¶31} Nurse Bollenbacher also stated that she would have known that

Owen’s bilirubin level was 7.7 from the test results in his chart at the time she

took care of Owen, and she admitted that no follow-up test was ever done. (Id. at

890). Moreover, she stated that nurses are normally supposed to assess a baby’s

skin color every eight hours, but that in Owen’s case no one had noted his skin

color any time after midnight on January 20th. (Id. at 874, 890). In addition, she

stated that she had not noted or evaluated Owen’s vitals at the time of his

discharge, although she stated that it was not routine or needed; and that she also

would have known by Owen’s charts that he had lost 5.2% of his body weight

since birth. (Id. at 871). Despite the fact that there were none of the above

notations in Owen’s record, Nurse Bollenbacher later testified that while not

everything gets marked down, that does not mean that the baby was not evaluated.

(Id. at 903-04). Moreover, she emphasized that while documentation is important,

patient care always comes first. (Id.). In response to whether nurses in reality

mark down everything, Nurse Bollenbacher stated as follows:

       [W]e are in the rooms checking on the babies all the time. I
       mean, every time we walk in a room, we’re looking at the baby.
       Assisting with breastfeeding, doing teaching, taking care of
       mother, even if we’re called in there for something, mom wants
       pain medication, we’re always looking at the baby. We’re
       trained, it’s just an automatic thing.


                                        -20-
Case No. 1-09-24


       Even in the mall, I see a baby, I can’t help but look at him and
       like make sure everything looks normal on him, including color.
       I mean, it’s just an automatic thing after all these years. * * *
       It’s an automatic thing for me to always check babies.

(Id. at 903).

       {¶32} Dr. Cheryl R. Kuck, a general pediatrician, testified that she was

working at Joint Township Hospital on January 21, 2004, when Owen was brought

to the hospital’s emergency room. (Id. at 968-970). She said that when she first

saw Owen, he was just laying there, he was cold, was not responding well, and he

was jaundiced: all indications that he was a very sick child. (Id. at 972). After

they were able to get blood drawn, Owen started having seizures. (Id. at 973-74).

The tests revealed that Owen’s glucose level was at a life-threatening level

(between zero and one), so Dr. Kuck put a tube down into his stomach to try to

increase his blood sugar. (Id. at 973-76). Dr. Kuck explained that the brain

requires glucose, which it uses as its source of energy, so low levels of glucose can

cause injury to the brain. (Id. at 977). After Dr. Kuck and the Joint Township

Hospital staff were able to stabilize Owen, they transferred him over to Dayton

Children’s Hospital. (Id. at 986-87). Dr. Kuck stated that as a result of low blood

sugar, or hypoglycemia, Owen sustained severe permanent brain damage. (Id. at

990). She also testified that she is Owen’s current physician and explained his

present medical condition and how it has impacted his physical and mental

capabilities. (Id. at 990-1000). Overall, she concluded that Owen’s brain injury


                                        -21-
Case No. 1-09-24


and disabilities were permanent and were the result of the low blood sugar he had

exhibited at Joint Township Hospital. (Id. at 999-1000).

         {¶33} Nurse Camille DiCostanzo testified as the Clements’ nursing expert.

She stated that typically newborns are kept in a hospital for 48-hours, and anything

less than 48-hours would be considered an early discharge, which should be done

only in compliance with the requisite criteria and conditions. (Vol. V, Tr. at 1149-

151). After reviewing the medical records and depositions in this case, Nurse

DiCostanzo opined that it was a deviation from the reasonable standard of care for

LMH, through its employees, to have allowed Owen to be discharged early. (Id. at

1152).     She stated that she found certain things in Owen’s medical record

troubling that would not have warranted an early discharge. (Id. at 1194). In

particular, even though she indicated that Dr. Romero and Dr. Liggett did not note

that there were any concerns regarding a 5% weight loss, she believed that Owen’s

5% weight loss was significant and alone should have kept the baby in the

hospital. (Id. at 1194, 1274). In addition, she believed that the medical record

demonstrated     that   there   were     problems   with   the   breastfeeding   and

voiding/stooling, along with the fact that there was a noted question of jaundice

and a recessed chin. (Id. at 1194-95).

         {¶34} On cross-examination, Nurse DiCostanzo clarified that her concern

with respect to Owen’s breastfeeding was with the latching at the time of the



                                          -22-
Case No. 1-09-24


feeding, not the frequency of the breastfeedings.        (Id. at 1249).    But, she

acknowledged that next to most of the breastfeed notations there was an indication

that it was “well” or “fair,” and most of them were “breastfed well,” signifying

that there was little to no assistance needed. (Id. at 1252-58). Furthermore, there

were additional notations made by the nurses indicating whether there was a good

sucking, audible swallowing, difficulty in latching, and sleepiness. (Id. at 1258-

70). And Nurse DiCostanzo agreed that it is not unusual for there to be problems

with breastfeeding, especially with first-time mothers. (Id. at 1243).

         {¶35} Nurse    DiCostanzo     also    acknowledged       that    inadequate

documentation happens more often than not in the nursing profession. (Id. at

1241).    The overall question then becomes what is the impact on care and

subsequent injury of the inadequate documentation, because not all inadequate

documentation impacts patient care. (Id. at 1241-42). Nurse DiCostanzo testified

that if someone were to follow the guidelines set forth in the American Academy

of Pediatrics (hereinafter “AAP”) that would be reasonable and within the

standard of care. (Id. at 1246). And as it related to voiding/stooling and early

discharge, according to the criteria set by the AAP a newborn only needs to have

urinated and passed at least one stool, which Owen had met. (Id. at 1273).

Despite these facts, Nurse DiCostanzo still maintained her opinion that based on




                                        -23-
Case No. 1-09-24


the concerns she had noted previously, Owen should not have been discharged

early.

         {¶36} The final two relevant witnesses presented were the expert doctors

called by the Clements and the defendants: Dr. Tracey Trotter and Dr. James

Greenberg, respectively. Dr. Tracey Trotter testified that discharging Owen had

deviated from the reasonable standard of care, and had Owen been kept longer, his

brain injury could have been avoided. (Vol. VI Tr. at 1395). Dr. Trotter stated

that there were several external factors that he believed indicated that glucose may

have been a problem: Owen’s elevated level of bilirubin, significant weight loss,

lack of feeding, and poor output. (Id. at 1434-43). He said that although no

glucose check was ever performed in this case, these were indications that a

glucose test should have been performed. (Id. at 1434-43). Nevertheless, in Dr.

Trotter’s opinion, since it was clear to him that Owen had not been eating and

voiding properly, a glucose test would have likely revealed a borderline glucose

level, which he said would have gotten the attention of medical professionals. (Id.

at 1435-36). Again, assuming that this level would have been noticed, Dr. Trotter

testified that then the hospital would have attempted to keep Owen’s glucose level

within a reasonable range, and could have prevented it from dropping down to

zero, thus ultimately preventing Owen’s injury. (Id. at 1437-40). He stated that he

believed that Owen’s weight loss, the increased level of bilirubin, the recessed



                                       -24-
Case No. 1-09-24


chin, lack of voidings/stoolings were all consistent with inadequate nutrition, and

that one way to get rid of the bilirubin is having good nutrition. (Id. at 1420,

1445). Moreover, he testified that by using the Bhutani curve as a predictor of the

rise of bilirubin, when Owen was discharged from LMH his bilirubin level would

have been somewhere between 11 and 12. (Id. at 1516).

       {¶37} On cross-examination, Dr. Trotter acknowledged that Owen’s injury

was caused by transient hypoglycemia, and no one was able to determine why

Owen became hypoglycemic. (Id. at 1473). Similarly, Dr. Trotter said that quite

often the cause of an infant’s transient hypoglycemic episode is never determined,

and not all babies will show symptoms of hypoglycemia before their symptoms

become severe. (Id. at 1438, 1514). Nevertheless, Dr. Trotter concluded that,

regardless of what the cause was of Owen’s transient hypoglycemia, in order to

have prevented the hypoglycemia from causing brain injuries, there should have

been follow-ups on the bilirubin, lack of voiding, and weight loss. (Id. at 1515).

       {¶38} Finally, Dr. James Greenberg testified as the defendants’ expert

witness. He stated that although the underlining cause of Owen’s hypoglycemia

was never determined, the hypoglycemia was not related to the levels of bilirubin

nor was the hypoglycemia related to the alleged lack of adequate nutrition. (Vol.

XI Tr. at 2031-32).     Dr. Greenberg said he had no concerns with Owen’s

breastfeeding, found the 5% weight loss to be within a normal range, and said that



                                        -25-
Case No. 1-09-24


he did not have any concerns with Owen’s voiding and stooling. (Id. at 2036-47,

2059-71, 2075-77). In addition, with respect to bilirubin, high levels of bilirubin

are treated with a treatment called phototherapy, which is a light used to turn the

bilirubin into a chemical that can be excreted by the baby. (Id. at 2050). He stated

that the Bhutani chart has now been officially adopted by the APP (although he

said that the APP’s original chart used by the defendants was consistent with the

Bhutani chart), and it is used to determine the risk that a baby will require

phototherapy treatment for jaundice. (Id. at 2054-58, 2121-26). However, Dr.

Greenberg said that the Bhutani chart was not designed to be used the way the

Clements were using the chart, which was as a way to predict the level the

bilirubin in the future. (Id. at 2058, 2123-26). Rather, Dr. Greenberg stated that

the purpose of the Bhuntani chart was to only predict the need for treatment

(phototherapy, or in the worse cases, a transfusion). With respect to Owen and his

7.7 level of bilirubin, Dr. Greenberg stated that although he would have been

concerned with whether Owen needed phototherapy, he would have had no

concerns as far as discharging him with a level of 7.7. (Id. at 2058-59).

       {¶39} Again, Dr. Greenberg reiterated that based on Owen’s medical

records, he had no concerns regarding Owen’s intake: the breastfeedings were

normal, the voiding and stoolings were normal, and the 5% weight loss was within

the normal range of expected weight loss in newborns. (Id. at 2059-81). With



                                        -26-
Case No. 1-09-24


respect to the symptoms of hypoglycemia, Dr. Greenberg stated that these

included lethargy, poor feeding, jittery movements, low tone, limpness,

hypothermia, and seizures. (Id. at 2048). Overall, Dr. Greenberg testified that as

far as what was indicated in the medical records, there were no concerns regarding

Owen’s intake/breastfeeding and no concerns with hypoglycemia. (Id. at 2081).

         {¶40} Moreover, Dr. Greenberg stated that even if there had been problems

with Owen’s intake, he opined that there were two reasons that he believed the

hypoglycemia had been metabolic and not related to a lack of nutrition. (Id. at

2082).     First, Dr. Greenberg stated that when hypoglycemia is the result of

inadequate nutrition, because there is already stored glucose in a newborn’s body

when it is born, if the baby does not get adequate nutrition from birth, one would

expect to see the glucose level decrease, maybe to a level of 20 or 30. (Id. at

2085). Here, the level was between one and zero, which suggested an abnormal

metabolic process or regulation of the maintenance of glucose in Owen’s body.

Second, Dr. Greenberg said that despite the fact that the hospitals had been

providing good nutrition and providing good glucose to Owen, Owen’s glucose

levels were difficult to manage, which indicated again that his hypoglycemia had

been metabolic and not nutritional. Despite the subsequent hospitals’ glucose

treatment, there were several periods of time, over the course of a few days, where

Owen had had subsequent episodes of hypoglycemia: his glucose level would rise



                                        -27-
Case No. 1-09-24


into a normal range (92), and then it would drop suddenly to a dangerous level

(23). (Id. at 2082-88). If Owen’s hypoglycemia had been the result of inadequate

nutrition, Dr. Greenberg testified that the subsequent hospitals glucose treatment

would have immediately resolved the hypoglycemia. (Id. at 2084). However,

here Owen’s glucose level “bounce[d] all over the place,” despite the hospitals

attempts to stabilize the glucose level. (Id. at 2087-88).

       {¶41} On cross-examination Dr. Greenberg acknowledged that the APP’s

guideline states that the typical newborn’s weight loss after birth should not be

more than 7%, and here Owen had loss about 5% of his newborn weight after 22

hours. (Id. at 2102-03). Moreover, Dr. Greenberg admitted that he did not know

Owen’s weight at discharge because LMH had failed to weigh Owen again;

however, when Owen was weighed at Joint Township Hospital, his weight was the

same as it had been at LMH. (Id. at 2102-15). In addition, he stated that Owen’s

bilirubin level at Joint Township Hospital had been 15.6, which at that level, using

any of the acceptable charts a physician would be considering the phototherapy

treatment. (Id. at 2128-29). Although, Dr. Greenberg later clarified that neither

one of the bilirubin curves could be used to predict hypoglycemia. (Id. at 2158).

Furthermore, Dr. Greenberg admitted that the neurologists and endocrinologists at

Dayton Children’s Hospital never found an inborn error of metabolism or a

genetic cause for Owen’s hypoglycemia. (Id. at 2134). While Dr. Greenberg



                                         -28-
Case No. 1-09-24


agreed with the statement that occasionally hypoglycemia may be asymptomatic in

newborns and that one would certainly want to treat the hypoglycemia once it was

diagnosed despite the lack of symptoms, here Owen had not exhibited any of the

symptoms of hypoglycemia nor did he have any prenatal factors that would have

led to one doing a glucose check. (Id. at 2138, 2145-51, 2162).        Finally, Dr.

Greenberg’s testimony concluded, as follows:

       A. And if Owen was treated before his hypoglycemia got to the
       level that it did, zero, there’s a good chance he would not have
       been injured; correct?
       Q. Actually, I don’t agree with that based on my experience
       and looking at the record of how difficult it was to maintain his
       blood sugars. I don’t have an opinion, at least to a reasonable
       degree of medical certainty, that he would have done well even if
       his treatment had been initiated earlier.
       ***
       Well, because of the intractable nature of his low blood sugars
       over a period of several days, that is my impression. I’ve
       managed babies with hyperinsulinism and hypoglycemia and
       this is the typical pattern.

(Id. at 2162-63).

       {¶42} The jury heard all of the above testimony and found for Nurse

Hunnaman, Nurse Baker, and Nurse Bollenbacher, and for LMH by and through

its three nurses. Specifically, the jury found that only Nurse Baker and Nurse

Bollenbacher had deviated from the acceptable standard of care, but that despite

these deviations, their conduct had not been the proximate cause of Owen’s injury.

Nevertheless, the Clements argue that the jury’s verdicts were against the manifest



                                       -29-
Case No. 1-09-24


weight of the evidence given the nurses’ admissions, plus the fact that the

defendant’s failed to present a contradictory nursing expert. The Clements claim

that the evidence can only lead to one conclusion: that the nurses, and also thereby

LMH, were negligent and thus liable for Owen’s injury. We disagree.

       {¶43} Despite the Clements’ assertions that Nurse Baker and Nurse

Bollenbacher admitted their negligence during trial, after reviewing their

testimony, we find that the nurses’ admissions were not outright admissions of

liability; rather, they admitted to negligent conduct, but not that their negligence

was the proximate cause of Owen’s injury. They only stated that their failures to

document, and the discharge of Owen without a written order, fell below the

acceptable standards of care. Again, in order to establish a medical malpractice

claim, the Clements had to prove by a preponderance of the evidence the existence

of a standard of care within the medical community, a breach of that standard of

care by the defendants, and proximate cause between the medical negligence and

the injury sustained. Young-Hatten v. Taylor, 10th Dist. No. 08AP-511, 2009-

Ohio-1185, ¶29, citing Jones v. Schirmer (July 17, 2001), 10th Dist. No. 00AP-

1330. Failure to prove proximate cause, despite evidence of breach, is fatal to

one’s medical malpractice action. And the law is clear that a deviation from the

applicable standard of care, along with the existence of an injury, does not alone

sufficiently establish a causal connection between the two. Rockwell v. Queen



                                       -30-
Case No. 1-09-24


City Bottling Co. (1943), 73 Ohio App. 42, 53 N.E.2d 528, citing Flamm v. Coney

Island Co. (1934), 49 Ohio App. 122, 195 N.E. 401, paragraph three of the

syllabus.

         {¶44} In addition, we do not find the defendants’ failure to present a

nursing expert dispositive. The Clements’ nursing expert, Nurse DiCostanzo,

testified that in her expert opinion Owen should not have been discharged early

from LMH. This opinion only went to whether the nurses had breached their

standard of care, not to whether such breaches were the proximate cause of

Owen’s injury. Her testimony failed to establish how Owen’s injury was a natural

and continuous consequence of failing to keep Owen at LMH for the requisite 48-

hours.      While she did testify that she had concerns about Owen’s medical

condition based on certain problems she had found (5% weight loss,

breastfeedings, voiding/stoolings), she failed to offer an opinion as to how those

concerns and the nurses’ breaches proximately caused Owen’s injury.

         {¶45} Nevertheless, even if Nurses Baker, Bollenbacher, and DiCostanzo’s

testimony offered some proof that a reasonable trier of fact could have concluded

that the nurses’ conduct was the proximate cause of Owen’s injury, under a

manifest weight argument we do not weigh the evidence nor judge the credibility

of the witnesses.    Our role is simply to determine whether there is relevant,

competent, credible evidence upon which the fact finder could base its judgment.



                                       -31-
Case No. 1-09-24


Wells Fargo Financial Leasing, Inc. v. Rinard, 5th Dist. No. 07-CA-8, 2008-Ohio-

437. Here, after reviewing the whole record, we believe that there was competent,

credible evidence to support the jury’s conclusions.

      {¶46} While, Nurse DiCostanzo and Dr. Trotter believed that Owen’s

records showed the following problems: significant weight loss, inadequate

nutrition from the breastfeedings, inadequate number of voidings/stoolings, and an

elevated level of bilirubin; Nurse Hunnaman, Dr. Romero, and Dr. Greenberg

believed that Owen’s records did not demonstrate that Owen was having

problems, rather they believed that his records showed that he was a normal,

healthy baby. Nurse Hunnaman, Dr. Romero, and Dr. Greenberg testified that the

5% loss of weight had been within the normal range of expected weight loss

among newborns. Moreover, when looking at the records, despite a few times

where there were latching problems, which all of the witnesses said was to be

expected with first-time mothers, none of them believed that Owen had been

having problems breastfeeding – most of the breastfeeds were labeled “well,” and

there were notations that there had been a normal suck, cry, and swallow.

Moreover, even if there had been issues concerning the breastfeedings, Dr.

Greenberg opined that Owen’s hypoglycemia was not likely related to any

nutritional problems considering the difficulty in controlling his blood sugar over

a period of a few days. With respect to the voiding and stooling, Dr. Romero and



                                       -32-
Case No. 1-09-24


Dr. Greenberg testified that Owen had had reasonable amounts of voids and stools

while he was at LMH, which was further indication that everything was working

fine. Even Nurse DiCostanzo admitted that following the APP’s guidelines for

early discharges would be reasonable, and in Owen’s case, he had had the

requisite number of voidings and stoolings to comply with early discharge.

       {¶47} In regards to the elevated bilirubin, several witnesses testified that

there were other causes of elevated bilirubin besides inadequate nutrition, and that

jaundice (caused by elevated bilirubin) was also not an uncommon occurrence in

newborns. Dr. Trotter and Nurse DiCostanzo believed that by using the Bhutani

chart one could have predicted Owen’s bilirubin level, which had been 7.7 at

LMH, would increase later up to 15.6 at Joint Township Hospital. However, Dr.

Romero and Dr. Greenberg stated that the bilirubin chart was not designed to

predict future levels of bilirubin; rather, its purpose was to identify the risk level of

the newborn for a phototherapy treatment.            In addition, it was clear that

phototherapy is the most common treatment for elevated bilirubin levels, and

Owen was never given this treatment.        Finally, although Dr. Romero stated that

he would have liked to have had another bilirubin test prior to discharging Owen,

Dr. Greenberg testified that he would have felt comfortable discharging Owen

with a bilirubin level of 7.7 because Owen’s subsequent hypoglycemia had not

been related to his elevated levels of bilirubin.



                                          -33-
Case No. 1-09-24


      {¶48} Overall, neither Nurse Hunnaman, Dr. Romero, nor Dr. Greenberg

observed or found that Owen had exhibited jaundice, lethargy, jitteriness, low

tone, limpness, seizures, low body temperature (all signs of hypoglycemia), during

his time at LMH. While there were no notations in Owen’s record proving that

these things were negative, it was clear from the LMH caretakers that only those

things which are found to be abnormal are marked down in a patient’s chart.

      {¶49} We acknowledge that the Clements presented some evidence that the

LMH nurses had breached their standard of care and that their breaches were the

proximate cause of Owen’s injury. However, there was also evidence to the

contrary presented through the testimony of Nurse Hunnaman, Dr. Romero, and

Dr. Greenberg, and it was certainly within the province of the jury to believe their

testimony over the testimony of Nurse DiCostanzo and Dr. Trotter. We will not

second guess the jury’s determinations of weight and credibility.

      {¶50} Accordingly, because we find that there was competent, credible

evidence to support the jury’s conclusions that the three nurses were not the

proximate cause of Owen’s injury, we find that the jury’s verdicts, that the three

nurses, and also thereby LMH, were not negligent for Owen’s injury, were not

against the manifest weight of the evidence.

      {¶51} The Clements’ fourth assignment of error is, therefore, overruled.




                                       -34-
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               PLAINTIFFS’ ASSIGNMENT OF ERROR NO. I

       THE TRIAL [sic] ERRED, AS A MATTER OF LAW, BY
       REFUSING TO GRANT A DIRECTED VERDICT IN FAVOR
       OF PLAINTIFF-APPELLANTS UPON THE ADMITTED
       NEGLIGENCE OF THE NURSES EMPLOYED BY
       DEFENDANT-APPELLEE, LIMA MEMORIAL HOSPITAL.

       {¶52} In their first assignment of error, the Clements argue that the trial

court erred by failing to grant them a directed verdict when the nurses had already

admitted their conduct constituted negligence.

       {¶53} A motion for a directed verdict presents a question of law. Good

Year Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-

2842, 769 N.E.2d 835, ¶4, citing O’Day v. Webb (1972), 29 Ohio St.2d 215, 280

N.E.2d 896, paragraph three of the syllabus; Wagner v. Roche Laboratories

(1996), 77 Ohio St.3d 116, 119, 671 N.E.2d 252. As such, we review the trial

court’s decision to grant or deny the motion de novo.           Id.   Civ.R. 50(A)(4)

provides that a trial court shall grant a party’s motion for directed verdict if, after

construing the evidence most strongly in favor of the non-moving party,

“reasonable minds could come to but one conclusion upon the evidence submitted

and that conclusion is adverse to [the non-moving party].”            In making this

determination, the trial court must decide whether the non-moving party presented

evidence of substantial probative value in support of its claim. Good Year Tire &

Rubber Co., 2002-Ohio-2842, at ¶3, citing Ruta v. Breckenridge-Remy Co. (1982),



                                         -35-
Case No. 1-09-24


69 Ohio St.2d 66, 69, 430 N.E.2d 935. It is clear that “‘if there is substantial

competent evidence to support the party against whom the motion is made, upon

which evidence reasonable minds might reach different conclusions, the motion

must be denied.” Ramage, 64 Ohio St.3d at 109, citing Kellerman v. J.S. Durig

Co. (1964), 176 Ohio St. 320, 199 N.E.2d 562. If the non-moving party cannot

present “substantial competent evidence” from which reasonable minds could

draw different conclusions, then the motion should be granted. Shreve v. United

Elec. & Constr. Co. Inc., 4th Dist. No. 01CA2626, 2002-Ohio-3761, ¶26.

      {¶54} Again, in order to establish a medical malpractice claim, the

Clements had to prove by a preponderance of the evidence the existence of a

standard of care within the medical community, a breach of that standard of care

by the defendants, and proximate cause between the medical negligence and the

injury sustained. Young-Hatten, 2009-Ohio-1185, at ¶29, citing Jones v. Schirmer

(July 17, 2001), 10th Dist. No. 00AP-1330. See, also, Bruni v. Tatsumi, 46 Ohio

St.2d at 131-32. With respect to nurses and negligence actions, “expert testimony

must be presented to establish the prevailing standard of care, a breach of that

standard, and that the nurse’s negligence, if any, was the proximate cause of the

patient’s injury.” Ramage, 64 Ohio St.3d 97, paragraph one of the syllabus. If the

plaintiffs failed to offer expert medical testimony to prove that the injury was

proximately caused by the deviation from the standard of care, a directed verdict



                                      -36-
Case No. 1-09-24


for the defendant is proper. Schwimmer v. Bowsher (Feb. 25, 1993), 10th Dist.

No. 92AP-1140, discretionary appeal denied in Schwimmer v. Bowsher (1993), 67

Ohio St.3d 1411, 615 N.E.2d 1045.

       {¶55} The Clements argue that they were entitled to a directed verdict

based upon the admitted negligence by the nurses. The parties agree about the

applicable nursing standard of care in this case, which includes “a duty to keep the

attending physician informed of a patient’s condition so as to permit the physician

to make a proper diagnosis of and devise a plan of treatment for the patient.”

Albain v. Flower Hosp. (1990), 50 Ohio St.3d 251, 265, 553 N.E.2d 1038,

overruled on other grounds by Clark v. Southview Hosp. & Family Health Ctr.

(1994), 68 Ohio St.3d 435, 628 N.E.2d 46. In addition, “[i]n order to fulfill the

foregoing duty, nurses must perform a competent nursing assessment of the patient

to determine those signs and symptoms presented by the patient that are

significant” in relation to the physician’s tasks of diagnosis and treatment.

Berdyck v. Shinde (1993), 66 Ohio St.3d 573, 580, 613 N.E.2d 1014. The issue

regarding the Clements’ assignment of error is whether the nurses’ alleged

admissions during the trial warranted a directed verdict in their favor.           In

particular, they claim that at trial, Nurse Baker and Nurse Bollenbacher admitted

that they had violated their nursing standard of care, and that as a result, they were

entitled to a directed verdict.



                                        -37-
Case No. 1-09-24


       {¶56} In particular, the Clements claim that the following testimony by

Nurse Baker was an admission of her negligence:

       Q. Well, isn’t it correct that the reasonably accepted standards
       indicate that a nurse should both note and document skin color
       at discharge?
       A. If we get assessing and we get pulled away, don’t get
       documentation done and don’t remember, we’re human. We
       don’t go back to document sometimes. That happens.
       Q. Am I correct, that it’s a deviation from reasonable care not
       to note and document?
       A. Yes.
       Q. And would you agree that if a nurse didn’t note and
       document her findings, she deviated from reasonable care;
       correct?
       A. Yes.
       ***
       Q. And failing to identify for a doctor or tell them when a baby
       is not voiding correctly is also a deviation; correct?
       A. Yes.
       Q. So you deviated by not notifying the doctor, correct, if you
       had looked at the chart?
       A. Yes.

(Vol. IV, Tr. at 860-63).

       {¶57} With respect to discharging Owen, Nurse Bollenbacher testified as

follows:

       Q. One of the things you cannot do without an order is
       discharge a baby?
       A. Correct.
       Q. In this case, there is no record of an order allowing you to
       discharge this baby; correct?
       A. I would never discharge a baby without an order.
       Q. I didn’t ask you that, Ma’am.
       A. There is no order in the record.
       ***


                                     -38-
Case No. 1-09-24


      Q. There can be orders that are given by the a [sic] doctor
      verbally where you as a nurse write it in and then he signs it
      later; correct?
      A. Correct.
      Q. And, in fact, the reasonably accepted standard of care
      requires if you’re talking to a doctor over the phone, which
      happens all the time in your practice - -
      A. Yes.
      Q. Correct?
      A. Uh-huh.
      Q. Requires you to write it in the chart; correct?
      A. Uh-huh.
      Q. And you can’t act on it until you wrote it in the chart;
      correct?
      A. Correct.

(Vol. IV, Tr. at 867-870). There was no indication in the chart that she ever tried

to call a physician to obtain a discharge order for Owen, and as a result, Nurse

Bollenbacher admitted that she had not complied with the reasonably accepted

standards of care when she had discharged Owen. (Id. at 899-900). She also

stated that she would have known that Owen’s bilirubin level was 7.7 from the test

results in his chart at the time she took care of Owen, and that no follow-up test

was ever done. (Id. at 890). Moreover, she stated that nurses are normally

supposed to assess a baby’s skin color every eight hours, but that in Owen’s case

no one had noted his skin color any time after midnight on January 20th. (Id. at

874, 890). In addition, she stated that she had not noted or evaluated Owen’s

vitals at the time of his discharge, although she stated that it was not routine or




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Case No. 1-09-24


needed, and that she would have known by Owen’s charts that he had lost 5.2% of

his body weight since birth. (Id. at 871).

       {¶58} The Clements state that under Winkler v. City of Columbus (1948),

149 Ohio St. 39, 77 N.E.2d 461, there is an affirmative duty on a trial court to

sustain a motion for directed verdict where a party has through its case in chief or

on cross-examination admitted negligence. In Winkler, the Court reasoned that

“where plaintiff herself makes admissions that her negligence contributed directly

to her injury (one of the precise ultimate facts in issue) a question of law * * * is

raised and the trial court has a plain duty to sustain a motion for directed verdict.”

Id. at 43-44.   However, we do not believe that the trial court erred when it

overruled the Clements’ motion for a directed verdict.

       {¶59} Again as we stated above, despite the Clements’ assertions that

Nurse Baker and Nurse Bollenbacher admitted their negligence during trial, we

find that the nurses’ admissions were not solely proof of their negligence and that

their negligence was the proximate cause of Owen’s injury. They only stated that

their failures to document and the discharge of Owen without a written order fell

below the acceptable standards of care. They made no mention of whether they

believed their negligence proximately caused Owen’s injury. Moreover, unlike

the plaintiff’s admissions in Winkler, the nurses’ admissions of their breaches of

duty were not also evidence that their breaches clearly contributed directly to



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Case No. 1-09-24


Owen’s injury. See Winkler, 149 Ohio St. at 39-44 (plaintiff’s admissions that she

knew of the dangerous condition in the sidewalk but chose to walk on it anyways,

were of a nature that they showed clearly that her negligence contributed directly

to her injury [one of the precise, ultimate facts in issue], thus defendant’s motion

for directed verdict should have been granted.)

       {¶60} The law is clear that the existence of an injury and a deviation from

the applicable standard of care are alone insufficient to establish a causal

connection between the two. Rockwell v. Queen City Bottling Co. (1943), 73 Ohio

App. 42, 53 N.E.2d 528, citing Flamm v. Coney Island Co. (1934), 49 Ohio App.

122, 195 N.E. 401, paragraph three of the syllabus. While there may have been

clear admissions that the nurses conduct fell below the applicable standard of care,

here there was conflicting evidence as to the issue of proximate cause. The

Clements introduced evidence by way of its expert witnesses that Owen should not

have been discharged early, because there were signs that he was sick at LMH

(5% weight loss, inadequate nutrition, elevated bilirubin level, decreased numbers

of voiding and stooling). However, there was also evidence provided by Owen’s

LMH caretakers that these were not medically significant and were common

occurrences in newborns. Overall, when viewing the above evidence (excluding

the defense doctor’s testimony) in a light most favorable to the defendants,

reasonable minds could have come to different conclusions that despite the nurses’



                                       -41-
Case No. 1-09-24


admissions, the nurses and LMH were not the proximate cause of Owen’s brain

injury. Therefore, the trial court did not err when it denied the Clements’ motion

for directed verdict.

       {¶61} The Clements’ first assignment of error is, therefore, overruled.

       {¶62} Because the defendants raise an issue with respect to their motion for

directed verdict, we will address their cross-assignment of error next.

             DEFENDANTS’ CROSS ASSIGNMENT OF ERROR

       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
       BY OVERRULING DEFENDANTS/APPELLEES MOTION
       FOR A DIRECTED VERDICT AFTER PLAINTIFF FAILED
       TO PRODUCE EVIDENCE OF PROXIMATE CAUSE.

       {¶63} Similarly, in their cross-assignment of error, the defendants argue

that the trial court erred by failing to grant them a directed verdict because the

Clements had failed to establish a causal link between the allegations of poor

breastfeeding, lack of voiding, jaundice, and weight loss and Owen’s

hypoglycemia. For similar reasons stated in the Clements’ first assignment of

error, we disagree with the defendants.

       {¶64} Here, the defendants argue that the Clements failed to offer any

evidence that the nurses and LMH’s conduct proximately caused Owen’s brain

injury. In particular, the defendants claim that since the Clements experts could

not offer any explanation as to the underlying cause of Owen’s hypoglycemia,

they could not state to any degree of medical probability how the outcome would


                                          -42-
Case No. 1-09-24


have been different if Owen had not been discharged early. However, when

looking at the evidence in a light most favorable to the Clements, we find that the

Clements’ experts provided at least some competent, credible evidence upon

which reasonable minds could have reached different conclusions as far as

whether Owen should have been released from LMH. Dr. Trotter specifically

testified that had Owen not been discharged from LMH and had more tests been

ordered, Owen’s brain injury, which was caused by hypoglycemia, could have

been avoided. Furthermore, Nurse DiCostanzo and Dr. Trotter testified as to

concerns that they had found with Owen’s medical condition, which should have

put the nurses and LMH on notice that Owen was not a healthy newborn (5%

weight loss, inadequate nutrition, elevated bilirubin level, decreased numbers of

voiding and stooling). Thus, when considering this evidence in a light most

favorable to the Clements, we believe that reasonable minds could have come to

different conclusions as to whether the LMH nurses and LMH were the proximate

cause of Owen’s injury. Thus, the trial court did not err when it denied the

defendants’ motion for directed verdict.

      {¶65} The defendants’ cross-assignment of error is, therefore, overruled.

              PLAINTIFFS’ ASSIGNMENT OF ERROR NO. II

      THE TRIAL JUDGE ABUSED HIS DISCRETION IN
      ALLOWING A PHYSICIAN TO BE CALLED AS AN
      EXPERT TO CONFUSE THE PROCEEDINGS BY
      FURNISHING OPINIONS WHICH WERE IRRELEVANT.


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Case No. 1-09-24



      {¶66} In their second assignment of error, the Clements argue that the trial

court abused its discretion when it allowed the defendants to call Dr. Greenberg as

an expert witness because his testimony was irrelevant and confusing. While the

Clements do not dispute the trial court’s ruling that Dr. Greenberg could not

render opinions with respect to the nursing standard of care, the Clements do not

believe that Dr. Greenberg should have been allowed to offer any explanations as

to what could have been concerning to him as a doctor under the facts of this case.

The Clements argue that Dr. Romero had already been dismissed from the case,

thus the only question that remained was whether the LMH nurses had complied

with the duty of care. Therefore, Dr. Greenberg’s testimony was irrelevant and

highly prejudicial under the circumstances.

      {¶67} “The admission of evidence is generally within the sound discretion

of the trial court, and a reviewing court may reverse only upon the showing of an

abuse of that discretion.” Peters v. Ohio State Lottery Comm. (1992), 63 Ohio

St.3d 296, 299, 587 N.E.2d 290. An abuse of discretion constitutes more than an

error of law or judgment and implies that the trial court acted unreasonably,

arbitrarily, or unconscionably. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,

219, 450 N.E.2d 1140.      When applying the abuse of discretion standard, a

reviewing court may not simply substitute its judgment for that of the trial court.

Id.


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Case No. 1-09-24


       {¶68} The Clements’ assignment of error specifically concerns the

admissibility of Dr. Greenberg’s testimony. Only relevant evidence is admissible

at trial. Evid.R. 402. “‘Relevant evidence’ means evidence having any tendency

to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.”

Evid.R. 401. Nevertheless, even relevant evidence can be inadmissible when it is

unduly prejudicial, confusing, or misleading to the jury. Evid.R. 403.

       {¶69} Overall, we find that contrary to the Clements’ statement, Dr.

Romero was still a party to the case when the defendants called Dr. Greenberg to

testify at trial. Thus, Dr. Greenberg’s testimony was significantly relevant with

respect to whether Dr. Romero’s actions constituted a breach of his professional

standard of care. In addition, we find that while Dr. Greenberg could not offer any

opinions as to the standard nursing practices, his testimony was relevant as far as

Owen’s condition at discharge. Therefore, we find that the trial court did not

abuse its discretion when it allowed Dr. Greenberg to testify at trial.

       {¶70} The Clements’ second assignment of error is, therefore, overruled.

              PLAINTIFFS’ ASSIGNMENT OF ERROR NO. III

       THE JURY WAS FURNISHED WITH AN INCORRECT
       STATEMENT OF OHIO LAW, AND PLAINTIFF-
       APPELLANTS’ BURDEN OF PROOF WAS BROADENED
       SUBSTANTIALLY, WHEN THE TRIAL JUDGE READ THE
       UNPRECEDENTIED “FORESEEABILITY” INSTRUCTION



                                         -45-
Case No. 1-09-24


      WHICH HAD             BEEN      DEVISED       BY     DEFENDANT-
      APPELLEES.

      {¶71} In their third assignment of error, the Clements argue that the jury

was given incorrect statements of law, and because of the erroneous and

misleading charge, the Clements are entitled to a new trial. In particular, the

Clements claim that the charge on “foreseeability” was an incorrect statement of

Ohio law, and that it essentially created a higher burden for the Clements in their

medical malpractice case by making it appear that “foreseeability” was an

additional element that they had to prove.

      {¶72} The trial court has the duty to instruct the jury on the applicable law

on all issues raised by the pleadings and evidence, and it must give jury

instructions that correctly and completely state the law. Pallini v. Dankowski

(1969), 17 Ohio St.2d 51, 53, 245 N.E.2d 353; Marshall v. Gibson (1985), 19

Ohio St.3d 10, 12, 482 N.E.2d 583; Murphy v. Carrollton Mfg. Co. (1991), 61

Ohio St.3d 585, 591, 575 N.E.2d 828; Groob v. Keybank, 108 Ohio St.3d 348,

2006-Ohio-1189, 843 N.E.2d 1170, ¶32. A jury charge should be “a plain, distinct

and unambiguous statement of the law as applicable to the case made before the

jury by the proof adduced.” Marshall, 19 Ohio St.3d at 12, citing Parmlee v.

Adolph (1875), 28 Ohio St. 10, paragraph two of the syllabus. Furthermore, “[a]

charge ought not only be correct, but it should also be adapted to the case and so




                                       -46-
Case No. 1-09-24


explicit as not to be misunderstood or misconstrued by the jury.” Id., citing Aetna

Ins. Co. v. Reed (1877), 33 Ohio St. 283, 295.

       {¶73} Generally, trial courts have discretion in determining how to charge

a jury, and thus our review of the trial court’s decision would typically be under an

abuse of discretion. American States Ins. Co. v. Caputo (1998), 126 Ohio App.3d

401, 408, 710 N.E.2d 731. However, whether jury instructions correctly state the

law is a question of law that we review de novo. State v. Calderon, 10th Dist.No.

05AP-1151, 2007-Ohio-377, ¶55. Although an instruction may not be a full and

comprehensive statement of the law, as long as it correctly states the law pertinent

to the issues raised in the case, its use is not reversible error. Henderson v. Spring

Run Allotment (1994), 99 Ohio App.3d 633, 638, 651 N.E.2d 489. And while an

inadequate jury instruction that misleads the jury constitutes reversible error,

“misstatements and ambiguity in a portion of the instructions will not constitute

reversible error unless the instructions are so misleading that they prejudicially

affect a substantial right of the complaining party.’” Haller v. Goodyear Tire

Rubber Co., 9th Dist. Nos. 20669, 20670, 2002-Ohio-3187, ¶19, quoting Wozniak

v. Wozniak (1993), 90 Ohio App.3d 400, 410, 629 N.E.2d 500 (internal citations

omitted). See, also, Kokitka v. Ford Motor Co. (1995), 73 Ohio St.3d 89, 93, 652

N.E.2d 671; Groob, 2006-Ohio-1189, at ¶32; Marshall, 19 Ohio St.3d at 12, citing

Columbus Ry. Co. v. Ritter (1902), 67 Ohio St. 53, 65 N.E. 613.



                                        -47-
Case No. 1-09-24


       {¶74} Here, the Clements take issue with the highlight portions of the trial

court’s instruction to the jury on “foreseeability,” which stated:

       Reasonable foreseeability of harm is an essential ingredient of
       negligence in the action brought against the defendants. The test
       for foreseeability is not whether a defendant should have
       foreseen the injury exactly as it happened to the specific person.
       The test is whether under all the circumstances a reasonably
       prudent person would have anticipated that injury was likely to
       result to someone from the act or failure to act. The test,
       therefore, is one of foreseeability or foresight, not hindsight.

(emphasis added).

       {¶75} With respect to the Clements’ issue with the phrase “foresight, not

hindsight,” we find that this was not an inaccurate statement regarding the law.

Even though this language is absent from the Ohio Jury Instructions (hereinafter

“OJI”), the OJI instructions are only models or guidelines and are not mandatory.

State v. Burchfield (1993), 66 Ohio St.3d 261, 263, 611 N.E.2d 819. With respect

to foreseeability, the question is one looking forward from the time of the

purported negligent action (foresight), not looking back after the injury has

occurred (hindsight). Grabill v. Worthington Industries, Inc. (1994), 98 Ohio

App.3d 739, 744, 649 N.E.2d 874 (“[i]t is nearly always easy, after an [incident]

has happened to see how it could have been avoided. But negligence is not a

matter to be judged after the occurrence.”) However, we do find that the first

sentence in the jury charge on foreseeability is not a clear or completely accurate

statement regarding the law of negligence. Nevertheless, this statement is only a


                                         -48-
Case No. 1-09-24


small portion of the trial court’s overall instruction on negligence. “Reversible

error ordinarily can not be predicated upon one paragraph, one sentence or one

phrase of the general charge to the jury.” Synder v. Stanford (1968), 15 Ohio

St.2d 31, 238 N.E.2d 563, paragraph three of the syllabus. Where a trial court

misstates the law or creates ambiguity in a portion of its jury instructions, it is not

reversible error where the court’s instructions, considered as a whole, are not

prejudicial to the objecting party. Id. See, also, State v. Porter (1968), 14 Ohio

St.2d 10, 235 N.E.2d 520; Centrello v. Basky (1955), 164 Ohio St. 41, 128 N.E.2d

80; Ochsner v. Cincinnati Traction Co. (1923), 107 Ohio St. 33, 140 N.E. 644;

Williams v. Oeder (1995), 103 Ohio App.3d 333, 342, 659 N.E.2d 379. After

reviewing the trial court’s instructions on negligence as a whole, we do not believe

that they were prejudicial.

       {¶76} The Clements’ third assignment of error is, therefore, overruled.

       {¶77} Having found no error prejudicial to the appellants or cross-

appellants herein in the particulars assigned and argued, we affirm the judgment of

the trial court.

                                                                 Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




                                         -49-
