[Cite as McNeilan v. Ohio State Univ., 2010-Ohio-1774.]




                                                          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 Alan C. Travis
Magistrate Lewis F. Pettigrew

DECISION




        {¶ 1} On November 23, 2009, 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).” Plaintiff timely filed his objections, and on January 25, 2010, defendant
filed a response.
        {¶ 3} Plaintiff brought this action on behalf of the estate of the decedent, Harley
Nutt, alleging wrongful death. Plaintiff alleged that Mr. Nutt died as a result of peritonitis
on January 31, 2004, several days after Dr. Robert Michler performed heart bypass and
aortic valve replacement surgery at defendant’s hospital, The Ohio State University
Medical Center (OSUMC). During surgery Mr. Nutt experienced impaired blood flow
(ischemia) to an area of the small intestine which impairment was undetectable prior to
his discharge. After Mr. Nutt was discharged from OSUMC, the ischemic injury to the
bowel wall resulted in perforation and leakage of bowel contents into the abdominal
cavity. Mr. Nutt died on January 31, 2004, either during transport back to or upon
arrival at OSUMC.
       {¶ 4} Plaintiff’s expert, Dr. Balke, opined that the quality of Dr. Michler’s care
and treatment of Mr. Nutt fell below the accepted standard of care when he elected to
discharge Mr. Nutt only three days after the surgery. In addition, Dr. Balke testified that
Dr. Michler was negligent in that he both failed to properly respond to the decedent’s
complaints of persistent vomiting after he was discharged and failed to recognize signs
of an abdominal infection. According to Dr. Balke, had Mr. Nutt remained in the hospital
for a longer period of time postoperatively, he would have had a better than 50 percent
chance of survival because the ischemic injury would have been identified early on and
appropriate treatment instituted.
       {¶ 5} Based upon the testimony and evidence presented, the magistrate found
that Dr. Michler’s care and treatment of plaintiff’s decedent met the applicable standard
of care. Specifically, the magistrate determined that the evidence supported the finding
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, particularly
when such criteria are analyzed in the context of Mr. Nutt’s pre-existing medical
conditions. The magistrate also found that the timing of his discharge from the hospital
after surgery was not a substantial factor in bringing about Mr. Nutt’s demise. Finally,
the magistrate determined that Dr. Michler’s care of Mr. Nutt after he was discharged
from the hospital did not fall below the standard of care.
       {¶ 6} Plaintiff asserts several objections to the magistrate’s decision. The court
is required to independently review the objections “to ascertain that the magistrate has
properly determined the factual issues and appropriately applied the law.” Chan v.
Tasr, Hamilton App. No. C-070275, 2008-Ohio-1439 ¶8. Civ.R. 53 (D)(3)(b)(iii) states
that objections to factual findings by a magistrate “shall be supported by a transcript of
all the evidence submitted to the magistrate relevant to that finding * * *.” Although
plaintiff did not file a transcript to support the objections, defendant filed a complete
copy of the trial transcript.
       {¶ 7} Plaintiff’s first, second, third, and fourth objections generally reiterate the
arguments that were considered and rejected by the magistrate. Plaintiff argues that
the magistrate should have given more weight to plaintiff’s expert’s opinion in that such
opinion was supported by the medical information recorded in Mr. Nutt’s chart.
However, the court notes that all of the experts who testified offered their opinions
based upon the information contained in the medical records; each merely interpreted
the significance of the particular readings and notations as they applied to Mr. Nutt. Dr.
Michler explained, quite credibly, that the values recorded for Mr. Nutt were satisfactory
for his postoperative progress, especially in light of his pre-existing medical conditions
which included recurring head and neck cancer and a history of cigarette smoking.
       {¶ 8} Based upon their review of the notes made by the health-care providers
who visited Mr. Nutt every day during the week after discharge, defendant’s experts
opined that Dr. Michler met the standard of care with regard to Mr. Nutt’s treatment,
especially in response to his complaints of nausea and vomiting.           The magistrate
specifically determined that the testimony of Drs. Murphy and Nussbaum was more
persuasive than the opinions offered by Dr. Balke. Dr. Balke conceded that he could
not state with certainty when the perforation occurred.         In contrast, Drs. Michler,
Nussbaum, and Murphy testified that perforation of the bowel is a sudden and
catastrophic event manifested by extreme pain, abdominal rigidity, and loss of bowel
sounds. Thus, they opined that Mr. Nutt’s bowel perforation most likely occurred on
January 30 or 31, within hours before he died. Upon review of the transcript, the court
finds that plaintiff’s first four objections are not supported by the record and are
therefore, OVERRULED.
       {¶ 9} Plaintiff’s fifth objection reiterates the arguments raised in support of the
first and second objections. Plaintiff’s sixth objection references the arguments raised
in plaintiff’s fourth objection. For the same reasons as above, plaintiff’s fifth and sixth
objections are OVERRULED.
       {¶ 10} In the seventh, eighth, tenth,1 eleventh, and twelfth objections, plaintiff
seeks to have the magistrate issue specific findings of fact and conclusions of law.
       {¶ 11} Civ. R. 53(D)(3)(a)(ii) states, in part, that “a magistrate’s decision may be
general unless findings of fact and conclusions of law are timely requested by a party or
otherwise required by law. A request for findings of fact and conclusions of law shall be
made before the entry of a magistrate’s decision or within seven days after the filing of a
magistrate’s decision.” (Emphasis added.) Thus, the court finds that plaintiff’s request
is not timely.
       {¶ 12} Moreover, the purpose of the rule requiring the court to issue separate
findings of fact and conclusions of law is to appraise the parties of the grounds for the
decision and to inform the reviewing court of the reasons for the decision. The test of
their adequacy is whether they are sufficiently comprehensive and pertinent to the issue
to form a basis for the decision. See Strah v. Lake County Humane Society (1993), 90
Ohio App.3d 822, 836; Domestic Linen Supply & Laundry Co. v. Kenwood Dealer Group
Inc., (1996), 109 Ohio App.3d 312. See also 5A Moore, Federal Practice (2 Ed. 1990)
52-142, Section 52.061.
       {¶ 13} The magistrate issued an eight-page decision in this case that included
both factual findings and conclusions of law. Although the findings and conclusion are
not separately set out in the decision, the decision contains sufficient detail to allow
plaintiff to frame her objections and for the court to independently review those
objections.      Under the circumstances, requiring the magistrate to issue separate
findings of fact and conclusions of law would serve no useful purpose. Accordingly,
objections 7, 8, 10, 11, and 12 are OVERRULED.


       1
        Plaintiff failed to identify a ninth objection.
      {¶ 14} 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
shall adopt the magistrate’s decision and recommendation as its own, including findings
of fact and conclusions of law contained therein.




                                             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 Alan C. Travis
Magistrate Lewis F. Pettigrew

JUDGMENT ENTRY




      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 findings of fact and
conclusions of law contained therein.     Judgment is rendered in favor of defendant.
Court costs are assessed against plaintiff. The clerk shall serve upon all parties notice
of this judgment and its date of entry upon the journal.




                                          _____________________________________
                                          ALAN C. TRAVIS
                                          Judge

cc:


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 April 16, 2010
To S.C. reporter April 21, 2010
