[Cite as Fritch v. Univ. of Toledo College of Medicine, 2011-Ohio-368.]

                                                         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




SHIRLEY A. FRITCH

        Plaintiff

        v.

THE UNIVERSITY OF TOLEDO COLLEGE OF MEDICINE

        Defendant
        Case No. 2008-03564

Judge Joseph T. Clark

DECISION




         {¶ 1} Plaintiff brought this action alleging medical negligence. The issues of
liability and damages were bifurcated and the case proceeded to trial on the issue of
liability.
         {¶ 2} In May 2006, plaintiff first saw Krishna Mallik, M.D., an orthopedic surgeon
employed by defendant, for left shoulder pain that had existed for several years. After
physical therapy did not significantly improve her condition, she was scheduled for
surgery on her left shoulder. On August 23, 2006, Drs. Mallik and Phillip Nowicki, a
resident, performed a hemiarthroplasty procedure during which time a Copeland
prosthesis was placed in plaintiff’s left shoulder joint. Plaintiff asserts that during the
surgery, she sustained an injury to her brachial plexus, which has resulted in permanent
harm, including nerve damage and a “clawed” left hand.


PLAINTIFF
       {¶ 3} Plaintiff testified that she was referred to Dr. Mallik for pain and difficulty of
movement with her left shoulder; that she signed a consent form prior to the surgery;
that when she was in the recovery room her arm was “frozen up”; that a few days after
the procedure she was taken to the Emergency Room at defendant’s hospital for
treatment of her pain; and that during the first follow-up visit after the surgery, she
described her condition to Dr. Mallik as feeling as if she were “paralyzed.”
       {¶ 4} On cross-examination, plaintiff stated that at the time of the surgery she
lived alone but that after the surgery, a health aide came to her house for two hours per
day on week days and helped her put on the sling that had been prescribed. However,
plaintiff stated that on the weekends, she had no one to help her, and she could not put
the sling on by herself.


KRISHNA MALLIK, M.D.
       {¶ 5} Krishna Mallik, M.D., testified that she is currently licensed in Arizona as
an orthopedic surgeon and that when she worked at defendant’s hospital she was also
an assistant professor of medicine. Dr. Mallik stated that she first examined plaintiff on
May 16, 2006, during which time she prescribed physical therapy to increase range of
motion.    However, plaintiff’s pain persisted and a decision was made to perform
surgery. On August 23, 2006, Dr. Mallik, with the assistance of Dr. Nowicki, performed
a humeral head resurfacing, which is a version of a hemiarthroplasty.1 Prior to plaintiff’s
surgery, Dr. Mallik had performed this type of surgery approximately five times per
month for 1.5 years. Dr. Mallik explained that plaintiff was given a left inter-scalene
block of anesthesia prior to surgery, which she described as a method to decrease the
function of the nerves off of the cervical spine in order to reduce overall pain during
surgery.
       {¶ 6} Dr. Mallik testified that she performed the procedure in the “beach chair”
position, where plaintiff was seated upright with her arm secured against her body. Dr.
Mallik explained that in such position, the arm is never placed outward, and no traction


       1
         Plaintiff signed an “informed consent to medical or surgical procedure” on August 10, 2006,
wherein she authorized Dr. Mallik and a resident physician to perform a “left shoulder arthroscopy,
subacromial decompression and rotator cuff repair” and a “possible open hemiarthroplasty.” (Defendant’s
Exhibit A, Page 41.)
is used. Dr. Mallik stated that if something in surgery does not go as planned, her
standard practice is to note it in the operative report; that she did not note anything out
of the ordinary in plaintiff’s operative report; and that she was present in the operating
room for the entire surgical procedure.
        {¶ 7} According to Dr. Mallik, on August 31, 2006, when plaintiff presented for
her post-operative visit, she was not wearing her sling properly. Dr. Mallik testified that
she had prescribed an “ultra sling” for plaintiff to wear postoperatively, and described it
as a pillow that goes around the patient’s waist, with a sling attached to the pillow with
velcro. Dr. Mallik explained that the proper position to wear the sling is with the elbow
resting in the apex or back end of the sling with the sling extending beyond the
fingertips so that the entire upper extremity is protected. The pillow then is positioned
like a belt around the patient’s waist to support the sling and take any pressure off of the
neck.       However, Dr. Mallik noted at the post-operative visit that plaintiff’s arm was
hanging midway out from the sling; that the pillow had been twisted around her body;
that the manner in which plaintiff was wearing the sling was putting pressure
underneath her armpit; and that plaintiff’s arm was in a dependent position, causing
swelling. Dr. Mallik further stated that plaintiff’s improper use of the ultra sling was
putting pressure on her neck, because instead of the pillow acting as the support, the
neck was acting as support. Dr. Mallik delayed removal of the staples from surgery due
to the swelling of plaintiff’s arm. On September 7, 2006, Dr. Mallik saw plaintiff again
and urged her to either move in with a family member or move to an extended care
facility.
        {¶ 8} Dr. Mallik testified that she had been hesitant to perform surgery on
plaintiff because she feared that plaintiff did not have adequate support at home for
post-operative protocol. Dr. Mallik stressed that it was very important that plaintiff not
use her left arm for six weeks after surgery. Dr. Mallik stated that she would not have
agreed to perform the surgery if she had known that plaintiff’s son stayed with her for
only one day after surgery and that the home health aide was there for only two hours
per day and not on the weekends.
       {¶ 9} Dr. Mallik examined plaintiff’s shoulder on a bi-weekly basis for 11 months
after her surgery. Dr. Mallik testified that she was “very concerned” about plaintiff’s
social situation and about her not wearing her sling properly.
       {¶ 10} Dr. Mallik opined that there were two possible causes of plaintiff’s injury:
either not wearing the sling properly or a complication from the inter-scalene block used
in anesthesia. Dr. Mallik could not state which possibility was the more probable cause
of injury.


PHILIP NOWICKI, M.D.
       {¶ 11} Philip Nowicki, M.D., testified that he is licensed to practice medicine in
Ohio; that in 2006 he was a resident; that plaintiff’s surgery was the first time that he
had assisted with a Copeland procedure; that he did not recall anything out of the
ordinary during the procedure; that both he and Dr. Mallik stayed in the operating room
at all times during the procedure; and that it is critical that there not be excessive
traction or stretching of the shoulder during the procedure.


STEVEN FARRELL, M.D.
       {¶ 12} Steven Farrell, M.D., testified that he is board-certified in physical
medicine with a rehabilitation specialty and that he treats patients with neurologic or
musculoskeletal disabilities. Dr. Farrell stated that plaintiff was his patient prior to the
surgery; that she complained to him of shoulder pain; that he ordered an MRI and
referred her to Dr. Mallik for surgery; and that he saw plaintiff for follow-up visits after
the surgery.
       {¶ 13} On October 25, 2006, Dr. Farrell performed an electro diagnostic study, an
EMG and nerve conduction studies of plaintiff’s left arm and shoulder.          Dr. Farrell
diagnosed plaintiff with a severe brachial plexopathy, which involved damage to both
the myelin and the nerve fibers. Dr. Farrell stated that the nerve conduction study
shows that there is a nerve injury, but does not show what caused the injury.
       {¶ 14} Dr. Farrell opined that he could not draw any direct conclusion about the
cause of plaintiff’s brachial plexopathy, but noted that her injury is permanent.       Dr.
Farrell further stated that plaintiff did not suffer from a brachial plexopathy prior to her
surgery.


ANTHONY BRAIDA, M.D.
       {¶ 15} Anthony Braida, M.D., testified that he is licensed to practice medicine in
Ohio, that he holds a specialization in anesthesiology, and that he performed the inter-
scalene block on plaintiff prior to her surgery.     Dr. Braida explained that he used
ultrasound to assist with visualization of the nerves between the anterior scalene and
middle scalene muscles so that the needle could be placed with greater accuracy. Dr.
Braida has performed this procedure routinely since 1995, and he stated that plaintiff
tolerated the procedure well. Dr. Braida testified that in his opinion, the inter-scalene
block was not the cause of plaintiff’s nerve damage. Dr. Braida explained that during
the inter-scalene block, the needle is inserted into a location on the neck where the
trunks of the nerves are situated. If the placement of the needle for the inter-scalene
block were the cause of the nerve damage, Dr. Braida believed that the damage would
have been located higher up in the neck where the needle was inserted. However, the
medical records reveal that the nerve damage occurred distal to the infraspinatus
muscle, beyond the trunks of the nerve. Dr. Braida stated that he could not render an
opinion as to the proximate cause of the brachial plexopathy.


JEROME UNATIN, M.D.
       {¶ 16} Plaintiff’s expert, Jerome Unatin, M.D., testified that he is licensed to
practice medicine in the states of California and Florida; that he has practiced
orthopedic surgery since 1971; that he is board-certified in orthopedic surgery; and that
he has performed hemiarthroplasty procedures.
       {¶ 17} Dr. Unatin stated that the operative report from plaintiff’s surgery, which he
described as “a very good report,” showed that there were no complications during the
surgery. However, subsequent to surgery, plaintiff was diagnosed with a brachial nerve
palsy, which meant that she suffered neurological deficits to her upper extremity. Dr.
Unatin opined that “something happened in surgery” to cause the nerve damage. Dr.
Unatin explained that the nerve damage could have been caused by either some
traction on the nerves during surgery; some bleeding that the surgeons did not see; by
stretching the nerve when they stretched the arm; or from a complication during the
inter-scalene block used during anesthesia. Dr. Unatin opined that the most probable
causes of plaintiff’s injury were either the stretching of the nerve in surgery from
excessive moving of the arm or over-retracting near the nerve.            Dr. Unatin further
opined that either of those two occurrences represent a deviation from the standard of
care.
        {¶ 18} Dr. Unatin admitted that he has never used a Copeland prosthesis in
performing a hemiarthroplasty of a shoulder; that moving the arm and manipulating the
shoulder are required in order to properly place the prosthesis and that the operative
note does not reveal the cause of plaintiff’s injury. However, in Dr. Unatin’s opinion, it is
highly unlikely that plaintiff’s injury occurred subsequent to surgery absent some
“traumatic” occurrence.


DR. ROBERT GOITZ, M.D.
        {¶ 19} Defendant’s expert, Robert Goitz, M.D., testified that he is an associate
professor in the department of orthopedic surgery and the chief of hand and upper
extremity surgery at the University of Pittsburgh Medical Center; that he is board-
certified in orthopedic surgery; that 20 to 30 percent of his practice is shoulder surgery;
that he is a specialist in nerve surgery involving the upper extremity; and that a large
part of his practice deals with brachial plexus injury.
        {¶ 20} Dr. Goitz explained that a Copeland hemiarthroplasty is the replacement
of the cup side of the ball and socket of the shoulder and that nerve injury and
dysfunction are known risks of such surgery. Dr. Goitz testified that unless there is an
identified cut to the nerve, it is usually supposition to find the cause of nerve
dysfunction.
        {¶ 21} Dr. Goitz opined that there are many different potential causes of plaintiff’s
brachial plexopathy, but that there is no evidence of a severing of the nerves. Dr. Goitz
identified two potential causes of plaintiff’s nerve injury. First, a stretch injury, which he
explained is always a potential cause of nerve dysfunction after extremity surgery.
Second, brachial neuritis, which he defined as nerve dysfunction caused by the stress
of surgery itself. Dr. Goitz identified plaintiff’s risk factors as the surgery itself; her age;
her weight; and her limited range of motion. Dr. Goitz also stated that plaintiff’s post-
operative course, including not wearing her sling properly and not having constant in-
home care, could have resulted in nerve injury.          Dr. Goitz further testified that the
contracture or “clawing” of plaintiff’s left hand was not the result of a nerve injury itself;
rather it was a result of “disuse” or neglect or limiting the motion of her arm subsequent
to the surgery. Although Dr. Goitz could not render an opinion as to the cause of
plaintiff’s injury, he did opine that he saw no evidence that either Dr. Mallik or Dr.
Nowicki violated the standard of care. Dr. Goitz conceded that plaintiff did not suffer
from a brachial plexus injury prior to her surgery.


LAW
       {¶ 22} “In order to establish medical malpractice, 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
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, paragraph
1 of the syllabus.
       {¶ 23} “[E]xpert opinion regarding a causative event, including alternative causes,
must be expressed in terms of probability irrespective of whether the proponent of the
evidence bears the burden of persuasion with respect to the issue.” Stinson v. England,
69 Ohio St.3d 451, 1994-Ohio-35, paragraph one of the syllabus.


FINDINGS
       {¶ 24} Upon review of all the evidence, the court finds that plaintiff has failed to
prove that acts or omissions by Drs. Mallik or Nowicki proximately caused her brachial
plexopathy. Dr. Unatin’s testimony that the most probable cause of plaintiff’s injury was
either stretching the nerves in surgery or over-retracting is not supported by the weight
of the evidence. For example, Dr. Mallik testified that the procedure was performed in
the “beach chair” position to ensure that no excessive traction was used with regard to
plaintiff’s arm.   Moreover, the court finds that the testimony of Dr. Goitz was more
persuasive than the testimony of Dr. Unatin. The court finds that there were multiple
possible causes of plaintiff’s injury, including something that happened during surgery,
the surgery itself, a complication from the inter-scalene block, or plaintiff’s failure to
wear the ultra sling properly. The court finds that plaintiff has failed to prove by a
preponderance of the evidence that the failure to perform the surgical procedure in
accordance with the standard of care was the proximate cause of plaintiff’s injury.


RES IPSA LOQUITUR
       {¶ 25} Plaintiff argues that the doctrine of res ipsa loquitur should be applied in
this case; however, the court does not agree. The doctrine of res ipsa loquitur is a rule
of evidence which allows the trier of fact to draw an inference of negligence from the
facts presented. Morgan v. Children’s Hospital (1985), 18 Ohio St.3d 185, 187. The
two prerequisites which must be met to warrant the application of the rule are: “1) that
the instrumentality causing the injury was, at the time of the injury, or at the time of the
creation of the condition causing the injury, under the exclusive management and
control of the defendant; and 2) that the injury occurred under such circumstances that
in the ordinary course of events it would not have occurred if ordinary care had been
observed.” Morgan, supra, quoting Hake v. Wiedemann Brewing Co. (1970), 23 Ohio
St.2d 65, 66-67.
       {¶ 26} Dr. Goitz testified that he could not render an opinion to a reasonable
degree of medical probability as to the proximate cause of plaintiff’s injury. However,
one possible cause of injury that he recognized was plaintiff’s failure to wear the ultra
sling properly.    Moreover, Dr. Goitz testified that nerve injury is a known risk of a
hemiarthroplasty. Therefore, the court finds that neither prerequisite for the doctrine of
res ipsa loquitur has been met.
       {¶ 27} For the foregoing reasons, the court finds that plaintiff has failed to prove
her claims of medical negligence by a preponderance of the evidence and, accordingly,
judgment shall be rendered in favor of defendant.
                                             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




SHIRLEY A. FRITCH

      Plaintiff

      v.

THE UNIVERSITY OF TOLEDO COLLEGE OF MEDICINE

      Defendant
      Case No. 2008-03564

Judge Joseph T. Clark

JUDGMENT ENTRY




      This case was tried to the court on the issue of liability.           The court has
considered the evidence and, for the reasons set forth in the decision filed concurrently
herewith, 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.




                                         _____________________________________
                                         JOSEPH T. CLARK
                                         Judge

cc:
Alan L. Mollenkamp                     Anne B. Strait
411 North Michigan Street, Suite 300   Naomi H. Maletz
Toledo, Ohio 43604                     Assistant Attorneys General
                                       150 East Gay Street, 18th Floor
                                       Columbus, Ohio 43215-3130

HTS/cmd
Filed January 11, 2011
To S.C. reporter January 27, 2011
