[Cite as Swartz v. Univ. of Toledo Med. Ctr., 2013-Ohio-1516.]



                                                         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

LAURIE Y. SWARTZ, et al.

        Plaintiffs

        v.

UNIVERSITY OF TOLEDO MEDICAL CENTER

        Defendant

Case No. 2011-07761

Magistrate Anderson M. Renick

DECISION OF THE MAGISTRATE

        {¶ 1} Plaintiffs brought this action against defendant, the University of Toledo
Medical Center (UTMC), alleging negligence and loss of consortium.                               The parties
entered into a stipulation on the issue of liability and the matter proceeded to trial on the
issue of damages.
        {¶ 2} This case arises from a surgical procedure that plaintiff Laurie Swartz
underwent on February 2, 2009 at UTMC.1 On that date, defendant’s employee, Martin
Skie, M.D., performed a right ulnar nerve transposition procedure and, during the
course of the surgery, the ulnar nerve was transected. According to the stipulation, the
parties agreed that the report of plaintiffs’ expert, William Kirkpatrick, M.D., could be
submitted as evidence in lieu of his testimony and that defendant waived its right to
cross-examine Dr. Kirkpatrick. (Plaintiffs’ Exhibit 1.) In his report, Dr. Kirkpatrick states
as follows:
        {¶ 3} “Ms. Swartz was a 47-year-old, right-hand dominant female who was
employed as a probation officer who presented to Dr. Skie on January 13, 2009, with a
two-year history of pain in the right upper extremity.                     An EMG had demonstrated

        1
         For the purposes of this decision, “plaintiff” shall refer to Laurie Swartz.
Case No. 2011-07761                          -2-                                  DECISION

evidence of a right cubital tunnel syndrome. Surgical treatment with a transposition of
the ulnar nerve was recommended and subsequently performed on February 2, 2009.
Unfortunately, during the surgery, the ulnar nerve was transected. Dr. Skie stated that
the transection occurred with the tenotomy scissors most likely while ‘sliding along the
fascia’. The ulnar nerve was repaired with magnification and a neuro-wrap and was
transposed into a submuscular position. Postoperatively, Ms. Swartz was treated for
pain. She also had difficulty at work and described hypersensitivity in her hand as well
as ongoing pain. She was referred to Dr. Atallah for management of a complex regional
pain syndrome with stellate ganglion blocks. She also underwent therapy. On July 27,
2010, she was evaluated by Dr. Baibak who offered her the option of further surgery. A
second surgical procedure was performed on October 25, 2010, which included an
extensive neurolysis of the right ulnar nerve. The ulnar nerve repair appeared to ‘have
healed nicely’, and he identified dilation of the nerve ‘just proximal to where it dove
under the flexor wad’. The nerve was decompressed at that level. Postoperatively, she
continued to note some hypersensitivity and burning pain in the hand as of November
2010. * * * Ms. Swartz will be left with residual difficulties in the function of the right hand
as well as with elements of a complex regional pain syndrome on a permanent basis.”
(Plaintiffs’ Exhibit 1.)
       {¶ 4} Plaintiff testified that she was employed at the Wood County Juvenile Court
and that, prior to the surgery, she experienced numbness and burning in her right hand
following a day of writing, filing, and typing. Plaintiff related that her symptoms became
worse over time and she eventually decided to undergo surgery to relieve those
symptoms. Plaintiff testified that, on the day after her surgery, she began to experience
“excruciating pain” in her hand. Dr. Skie recommended that plaintiff attend physical
therapy sessions for approximately six weeks.           According to plaintiff, the physical
therapy sessions helped to “get back some movement” in her fingers; however, the
therapy exercises were very painful and the treatment did not reduce her pain or feeling
Case No. 2011-07761                        -3-                                DECISION

of hypersensitivity to heat and cold. Plaintiff testified that Dr. Skie referred her to Dr.
Atallah who administered injections in her neck and armpit to “block” her pain. Plaintiff
stated that her arm would feel “dead” for approximately six hours after the blocking
shots, and then her symptoms would return. On October 25, 2010, Laurence Baibak,
M.D., performed a second surgery, which did not result in any relief from plaintiff’s
symptoms. Plaintiff testified that she attended follow-up visits with Dr. Baibak until he
informed her that there “was nothing else he could do.”
       {¶ 5} Dr. Baibak testified by way of deposition that he is a board-certified surgeon
who specializes in plastic and reconstructive surgery, including hand surgery.         Dr.
Baibak examined plaintiff and determined that her limited use of her right hand showed
that there had been some “regeneration” of the ulnar nerve; however, she had “no true
touch sensation when you touch the ulnar part of her hand” and that touching “basically
just stimulated the severe burning pain that she had.” (Plaintiffs’ Exhibit 9, page 9.) Dr.
Baibak also observed that certain muscles associated with the ulnar nerve were “non-
functional.” Based upon his examination, Dr. Baibak’s diagnosis was that plaintiff’s
condition was caused by either a neuroma from scar tissue or causalgia and Reflex
Sympathetic Dystrophy (RSD). Dr. Baibak explained that causalgia and RSD tend to be
permanent whereas pain from a neuroma pressing on a nerve “could be potentially
reversed” by surgery. During the October 25, 2010 surgery, Dr. Baibak noted that the
site of the repair to the ulnar nerve had healed and there was no neuroma or large area
of scar tissue. Dr. Baibak’s diagnosis was neuropathy, a malfunctioning nerve that
caused plaintiff’s hypersensitivity and burning sensations. Plaintiff’s last visit with Dr.
Baibak occurred approximately three weeks following the second surgery, during which
no change in plaintiff’s symptoms were noted.         Dr. Baibak opined that plaintiff’s
symptoms most likely would not improve and that the hypersensitivity and difficulty she
experienced when using her right hand to perform tasks such as writing and eating were
permanent.
Case No. 2011-07761                        -4-                                 DECISION

       {¶ 6} On June 4, 2012, James Popp, M.D., performed an independent medical
examination of plaintiff to evaluate the current condition of her right hand. Dr. Popp
determined that plaintiff has “chronic regional pain syndrome of her right upper
extremity in the ulnar nerve distribution” which affects her daily activities. Dr. Popp
noted plaintiff was hypersensitive to light touch and that she “may benefit” from “some
sort” of rehabilitation and pain medication. Dr. Popp also recommended an evaluation
by another hand surgeon.
       {¶ 7} Plaintiff maintains that she has ongoing pain and hypersensitvity, limitation
of movement of several fingers, as well as atrophy and cramping of certain muscles in
her right hand.    Both plaintiff and her husband, plaintiff Paul Swartz, testified that
plaintiff has difficulty sleeping due to the sensitivity and pain in her right hand and
fingers. Plaintiffs related that they had previously enjoyed riding bicycles, sailing, and
gardening together, but that such activities are now very painful for plaintiff. Plaintiff
testified that daily chores such as cooking, showering, and dressing take longer to
perform and cause her fatigue. Plaintiff stated that she is limited to wearing clothing
with short sleeves and that her husband must trim the fingernails on her right hand
because the task is too painful for her to perform.
       {¶ 8} With regard to her employment, plaintiff testified that she returned to work
after the operation, but that her performance was negatively impacted by her pain and
the limited use of her right hand. Plaintiff testified that her employer provided her with a
voice recognition program to reduce the amount of writing and typing she was required
to perform; however, she discovered that the program was not compatible with other
office software programs.     Plaintiff explained that, despite her efforts to complete
assignments by working during her lunch break and at home, she could not adequately
perform her employment duties. Although plaintiff was not eligible to receive a pension
until she attained the age of 55, she testified that she resigned her position several
Case No. 2011-07761                        -5-                                 DECISION

years early because her decreased performance had become a burden for her
coworkers and adversely affected the families they served.
       {¶ 9} Annette Haskins testified by way of deposition that she was the director of
the probation department at Wood County Juvenile Court and that she had been
plaintiff’s supervisor during plaintiff’s employment with the court. Haskins related that
she had known plaintiff prior to their employment in Wood County and that she
periodically socialized with plaintiff and her husband.     Haskins testified that plaintiff
appeared frustrated by the difficulty she had performing some of her job duties when
she returned to work after her surgery.
       {¶ 10} With regard to plaintiff’s claim for damages related to her early retirement,
the court finds that plaintiff’s injuries affected her work performance, but did not prevent
her from remaining employed. Although plaintiff testified that she felt compelled to
resign her employment as a result of her injuries, both plaintiff and her supervisor
acknowledged that she was able to complete her assigned duties. Indeed, Haskins
testified that plaintiff required additional time to perform some of her duties after the
surgery, however, she continued to be an “excellent” employee. Plaintiff conceded that
she did not apply for disability-retirement benefits and that no one suggested that she
should resign.    Paul Swartz testified that, prior to the surgery, he had retired and
plaintiffs had considered plaintiff retiring at 50 years of age so that they could spend
more time together. Although the court is persuaded that plaintiff’s injuries had some
impact on her work performance, the court finds that plaintiffs have failed to prove that
her injuries were the cause of her resignation such that she is entitled to damages
related to her early retirement.
       {¶ 11} Upon review of the evidence, the court finds that the condition which
causes pain and hypersensitivity in plaintiff’s right hand is permanent in nature and
affects her daily activities. Based upon the totality of the evidence, the court finds that
damages for plaintiff’s past and future pain and suffering and past and future loss of
Case No. 2011-07761                                   -6-                                         DECISION

enjoyment of life exceed the $250,000 per person limit set forth in R.C. 3345.40(B)(3).2
Accordingly, it is recommended that plaintiff be awarded $250,000 for her loss. It is
recommended that Paul Swartz be awarded $150,000 for his loss of consortium.
        {¶ 12} Plaintiff testified that Plaintiffs’ Exhibit 3 represents a compilation of the
expenses incurred for her medical treatment, less insurance payments. According to
plaintiff’s records, her out-of-pocket expenses for medical treatment total $853.88.
Therefore, it is recommended that plaintiffs be awarded compensatory damages for
medical bills in the amount of $853.88.
        {¶ 13} For the foregoing reasons, it is recommended that judgment be rendered
in favor of plaintiffs in the amount of $400,878.88, which includes the $25 filing fee.


        2
          R.C. 3345.40 states, in relevant part:
         “(B) Notwithstanding any other provision of the Revised Code or rules of a court to the contrary, in
an action against a state university or college to recover damages for injury, death, or loss to persons or
property caused by an act or omission of the state university or college itself, by an act or omission of any
trustee, officer, or employee of the state university or college while acting within the scope of his
employment or official responsibilities, or by an act or omission of any other person authorized to act on
behalf of the state university or college that occurred while he was engaged in activities at the request or
direction, or for the benefit, of the state university or college, the following rules shall apply:
         “* * *
         “(2) If a plaintiff receives or is entitled to receive benefits for injuries or loss allegedly incurred
from a policy or policies of insurance or any other source, the benefits shall be disclosed to the court, and
the amount of the benefits shall be deducted from any award against the state university or college
recovered by the plaintiff. No insurer or other person is entitled to bring a civil action under a subrogation
provision in an insurance or other contract against a state university or college with respect to such
benefits.
         “Nothing in this division affects or shall be construed to limit the rights of a beneficiary under a life
insurance policy or the rights of sureties under fidelity or surety bonds.

          “(3) There shall not be any limitation on compensatory damages that represent the actual loss of
the person who is awarded the damages. However, except in wrongful death actions brought pursuant to
Chapter 2125. of the Revised Code, damages that arise from the same cause of action, transaction or
occurrence, or series of transactions or occurrences and that do not represent the actual loss of the
person who is awarded the damages shall not exceed two hundred fifty thousand dollars in favor of any
one person. The limitation on damages that do not represent the actual loss of the person who is
awarded the damages provided in this division does not apply to court costs that are awarded to a
plaintiff, or to interest on a judgment rendered in favor of a plaintiff, in an action against a state university
or college.” (Emphasis added.)
Case No. 2011-07761                         -7-                                DECISION

         {¶ 14} A party may file written objections to the magistrate’s decision within 14
days of the filing of the decision, whether or not the court has adopted the decision
during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files
objections, any other party may also file objections not later than ten days after the first
objections are filed. A party shall not assign as error on appeal the court’s adoption of
any factual finding or legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely
and specifically objects to that factual finding or legal conclusion within 14 days of the
filing of the decision, as required by Civ.R. 53(D)(3)(b).



                                           _____________________________________
                                           ANDERSON M. RENICK
                                           Magistrate


cc:


Anne B. Strait                                Robert M. Scott
Assistant Attorney General                    416 North Erie Street, Suite 400
150 East Gay Street, 18th Floor               Toledo, Ohio 43604-5622
Columbus, Ohio 43215-3130

004
Filed February 6, 2013
To S.C. Reporter April 16, 2013
