[Cite as Melvin v. Ohio State Univ. Med. Ctr., 2010-Ohio-3226.]

                                                        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




MICHELE A. MELVIN, Admr.

       Plaintiff

       v.

THE OHIO STATE UNIVERSITY MEDICAL CENTER

       Defendant
       Case No. 2007-09135

Judge Joseph T. Clark
Magistrate Anderson M. Renick

MAGISTRATE DECISION




        {¶ 1} Pursuant to Civ.R. 53, Magistrate Anderson M. Renick was appointed to
conduct all proceedings necessary for decision in this matter.
        {¶ 2} Plaintiff brought this action on behalf of the estate of the decedent, Joseph
W. Wilson, alleging wrongful death. Plaintiff asserts that Wilson died as a result of
peritonitis on December 26, 2006, several days after undergoing a surgical procedure to
remove a polyp and the portion of the colon to which it was attached. According to
plaintiff, the peritonitis resulted from a dehiscence, or separation, of the surgical suture
which attached the small intestine to the colon, thus allowing fecal matter to leak into
the abdominal cavity. The issues of liability and damages were bifurcated and the case
proceeded to trial on the issue of liability.
        {¶ 3} In the fall of 2006, Wilson’s personal physician performed a colonoscopy
and discovered a large, potentially cancerous polyp in Wilson’s colon. Due to its size,
the polyp could not be removed via colonoscopy and Wilson was therefore referred to
Case No. 2007-09135                        -2-                  MAGISTRATE DECISION

defendant for a surgical evaluation. On November 6, 2006, plaintiff met with Mark
Arnold, M.D., a colorectal surgeon employed by defendant.
       {¶ 4} Dr. Arnold testified that based upon his evaluation of Wilson, he
determined that the polyp required prompt surgical removal inasmuch as its continued
growth would ultimately block Wilson’s colon. Dr. Arnold stated that although this type
of procedure is fairly common and generally carries a low degree of risk, performing it
on Wilson presented unique challenges due to the fact that he was a “medically fragile”
individual with a host of complicating factors that included congestive heart failure, a
prior heart attack, pacemaker dependency, anemia, a prior stroke, diabetes, and poor
renal function.
       {¶ 5} On December 10, 2006, defendant admitted Wilson for the operation,
which was scheduled for the following day.           According to Dr. Arnold, patients
undergoing an operation of this type are generally admitted during the morning of the
procedure, but he arranged for Wilson to arrive earlier so that he could be evaluated
and cleared for surgery by a cardiologist. Wilson’s cardiology evaluation took longer
than anticipated, though, and the operation was therefore rescheduled for December
13, 2006.
       {¶ 6} Dr. Arnold testified that in order to minimize the stress on Wilson’s heart,
he elected to perform a minimally-invasive laparoscopic procedure rather than creating
an open incision in Wilson’s abdomen. Dr. Arnold described the operation as follows:
cameras were inserted into the abdominal cavity through small incisions near the navel;
ascites (fluid in the abdominal cavity) was discovered and suctioned away through a
slightly larger incision also near the navel; the colon was freed and pulled from the body
through the larger incision; the polyp and attached section of the colon were removed;
the remaining portion of the colon was sutured to the intestine and placed back inside
the abdominal cavity; and, lastly, the incisions were closed.
Case No. 2007-09135                        -3-                 MAGISTRATE DECISION

       {¶ 7} Dr. Arnold stated that aside from the large amount of ascites that was
discovered in Wilson’s abdominal cavity, the operation proceeded as expected and
without any complication. According to Dr. Arnold, the ascites was a product of liver
failure, which he attributed to the weakened ability of Wilson’s heart to deliver oxygen to
his liver and other organs.
       {¶ 8} Plaintiff, who is Wilson’s daughter, testified that Wilson was in good spirits
following the operation and that she remained with him through the night. Plaintiff and
Alisa Hilderhoff, another daughter of Wilson, testified that during the day after the
operation, Wilson’s lower body appeared swollen and he complained of generalized
pain. Plaintiff and Hilderhoff stated that Wilson endured a slow and difficult recovery
over the next several days and that, although he remained alert and showed some
signs of recovery such as regaining his appetite, they grew concerned over his
continued swelling and his inability to stand or ambulate to the bathroom on his own.
       {¶ 9} Hilderhoff also testified that while she was in Wilson’s room on December
22, 2006, she observed two nurses “drop” Wilson while attempting to lift him from the
commode, whereupon he fell to the floor and defecated. According to Hilderhoff, seven
to nine employees spent the next two hours attending to Wilson and cleaning the
bathroom.
       {¶ 10} Dr. Arnold testified that he was not aware of any such incident and that it
was not recorded in Wilson’s chart or otherwise documented. Dr. Arnold also stated
that Wilson’s chart does not show any correlative change in his condition after the
purported incident. Additionally, plaintiff testified that a set of notes that she and other
family members kept to document Wilson’s post-operative care contain no reference to
such an incident.
       {¶ 11} Dr. Arnold agreed with plaintiff’s and Hilderhoff’s assessment that Wilson
had difficulty recovering from the operation, but he stated that this was to be expected in
light of Wilson’s congestive heart failure. According to Dr. Arnold, Wilson’s weak heart
function hindered his body’s recovery mechanisms and caused such problems as poor
Case No. 2007-09135                        -4-                MAGISTRATE DECISION

renal function, swelling in the lower body, and occasional breathing difficulty. Dr. Arnold
stated that because of the complexities presented by Wilson’s heart problems, he
arranged for cardiologists to regularly monitor Wilson throughout his post-operative
care. Dr. Arnold further stated that at no time did Wilson present a “clinical picture”
consistent with peritonitis.
       {¶ 12} Dr. Arnold defined peritonitis as an infection of the lining of the abdominal
cavity, which, if untreated, may spread to the bloodstream and result in sepsis.
According to Dr. Arnold, symptoms of peritonitis generally include fever, tachycardia,
tachypnea (rapid breathing), abdominal pain and tenderness, lack of bowel function,
nausea, loss of appetite, an elevated white blood cell count, mental status changes, and
malaise.   Dr. Arnold stated that Wilson exhibited few of these symptoms and that,
notably, he lacked key symptoms that are present in nearly every case of peritonitis,
such as fever, nausea, and lack of bowel function.
       {¶ 13} Dr. Arnold acknowledged that some abdominal tenderness was noted in
Wilson’s chart at times and that he had an elevated white blood cell count through the
time of his discharge, but he stated that such symptoms were common side effects of
the operation. Dr. Arnold explained that in order to prevent infection, the body normally
produces additional white blood cells in response to surgical procedures, and because
Wilson was slow to recover from the operation, his white blood cell count remained
elevated for a longer period of time than it would have in a healthier patient. Dr. Arnold
emphasized that Wilson’s white blood cell count nonetheless remained stable, whereas
in a patient with peritonitis, the white blood cell count typically “spikes” dramatically
upward.
       {¶ 14} Dr. Arnold testified that although Wilson’s recovery was hindered by his
congestive heart failure, he nonetheless reached a stable condition several days after
the procedure, particularly once he regained his bowel function and appetite and his
renal function returned to a level consistent with its pre-operative function. Dr. Arnold
Case No. 2007-09135                         -5-                 MAGISTRATE DECISION

stated that in light of these improvements, he determined that Wilson could be
discharged to a nursing facility closer to his home.
       {¶ 15} On December 24, 2006, Wilson was discharged to the Heartland of Piqua
nursing home in Piqua, Ohio.       Plaintiff and Hilderhoff stated that when they visited
Wilson at the nursing home that evening, they did not notice any significant changes in
his condition.   However, on the evening of December 25, 2006, Wilson suddenly
complained of abdominal pain and was consequently transported to the Upper Valley
Medical Center (UVMC) in Troy, Ohio. At 10:00 p.m. that evening, Wilson was admitted
to UVMC where he was seen in the emergency room by Dr. Gregory K. Rodgers.
       {¶ 16} Dr. Rodgers testified via deposition that Wilson was alert and conversant
upon entering the emergency room and that he was able to discuss his medical history
and present condition. Dr. Rodgers testified that Wilson chiefly complained of breathing
difficulty and abdominal pain.     According to Dr. Rodgers, he was able to improve
Wilson’s breathing by having him sit upright in bed, and he explained that such an
improvement was an indication that Wilson’s breathing difficulty was owed to his
congestive heart failure.
       {¶ 17} Dr. Rodgers testified that in consideration of both Wilson’s abdominal pain
and his recent operation, he also specifically evaluated Wilson for symptoms of
peritonitis, including taking an x-ray of Wilson’s abdomen. Dr. Rodgers’ examination
revealed that Wilson did not exhibit symptoms consistent with peritonitis inasmuch as
the x-ray revealed no free air in the abdominal cavity, he did not have a fever, his
abdomen was neither tender nor rigid, he had “bowel sounds” indicative of a functioning
bowel, and he reported having a bowel movement earlier in the day. Based upon such
findings, Dr. Rodgers noted in Wilson’s chart that “[t]here is no peritonitis.” (Joint Exhibit
C.)
       {¶ 18} Dr. Rodgers stated that at approximately 2:30 a.m., as he continued to
evaluate and converse with Wilson, Wilson’s breathing grew labored, his heart rhythm
became abnormal, and he soon became unresponsive and suffered cardiac arrest.
Case No. 2007-09135                            -6-                  MAGISTRATE DECISION

According to Dr. Rodgers, emergency room staff attempted to revive Wilson with
cardiopulmonary resuscitation and drugs such as epinephrine, but those efforts proved
unsuccessful and Wilson was pronounced dead at 2:50 a.m. on December 26, 2006. In
Wilson’s chart, Dr. Rodgers concluded that the cause of death was unclear, but that “by
all measures [Wilson] showed no evidence” of sepsis. (Joint Exhibit C.)
         {¶ 19} Dr. Rodgers related that the Miami County Coroner elected to perform an
autopsy of Wilson.       The autopsy was performed on December 27, 2006, by Lee
Lehman, M.D., the Chief Deputy Coroner for the Montgomery County Coroner’s office.
Dr. Lehman testified via deposition that Miami County contracts with his office in lieu of
performing its own autopsies. According to the autopsy report prepared by Dr. Lehman,
the autopsy revealed a 2-3 millimeter dehiscence which was “oozing” fecal material at
the site where Wilson’s intestine and colon were sutured during the operation. Based
upon that finding, as well as the presence of “purulent exudate” and “purulent ascites” in
the abdominal cavity, Dr. Lehman concluded in his report that the cause of Wilson’s
death was “acute peritonitis due to surgical wound dehiscence.”1 (Joint Exhibit D.)
         {¶ 20} Plaintiff alleges that defendant was negligent in failing “to properly
diagnose and/or treat the developing acute peritonitis from which [Wilson] suffered and
died.”       Defendant contends that Wilson’s care and treatment at all times met the
applicable standard of care and, moreover, that Wilson died of heart failure rather than
peritonitis.
         {¶ 21} “In order to establish medical [negligence], it must be shown by a
preponderance of the evidence that the injury complained of was caused by the doing of
some particular thing or things that a physician or surgeon of ordinary skill, care and
diligence would not have done under like or similar conditions or circumstances, or by

         1
         The court notes that although R.C. 313.19 provides that the cause of death assigned by the
coroner shall be “the legally accepted cause of death,” the Supreme Court of Ohio has held that the
coroner’s findings are non-binding and may be rebutted by competent, credible evidence. See Vargo v.
Travelers Inc. Co. (1987), 34 Ohio St.3d 27, paragraph one of the syllabus.
Case No. 2007-09135                        -7-                MAGISTRATE DECISION

the failure or omission to do some particular thing or things that such a physician or
surgeon would have done under like or similar conditions and circumstances, and that
the injury complained of was the direct result of such doing or failing to do some one or
more of such particular things.” Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 131.
      {¶ 22} “To maintain a wrongful death action on a theory of medical negligence, a
plaintiff must show (1) the existence of a duty owing to plaintiff's decedent, (2) a breach
of that duty, and (3) proximate causation between the breach of duty and the death.”
Littleton v. Good Samaritan Hosp. & Health Ctr. (1988), 39 Ohio St.3d 86, 92, citing
Bennison v. Stillpass Transit Co. (1966), 5 Ohio St.2d 122, paragraph one of the
syllabus.
      {¶ 23} Defendant’s pathology expert, Vincent J. M. Di Maio, M.D., testified by
deposition based upon his review of medical records that included the autopsy report,
photographs and slides, and Dr. Lehman’s deposition. Dr. Di Maio, whose testimony
pertained to the cause of Wilson’s death rather than the issue of liability, is board
certified in anatomical, clinical, and forensic pathology, and he served as the Chief
Medical Examiner for Bexar County, Texas from 1981 to 2006.
      {¶ 24} According to Dr. Di Maio, when an individual contracts peritonitis, the
contents of the abdominal cavity quickly become coated in a purulent exudate, which he
characterized as a “yellow, sticky pus” containing white blood cells that the body
produces in order to counteract the infection. Dr. Di Maio testified that given the nature
of the dehiscence that was found in the autopsy, a purulent exudate should have
developed within two to three hours after it occurred. Dr. Di Maio stated, however, that
while the autopsy report notes the presence of purulent exudate, the autopsy
photographs of Wilson’s abdominal cavity do not show such matter.
      {¶ 25} Dr. Lehman acknowledged in his deposition that the photographs indeed
do not depict purulent exudate, but he explained that the photographs were taken after
he had rinsed the abdominal contents with water, thereby removing the purulent
Case No. 2007-09135                        -8-                 MAGISTRATE DECISION

exudate. According to Dr. Di Maio, however, purulent exudate is adherent such that it
could not have been rinsed from the abdominal contents in that manner.
       {¶ 26} Dr. Di Maio stated that in addition to purulent exudate, other signs of
peritonitis include inflammation at the area of the peritoneal leak and dark ascites. But,
according to Dr. Di Maio, the autopsy photographs do not depict any inflammation near
the site of the dehiscence. Dr. Di Maio further stated that although dark ascites was
documented in the autopsy report, that was not necessarily an indication of peritonitis
inasmuch as ascites is commonly found in individuals with congestive heart failure and
the dark coloration may have resulted from blood that dried in Wilson’s abdomen after
his operation. Dr. Di Maio opined that aside from the dehiscence itself, “[t]here is no
evidence at all of peritonitis.”
       {¶ 27} According to Dr. Di Maio, based upon the evidence of heart disease that
was documented in the autopsy report, such as severe hardening of the arteries and an
enlarged heart, Wilson more likely than not died of congestive heart failure. Dr. Di Maio
further opined that Wilson’s surgical dehiscence could not have developed more than
two to three hours before his death and that it may have developed as a result of the
administration of cardiopulmonary resuscitation at UVMC inasmuch as vigorous
resuscitation efforts are capable of damaging intestinal sutures.
       {¶ 28} With regard to the treatment that Wilson received while in defendant’s
care, both parties offered expert testimony. Plaintiff’s expert, Steven Becker, M.D., who
is a board-certified general surgeon, testified that surgical dehiscence and peritonitis are
well-known risks associated with the type of operation that Wilson underwent and that
the symptoms of peritonitis include fever, rebound tenderness in the abdomen,
tachycardia, an elevated respiratory rate, an elevated white blood cell count, lack of
bowel function, free air in the abdomen, and organ failure.
       {¶ 29} Dr. Becker stated that although Wilson demonstrated few, if any,
symptoms of peritonitis in the first two days after his operation, a rise in his white blood
Case No. 2007-09135                         -9-                MAGISTRATE DECISION

cell count on December 16, 2006, suggests that the dehiscence and resulting peritonitis
may have begun on or about that date. Dr. Becker stated that Dr. Arnold should have
recognized the continued elevation of the white blood cell count, as well as Wilson’s
poor heart and kidney function, as signs of peritonitis that required further investigation
by means of a CT scan or a barium enema.              On cross-examination, Dr. Becker
acknowledged that Wilson did not exhibit some of the most typical symptoms of
peritonitis such as lack of bowel function, rebound tenderness in the abdomen, or free
air in the abdomen, but he stated that Wilson nonetheless exhibited other symptoms
such that further diagnostic testing should have been performed to detect a peritoneal
infection, and he opined that Dr. Arnold’s failure to do so fell below the standard of care.
       {¶ 30} Defendant’s expert, Olaf B. Johansen, M.D., a board-certified general and
colorectal surgeon, testified by deposition that peritonitis is a risk associated with
procedures such as the one that Wilson underwent, occurring approximately five
percent of the time. Dr. Johansen related that symptoms of peritonitis include fever,
pain, nausea, tachycardia, widening of pulse pressure, persistent tachypnea, a rigid and
tender abdomen, accumulation of air in the abdomen, renal dysfunction, lack of bowel
function, a progressively elevating white blood cell count, and changes in mental status.
       {¶ 31} Dr. Johansen testified that according to the post-operative medical records
generated by defendant, Heartland of Piqua, and UVMC, Wilson did not exhibit
tachycardia or tachypnea, his renal function was consistent with its preoperative
condition, numerous entries in his chart reflect that his abdomen was not tender and
that he complained of very little pain, he ate consistently, he had regular bowel
movements, x-rays taken four or five days before he was discharged by defendant
showed no free air in the abdomen, x-rays taken at UVMC just hours before his death
showed no free air in the abdomen, and his mental status remained consistently alert.
Dr. Johansen further testified that although Wilson had a fever immediately following the
operation, it was attributable to the stress of the operation and soon dissipated.
Case No. 2007-09135                       - 10 -              MAGISTRATE DECISION

      {¶ 32} Dr. Johansen similarly stated that while Wilson’s white blood cell count
was elevated after the operation, that is normal for an individual in a medically fragile
condition such as Wilson. Dr. Johansen explained that the body normally produces
more white blood cells immediately after a surgical operation in order to prevent
infection, and because medically fragile patients such as Wilson are slower to recover
from the operation, the white blood cell count remains elevated for a longer period of
time. Dr. Johansen explained that Wilson’s white blood cell count was not symptomatic
of peritonitis because it remained relatively stable at all times following the operation
and reached a peak value of only about 16.3, whereas it would have “spiked” upward to
a level well above 20 if Wilson had contracted peritonitis. Dr. Johansen emphasized
that peritonitis generally results in bacteria entering the bloodstream, but that two blood
cultures taken at UVMC shortly before Wilson’s death revealed no such bacteria in his
bloodstream.
      {¶ 33} Thus, according to Dr. Johansen, Wilson did not present symptoms
consistent with peritonitis at any time following the operation. Dr. Johansen opined that
Dr. Arnold made the appropriate evaluations for detecting peritonitis and at all times met
the applicable standard of care. Moreover, Dr. Johansen testified that the photographs
taken during Wilson’s autopsy are not consistent with peritonitis inasmuch as the
surfaces of the abdominal cavity did not appear to be lined with the purulent exudate
that develops soon after the onset of peritonitis. Dr. Johansen further testified that the
photographs also did not show inflammation of the tissue surrounding the dehiscence,
which generally occurs in cases of peritonitis.     Dr. Johansen thus opined that the
dehiscence “could not have been going on for any length of time” and may have
occurred post-mortem.
      {¶ 34} Defendant also presented the expert testimony of Alessandro Fichera,
M.D., a board-certified general and colorectal surgeon.         Dr. Fichera testified by
deposition that the symptoms of peritonitis include fever, pain, nausea, tachycardia,
Case No. 2007-09135                        - 11 -              MAGISTRATE DECISION

tachypnea, abdominal distension, rebound tenderness in the abdomen, reduced oxygen
saturation, an elevated white blood cell count, lack of bowel function, and changes in
mental status.
       {¶ 35} According to Dr. Fichera, these symptoms would have manifested very
quickly if the dehiscence occurred prior to Wilson’s death, but he stated that Wilson’s
medical records do not demonstrate such symptoms. Dr. Fichera noted in particular
that on December 23, 2006, one day before Wilson was discharged to Heartland of
Piqua, he did not have a fever, he did not have tachycardia, his respiratory rate was
normal, his oxygen saturation was normal, he was alert and oriented, and he had been
consistently eating and having bowel movements for several days. Dr. Fichera testified
that according to the records from UVMC, just hours before his death, Wilson’s vital
signs were normal and it was specifically noted that his abdomen was not tender and
that he had bowel sounds. According to Dr. Fichera, peritoneal infections generally
result in bacterial infections in the bloodstream, but two blood cultures taken at UVMC
shortly before Wilson expired did not show any such bacteria.
       {¶ 36} Dr. Fichera stated that although Wilson’s white blood cell count remained
consistently elevated postoperatively, white blood cell counts typically elevate in
response to the stress of surgical procedures. Dr. Fichera explained that Wilson’s white
blood cell count remained elevated for a longer period than that which most patients
experience due to Wilson’s diminished capacity for coping with the stress of the
operation, which Dr. Fichera attributed to congestive heart failure.
       {¶ 37} Dr. Fichera testified that based upon the lack of symptoms exhibited by
Wilson, and given that a medically fragile patient generally displays immediate and
obvious symptoms of peritonitis upon contracting it, the dehiscence that was discovered
during the autopsy probably did not develop while Wilson was in defendant’s care, and
may have occurred during either the resuscitation efforts or the autopsy. Dr. Fichera
testified that Wilson’s myriad of health problems added a great deal of complication and
risk to his treatment, which exceeded the typical expertise of a colorectal surgeon, and
Case No. 2007-09135                       - 12 -              MAGISTRATE DECISION

he opined that Dr. Arnold therefore properly consulted with the appropriate cardiologists
and other specialists to evaluate Wilson and manage his care. Dr. Fichera further
opined that Dr. Arnold met the standard of care at all times in his treatment of Wilson.
       {¶ 38} Upon review of the evidence adduced at trial, the court finds that the
treatment of Wilson as provided by Dr. Arnold and defendant’s other medical
professionals at all times met the accepted standard of care. Specifically, the court
finds that Dr. Arnold appropriately determined that Wilson did not exhibit the clinical
symptoms of peritonitis following the December 13, 2006 surgical procedure, and that
Wilson was properly discharged to Heartland of Piqua on December 23, 2006.
       {¶ 39} The experts for each party, as well as Dr. Arnold, described the symptoms
of peritonitis similarly.   As to whether Wilson exhibited such symptoms while in
defendant’s care, the court finds the testimony of Drs. Fichera and Johansen to be more
persuasive than the opinion offered by Dr. Becker.        Dr. Becker acknowledged that
Wilson lacked some of the more telling symptoms of peritonitis, but he cited Wilson’s
white blood cell count as a strong indication of peritonitis which should have prompted
further investigation by Dr. Arnold. However, Drs. Fichera and Johansen persuasively
testified that the white blood cell count remained within a normal postoperative level for
an individual with Wilson’s frailties and that, indeed, Wilson did not exhibit symptoms
consistent with peritonitis while in defendant’s care.       Furthermore, although it is
undisputed that Wilson had difficulty recovering from the operation, the testimony of
Drs. Fichera and Johansen demonstrated that such difficulty resulted from Wilson’s
congestive heart failure and that, by December 23, 2006, he had recovered and
stabilized such that his discharge to Heartland of Piqua on that date was appropriate.
       {¶ 40} Based upon the totality of the evidence, the court finds that plaintiff has
failed to prove her claim by a preponderance of the evidence.           Accordingly, it is
recommended that judgment be rendered in favor of defendant.
Case No. 2007-09135                         - 13 -              MAGISTRATE DECISION

          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:


Daniel R. Forsythe                             John E. Fulker
Karl W. Schedler                               William J. Fulker
Assistant Attorneys General                    12 South Cherry Street
150 East Gay Street, 18th Floor                P.O. Box 8
Columbus, Ohio 43215-3130                      Troy, Ohio 45373

RCV/cmd
Filed June 11, 2010
To S.C. reporter July 7, 2010
