[Cite as Mehaffey v. Ohio State Univ. College of Medicine, 2012-Ohio-6356.]




                                                        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



ELIZABETH K. MEHAFFEY, Admx., etc., et al.

       Plaintiffs

       v.

THE OHIO STATE UNIVERSITY COLLEGE OF MEDICINE

       Defendant

Case No. 2010-01123

Judge Clark B. Weaver Sr.

DECISION

        {¶ 1} Plaintiffs brought this action against defendant, The Ohio State University
College of Medicine (OSU), alleging negligence, wrongful death, and loss of consortium
based upon medical treatment provided to plaintiffs’ decedent, John Mehaffey.1 The
issue for trial was limited to whether defendant breached the standard of care with
respect to the medical treatment it provided to plaintiffs’ decedent and the case
proceeded to trial.2
        {¶ 2} In 1999, John received a living donor kidney transplant; however, by 2008,
John’s serum creatinine values, a measure of kidney function, were steadily rising. On
or about May 2, 2008, Jon Von Visger, M.D., a nephrologist at OSU, scheduled a renal
biopsy to determine the reasons for John’s decreased kidney function.
        {¶ 3} On May 5, 2008, John and Elizabeth Mehaffey arrived at OSU for the
scheduled procedure. They met with a member of the nursing staff and provided the
staff member with an updated list of John’s medications. Included in the list was a

        1
         Plaintiffs’ decedent shall be referred to as “John” throughout this decision.
Case No. 2010-01123                              -2-                                           ENTRY

medication called Plavix, a platelet inhibitor, which binds to the receptors of the platelet
preventing clotting of the blood.         Elizabeth testified that John had been prescribed
Plavix since he suffered a stroke in 2006.
       {¶ 4} As the attending physician, Dr. Von Visger met with John prior to the
procedure and discussed the risks associated with a renal biopsy. According to Dr. Von
Visger, such risks include bleeding and death. Dr. Von Visger admitted that he was
unaware that John had taken Plavix the day prior to the surgery despite its inclusion in
John’s list of medications. (Plaintiff’s Exhibit 3.) Dr. Von Visger further admitted that the
standard of care requires that the attending physician know what medications a patient
who is scheduled for a renal biopsy is taking.
       {¶ 5} Dr. Von Visger classified John’s renal biopsy as “urgent” rather than
“emergent.” Accordingly, Dr. Von Visger testified that had he known that John was
taking Plavix, he would have advised John of the increased risks of the procedure and
recommended that he proceed that same day. Dr. Von Visger asserted that he would
not have wanted to delay the biopsy more than a few days; however, he admitted that
John could have rescheduled the biopsy for a later date.
       {¶ 6} Jerry Chelleni, D.O., a nephrology fellow at OSU, testified that he also met
with John to obtain his consent for the renal biopsy prior to the procedure. Dr. Chelleni
likewise admitted that he was unaware that John had taken Plavix the day prior to the
surgery and that the standard of care requires that the physician know what medications
the patient is taking prior to performing a renal biopsy.
       {¶ 7} As a part of Dr. Chelleni’s fellowship, he assisted Dr. Von Visger in
performing John’s ultrasound-guided renal biopsy.                Dr. Chelleni stated that a renal
biopsy on a transplant kidney, such as John’s, is less complex then a biopsy on a native
kidney; however, the risk of striking a vein in the kidney remains unchanged. The


       2
       Plaintiffs’ September 14, 2012 motion for leave to file a reply brief is GRANTED, instanter.
Case No. 2010-01123                             -3-                                          ENTRY

procedure is performed by using ultrasound to locate the kidney. A biopsy needle is
then inserted into the cortex of the kidney to obtain a specimen. Ultimately, the biopsy
needle struck a vein and John suffered significant bleeding during the procedure,
subsequently succumbing to his injuries.3
       {¶ 8} Plaintiffs allege that OSU’s medical staff deviated from the accepted
standard of care in that the medical staff was unaware that John had taken Plavix the
day prior to the surgery.
       {¶ 9} “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, 46 Ohio St.2d 127 (1976), paragraph
one of the syllabus.
       {¶ 10} “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., 39 Ohio St.3d 86, 92 (1988), citing
Bennison v. Stillpass Transit Co., 5 Ohio St.2d 122 (1966), paragraph one of the
syllabus.
       {¶ 11} Defendant’s expert, Eric Brown, M.D., a nephrologist who is board-certified
in both internal medicine and nephrology, testified that the most common risk of an
ultrasound-guided renal biopsy is bleeding. Dr. Brown admitted that the standard of


       3
       Neither Dr. Von Visger nor Dr. Chelleni recall who held the biopsy needle during the procedure.
Case No. 2010-01123                          -4-                                   ENTRY

care required that the attending physician know that a patient had taken Plavix the day
prior to the procedure. Dr. Brown further asserted that a nephrologist is required to
know all the medications that a patient is taking prior to performing a renal biopsy. Dr.
Brown opined that the standard of care required that the physician either have a
discussion with the patient about the increased risks associated with performing a renal
biopsy while the patient is on Plavix or postpone the procedure until the effects of Plavix
have worn off.
       {¶ 12} Dr. Brown testified that he would prefer a patient stop taking Plavix ten
days prior to a biopsy. Dr. Brown admitted, however, that John’s renal biopsy did not
have to be performed on May 5, 2008, and that there was a range of days in which the
renal biopsy could be performed. Dr. Brown further admitted that the standard of care
requires that the nephrologist contact the prescribing physician to determine whether it
is safe to take the patient off Plavix for the renal biopsy.
       {¶ 13} Plaintiff’s expert, Robert Toto, M.D., a professor of internal medicine,
board-certified in internal medicine and nephrology, testified that the standard of care
requires that the nephrologist performing a renal biopsy review the medications the
patient is taking. Dr. Toto opined that Dr. Chellini and Dr. Von Visger failed to meet the
standard of care by not knowing that John had taken Plavix the day prior to the
procedure. However, Dr. Toto admitted that it is not a breach of the standard of care to
cause bleeding during the biopsy or to perform a biopsy while a patient is on Plavix.
According to Dr. Toto, if a patient is on Plavix, the nephrologist is required to discuss the
increased risk of bleeding during the procedure with the patient. Dr. Toto further opined
that the standard of care requires that the nephrologist contact the prescribing physician
to determine whether it is safe for the patient to stop taking Plavix. According to Dr.
Toto, John’s renal biopsy was an elective procedure that could have been postponed.
Case No. 2010-01123                          -5-                                     ENTRY

        {¶ 14} Defendant argues that plaintiffs’ medical claim is, in reality, a claim for lack
of informed consent, and inasmuch as plaintiffs failed to plead lack of informed consent,
they are not entitled to judgment in their favor.
        {¶ 15} A medical claim premised upon the lack of informed consent requires proof
that:
        {¶ 16} “(a) The physician fails to disclose to the patient and discuss the material
risks and dangers inherently and potentially involved with respect to the proposed
therapy, if any;
        {¶ 17} “(b) the unrevealed risks and dangers which should have been disclosed
by the physician actually materialize and are the proximate cause of the injury to the
patient; and
        {¶ 18} “(c) a reasonable person in the position of the patient would have decided
against the therapy had the material risks and dangers inherent and incidental to
treatment been disclosed to him or her prior to the therapy.” Nickell v. Gonzalez, 17
Ohio St.3d 136 (1985), syllabus.
        {¶ 19} The court finds that plaintiffs’ claim is not a claim for lack of informed
consent. Had Dr. Chellini or Dr. Von Visger been aware that John had taken Plavix the
day prior to the procedure and failed to disclose the associated increased risks of the
procedure, then plaintiffs would have a claim for lack of informed consent. However, it
is not disputed that neither Dr. Von Visger nor Dr. Chellini knew that John had taken
Plavix the day prior to the procedure. Moreover, it is not disputed that the standard of
care requires that the nephrologist know what medications the patient is taking prior to
performing a renal biopsy. Furthermore, the court finds that John’s renal biopsy was not
an “emergent” procedure. Indeed, defendant’s expert acknowledged that John could
have rescheduled the biopsy for another day.
        {¶ 20} Additionally, the court finds that the standard of care requires the physician
to contact the prescribing physician to determine whether it is safe for the patient to be
Case No. 2010-01123                       -6-                                  ENTRY

off Plavix. Finally, the court finds that the standard of care requires the physician to
have a discussion with the patient of the increased risks of the procedure while on
Plavix or to postpone the procedure. The court finds that neither Dr. Von Visger nor Dr.
Chellini met the standard of care. Neither Dr. Von Visger nor Dr. Chellini were aware
that John had taken Plavix; neither Dr. Von Visger nor Dr. Chellini contacted the
prescribing physician to determine whether it was safe for John to be off Plavix for the
procedure; and neither Dr. Von Visger nor Dr. Chellini discussed with John the
increased risks of being on Plavix during the procedure.
        {¶ 21} Based upon the foregoing the court finds that plaintiffs have proven that
defendant breached the standard of care with respect to the medical treatment it
provided to plaintiffs’ decedent. Accordingly, judgment shall be rendered in favor of
plaintiffs.
Case No. 2010-01123                       -7-                                         ENTRY




                                             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



ELIZABETH K. MEHAFFEY, Admx., etc., et al.

      Plaintiffs

      v.

THE OHIO STATE UNIVERSITY COLLEGE OF MEDICINE

      Defendant

Case No. 2010-01123

Judge Clark B. Weaver Sr.

JUDGMENT ENTRY

      {¶ 22} This case was tried to the court on the issue of whether defendant
breached the standard of care with respect to the medical treatment it provided to
plaintiffs’ decedent. The court has considered the evidence, and for the reasons set
forth in the decision filed concurrently herewith, judgment is rendered in favor of
plaintiffs. A case management conference is set for December 28, 2012, at 9:00 a.m.,
to discuss further proceedings. The court shall initiate the conference via telephone.



                                         _____________________________________
                                         CLARK B. WEAVER SR.
                                         Judge
Case No. 2010-01123               -8-                             ENTRY


cc:


Daniel R. Forsythe                 Michael D. Shroge
Karl W. Schedler                   55 Public Square, Suite 2222
Assistant Attorneys General        Cleveland, Ohio 44113
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

003
Filed November 16, 2012
To S.C. Reporter March 22, 2013
