[Cite as Rex v. Univ. of Cincinnati College of Medicine, 2013-Ohio-3638.]



                                                         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

DOUGLAS REX, et al.

       Plaintiffs

       v.

UNIVERSITY OF CINCINNATI COLLEGE OF MEDICINE

       Defendant

Case No. 2009-04637

Judge Patrick M. McGrath
Magistrate Anderson M. Renick

JUDGMENT ENTRY

        {¶ 1} This case was tried to a magistrate on the issue of liability. On January 25,
2013, the magistrate issued a decision recommending judgment for defendant.
        {¶ 2} Civ.R. 53(D)(3)(b)(i) states, in part: “A party may file written objections to a
magistrate’s decision within fourteen days of the filing of the decision, whether or not the
court has adopted the decision during that fourteen-day period as permitted by Civ.R.
53(D)(4)(e)(i).” Plaintiffs timely filed their objections on February 8, 2013. On February
14, 2013, plaintiffs filed a copy of the transcript.                 Defendant filed a response on
February 21, 2013.
        {¶ 3} According to the magistrate’s decision, plaintiff, Douglas Rex, was
diagnosed with prostate cancer in the spring of 2008.1                       Plaintiff was subsequently
referred to Robert Bracken, M.D., to explore treatment options. At that time, plaintiff’s
medical history included atrial fibrillation and two episodes involving a deep vein
thrombosis (DVT) for which he had been prescribed Coumadin, an anticoagulant that
slows the body’s ability to stop bleeding.                In preparation for surgery, Dr. Bracken


        1
         For the purposes of this decision, “plaintiff” shall refer to Douglas Rex.
Case No. 2009-04637                         -2-                                   ENTRY

instructed plaintiff to stop taking Coumadin 10 days prior to the procedure, and he
prescribed two daily doses of Lovenox, a short-term anticoagulant. Such a form of
treatment is known as “bridging therapy.”
       {¶ 4} On May 12, 2008, Dr. Bracken performed a robotic wide excision radical
prostatectomy.    The surgery lasted approximately seven hours and plaintiff lost a
significant amount of blood. After the surgery, plaintiff began experiencing difficulty with
his vision while recovering in the intensive care unit and later in a rehabilitation center.
The Cincinnati Eye Institute subsequently diagnosed plaintiff with Ischemic Optic
Neuropathy (ION).
       {¶ 5} The magistrate concluded that plaintiffs failed to prove that Dr. Bracken’s
preoperative and surgical treatment fell below the standard of care. The magistrate was
not persuaded by the testimony of plaintiffs’ expert, Michael Mathers, M.D. Rather, the
magistrate was convinced by the testimony of defendant’s expert, Ronney Abaza, M.D.,
that Dr. Bracken’s actions met the standard of care. The magistrate further determined
that Dr. Bracken credibly testified regarding his consultations with two internists about
bridging therapy and the prescribed dosage of Lovenox.             Finally, the magistrate
determined that plaintiffs failed to prove that any alleged negligence proximately caused
plaintiff injury. The magistrate was not convinced by the testimony of plaintiffs’ expert
Karl Golnik, M.D.      Rather, the magistrate was persuaded by the testimony of
defendant’s expert, Andrew Lee, M.D.
       {¶ 6} In reviewing a party’s objections, the “court must conduct an independent
analysis of the underlying issues, undertaking the equivalent of a de novo determination
and independently assessing the facts and conclusions contained in the magistrate’s
decision.” Shihab & Assoc. Co. LPA v. Ohio Dept. of Transp., 168 Ohio App.3d 405,
2006-Ohio-4456, ¶ 13 (10th Dist.); Dayton v. Whiting, 110 Ohio App.3d 115, 118 (2nd
Dist.1996).
Case No. 2009-04637                         -3-                                    ENTRY

       {¶ 7} In their first objection, plaintiffs argue that the magistrate erred by allowing
the treating physician, Dr. Bracken, to give expert testimony regarding his own care in
treating plaintiff. Specifically, plaintiffs argue that the magistrate should have precluded
Dr. Bracken from offering expert testimony regarding his consultations with internists
and the dosing levels for Lovenox.
       {¶ 8} L.C.C.R. 7(E), provides, in relevant part, that “[I]n the event the expert
witness is a treating physician, the court shall have the discretion to determine whether
the hospital and/or office records of that physician’s treatment which have been
produced satisfy the requirements of a written report.” A review of the transcript reveals
that the magistrate did not consider Dr. Bracken as an expert witness regarding the
standard of care in this case. However, under L.C.C.R. 7(E), Dr. Bracken would qualify
as an expert regarding the treatment he provided to plaintiff and the medical records
would qualify as his expert report. To the extent that Dr. Bracken testified regarding
medical events and treatment not memorialized in the medical records, such an issue is
an issue of credibility rather than admissibility.    The court notes, however, that Dr.
Bracken conceded that he was not an expert regarding the proper dosage of Lovenox.
Ultimately, the magistrate determined that plaintiffs failed to carry their burden of
persuasion regarding any alleged breach of the standard of care.              In short, the
magistrate was not persuaded by the testimony of plaintiffs’ expert that Dr. Bracken
breached the standard of care. The court agrees with the magistrate’s conclusions.
Plaintiffs’ first objection is OVERRULED.
       {¶ 9} In their second objection, plaintiffs argue that the magistrate erred by
admitting hearsay testimony. Plaintiffs argue that Dr. Bracken’s testimony regarding a
consultation he obtained with two internists to determine the proper dosage of Lovenox
constitutes inadmissible hearsay. See Transcript pp. 335-337. After a review of the
transcript, the court determines that although he relied upon a recommendation from the
internists, Dr. Bracken testified regarding his own personal actions in determining the
proper dosage of Lovenox. Moreover, plaintiffs objected after Dr. Bracken had already
Case No. 2009-04637                          -4-                                      ENTRY

answered multiple questions regarding the consultation. Plaintiffs’ second objection is
OVERRULED.
        {¶ 10} In their third objection, plaintiffs argue that the magistrate relied upon non-
credible testimony of Dr. Bracken. Plaintiffs argue that Dr. Bracken could not have
consulted with internists regarding the proper dosage of Lovenox inasmuch as the test
results upon which he relied during the consultation were not available until after plaintiff
had filled his prescription at a local pharmacy. However, Dr. Bracken testified that,
during the consultation, additional testing was recommended and that such additional
testing confirmed his initial impressions. The magistrate found that Dr. Bracken had
credibly testified. It is well-settled that the magistrate, as the trier of fact, is in the best
position to weigh the testimony and assess the credibility of witnesses. Seasons Coal
Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). Moreover, the trier of fact is free to
believe or disbelieve all or any of the testimony. State v. J.L.S., 10th Dist. No. 08AP-33,
2012-Ohio-181. The court agrees with the magistrate’s conclusions. Plaintiffs’ third
objection is OVERRULED.
        {¶ 11} In their fourth objection, plaintiffs argue that the magistrate erred by not
relying upon plaintiffs’ expert witness’s testimony regarding the standard of care.
Plaintiffs argue that defendant failed to offer any evidence regarding an alternative
standard of care.        However, the burden rests upon plaintiffs to prove by a
preponderance of the evidence that the physician’s actions fell below the standard of
care.   Bruni v. Tatsumi, 46 Ohio St.2d 127 (1976), paragraph one of the syllabus.
Furthermore, the magistrate, as the trier of fact, is free to believe or disbelieve any part
of the testimony.     State v. J.L.S., supra.     Upon review, the court agrees with the
magistrate’s conclusions. Plaintiffs’ fourth objection is OVERRULED.
        {¶ 12} In their fifth objection, plaintiffs argue that the magistrate erred in
determining that plaintiffs failed to prove that any alleged breach of the standard of care
proximately caused plaintiff injury. Specifically, plaintiffs argue that the magistrate failed
Case No. 2009-04637                         -5-                                    ENTRY

to address plaintiff’s additional injuries, which required an extended stay in the ICU,
rehabilitation center, and use of a home nurse. However, plaintiffs do not point to any
expert testimony regarding standard of care or proximate cause that connects Dr.
Bracken’s actions with any additional injuries. Moreover, the magistrate determined that
plaintiffs failed to prove that Dr. Bracken’s actions fell below the standard of care. The
court agrees with the magistrate’s determination. Accordingly, plaintiffs’ fifth objection is
OVERRULED.
         {¶ 13} Upon review of the record, the magistrate’s decision and the objections,
the court finds that the magistrate has properly determined the factual issues and
appropriately applied the law. Therefore, the objections are OVERRULED and the court
adopts the magistrate’s decision and recommendation as its own, including the findings
of fact and conclusions of law contained therein. Judgment is rendered in favor of
defendant. Court costs are assessed against plaintiffs. The clerk shall serve upon all
parties notice of this judgment and its date of entry upon the journal.




                                          _____________________________________
                                          PATRICK M. MCGRATH
                                          Judge

cc:


Brian M. Kneafsey, Jr.                        Gregory P. Hartmann
Assistant Attorney General                    Joseph W. Shea III
150 East Gay Street, 18th Floor               Michelle A. Cheek
Columbus, Ohio 43215-3130                     Shirley A. Coffey
                                              119 West Central Parkway
                                              300 Court Index Building
                                              Cincinnati, Ohio 45202

003
Filed April 12, 2013
To S.C. Reporter August 22, 2013
