The opinion
[Cite as Siegel v. Univ. of Cincinnati College of Medicine, 2024-Ohio-4946.]
IN THE COURT OF CLAIMS OF OHIO
FRANCES B. SIEGEL, Admr., etc., et al. Case No. 2009-09531JD
Plaintiffs Magistrate Holly True Shaver
v. DECISION OF THE MAGISTRATE
UNIVERSITY OF CINCINNATI
COLLEGE OF MEDICINE
Defendant
{¶1} This case was tried to the court on November 6-9, 2023, on the issues of
liability and damages for plaintiffs’ claims of spoliation of evidence and fraud. For the
following reasons, judgment is recommended in favor of defendant.
Procedural History
{¶2} This case has a lengthy history. The underlying facts in this case involve
plaintiffs’ decedent, Jessica Siegel (“Jessica”), who died at the age of 16 after she
underwent brain surgery at Good Samaritan Hospital in Cincinnati, Ohio in August 2006.
Plaintiffs filed lawsuits in 2008 and 2009 in the Hamilton County Court of Common Pleas
regarding Jessica’s death and the harvesting of her eyes after her death. Plaintiffs filed
the current case in this court on December 16, 2009. This case was stayed pending the
connected actions in Hamilton County. In 2013, the undersigned magistrate conducted
an evidentiary hearing on the civil immunity of Dr. Andrew Ringer, the physician who
performed Jessica’s brain surgery. This court found that Dr. Ringer was entitled to
personal immunity and that he did not act in a willful, wanton, or reckless manner during
his care and treatment of Jessica. The decision on the immunity determination was
upheld by the Tenth District Court of Appeals, and the Supreme Court of Ohio declined
to hear an appeal. The proceedings in Hamilton County resulted in a finding that plaintiffs’
claims were barred by the applicable statutes of limitations and/or that they were barred
by the doctrine of res judicata. Thereafter, this court granted summary judgment in
Case No. 2009-09531JD -2- DECISION
defendant’s favor, finding that plaintiffs’ claims were barred by the applicable statutes of
limitations. The Tenth District Court of Appeals affirmed this court’s decision that
plaintiffs’ claims of medical malpractice, wrongful death, and breach of contract about the
autopsy were barred by the applicable statutes of limitations. However, the Tenth District
Court of Appeals reversed and remanded the portion of this court’s decision regarding
plaintiffs’ claims for fraud and spoliation of evidence because it found that those claims
were not medical claims, and that they were not barred by the applicable statute of
limitations based upon the evidence in the record at that time.1 After another series of
motions, this court found that issues of both material fact and credibility existed regarding
the testimony of Daniel Siegel, Dr. Andrew Ringer, Attorney Paul Scott and Attorney
Joseph Shea. The case proceeded to trial on the remaining claims of fraud and spoliation
of evidence. Upon review of the evidence now in the record, the testimony of all witnesses
at trial including deposition testimony, and the parties’ post-trial briefs and arguments, the
magistrate makes the following findings of fact and conclusions of law.
Underlying Undisputed Facts Regarding Jessica’s Medical Condition and
Procedures, Taken From Medical Records and Testimony of Witnesses
{¶3} When she was nine years old, Jessica was diagnosed with arteriovenous
malformation (AVM), after she had experienced a series of severe headaches and
sensitivity to light. AVM occurs in the brain when certain arteries connect directly to veins,
which results in high pressure, high flow blood from the arteries going directly into the
low-pressure system of the veins without having gone through the filter of the capillaries.
In some instances, the veins cannot withstand the pressure and they rupture and cause
bleeding in the brain or stroke-like symptoms. A nidus is the component of the AVM in
which the abnormal artery to vein connections are made and the immediately surrounding
vasculature. There were two different niduses in Jessica’s brain. Jessica’s AVM was
large and was considered either a 4 or a 5 on the Spetzler- Martin grade system, a scale
used to measure AVMs for surgical resection.
1 Siegel v. State, 2020-Ohio-4708, ¶ 1 (10th Dist.).
Case No. 2009-09531JD -3- DECISION
{¶4} Jessica was initially treated at Cincinnati Children’s Hospital by Dr. John
Myseros, head of the neurosurgery department. Jessica successfully underwent three
embolizations and one radiosurgery from age 9 to 15 with Dr. Myseros. Trial transcript,
p. 62. The Siegels were informed that after the radiosurgery, it might take 18 months to
four years to see any results. Jessica underwent annual MRIs with Dr. Myseros to make
sure the AVM did not get any worse. Dr. Myseros referred Jessica to Dr. Andrew Ringer
because Dr. Myseros was moving to Washington, D.C. Jessica was asymptomatic when
she was referred to Dr. Ringer.
{¶5} After consulting with Dr. Ringer in March 2006 and discussing her condition,
a staged embolization was scheduled for July 2006. Plaintiffs’ Exhibit 55. Surgical
resection of the AVM was never planned for Jessica; Dr. Ringer’s plan was embolization
and then radiosurgery to reduce the size of the niduses. The medical records reflect that
Dr. Ringer had a lengthy discussion with Jessica and her parents about the risks and
benefits of observation, radiosurgery, embolization, and surgery; and that Dr. Ringer had
described recent improvements in embolic technique and materials, such as a new type
of glue known as “Onyx,” that had dramatically improved the ability to treat AVMs and
subsequently improve the safety and efficacy of radiosurgery or surgery. Plaintiffs’ Exhibit
3, p. 131/135.
{¶6} In July 2006, Jessica underwent the first embolization surgery performed by
Dr. Ringer. Plaintiffs’ Exhibit 4A. Embolization surgery is performed by moving a
guidewire through the brain and using a substance, known as Onyx, to glue shut a portion
of the artery or vein. During the July surgery, there was one complication: an AVM pedicle
branch perforation, but it was asymptomatic and did not cause any problems at the time.
Dr. Ringer sent a letter to Jessica’s pediatrician stating that the procedure was
uncomplicated. Plaintiffs’ Exhibit 15. Jessica’s mother and the administrator of her
estate, Frances Siegel, testified that Dr. Ringer stated that he was able to block off 20
percent of the veins that were part of the problem, and that another embolization
procedure needed to be scheduled within four weeks. Trial transcript, p. 545. The next
surgery was scheduled for August 14, 2006.
{¶7} According to Jessica’s parents, plaintiffs Daniel and Frances Siegel, on the
morning of the scheduled August surgery, Jessica did not want to go to the hospital, and
Case No. 2009-09531JD -4- DECISION
she locked herself in her bedroom, stating that she had a bad dream about the procedure.
After a discussion with her parents, Jessica got into the car with them to go to the hospital,
but she was still fearful of going forward with the surgery. Jessica’s parents advised her
that the surgery was in her best interests. Plaintiffs regret that they made this decision
for their daughter, and Frances testified that she has unresolved guilt about this. Trial
transcript, p. 547. Frances Siegel also testified that at an earlier time when Jessica was
getting her temporary driving permit at the Bureau of Motor Vehicles, Jessica stated that
she did not want to be an organ donor. Trial transcript, p. 561.
{¶8} During the August 14, 2006 surgery, two complications occurred, which are
documented in the medical records. Defendant’s Exhibit A, p. 423-427. First, there was
extravasation of contrast dye. Id., p. 425. This typically occurs when there has been a
perforation of a vein or artery. Second, there was a “filling defect” in the right middle
cerebral artery, which appeared to have been caused by the glue getting into an artery
which was not intended for embolization. Id. Although there were complications, a form
letter from Dr. Ringer to Jessica’s pediatrician was issued, stating that the procedure was
uncomplicated. Plaintiffs’ Exhibit 16. Because of the potential of a blood clot, Dr. Ringer
administered heparin, a blood thinner, after the filling defect to prevent any clot from
causing a stroke. After surgery, Dr. Ringer informed plaintiffs that there had been
complications during the procedure. According to Frances, Dr. Ringer said that he had
nicked a healthy vein and he plugged it up and everything was fine, and Jessica was
resting comfortably. Trial transcript, p. 548. According to Daniel, Dr. Ringer told him that
he had nicked a good artery and there was a bleed but that he had plugged it up and
stopped it and told them not to worry. Trial transcript, p. 77. After surgery, Jessica was
awakened and was able to speak with her parents. Frances stayed with Jessica overnight
and Daniel and Jessica’s older sister, Kristen, went home. Jessica had a sudden, severe
headache, cried out in pain, and then suffered a stroke. She was placed in a medically
induced coma for the rest of her hospital stay.
{¶9} On August 15, 2006, a CT scan of Jessica’s brain showed that a hematoma
had developed and had increased in size. Frances testified that by August 15, 2006, she
was aware that there was a recognized brain bleed in Jessica’s head, which increased in
size by August 16, 2006. Trial transcript, p. 551. Daniel testified that Dr. Nicholas Levine
Case No. 2009-09531JD -5- DECISION
told him that Jessica had a brain bleed and had been placed in a medical coma; that a
catheter had been placed in her brain; and that they were watching her and running tests.
Trial transcript, p. 78. Daniel testified that Dr. Levine told him that it was a dangerous
brain bleed and that he would keep the Siegels informed of Jessica’s condition. Id.
Jessica’s intercranial pressures (ICP) increased throughout the days following the surgery
and Dr. Ringer performed a craniectomy to relieve the pressure on August 18, 2006.
Days after the craniectomy, it was decided that Jessica should undergo a tracheostomy
to provide an airway for continued respiratory support. Dr. Bradley Bobbitt performed the
tracheostomy on August 23, 2006. Within hours of the tracheostomy, Jessica’s
temperature increased to 108 degrees, she went into a code blue, and died. Jessica’s
sudden death was a shock to her family, her treating physicians, and the medical team.
{¶10} The medical records show that multiple CT scans of Jessica’s brain were
taken during her hospital stay. A CT scan was performed after the embolization
procedure on August 14. Defendant’s Exhibit B, p. 012, 108, 124. Another CT scan was
performed on August 15 after Jessica’s change in status. Defendant’s Exhibit B., p. 012,
098. A repeat head CT scan was performed on August 15, prior to Jessica having a
seizure. Defendant’s Exhibit B, p. 012. Another head CT scan was taken on August 15
after Jessica had suffered a seizure. Id. A repeat head CT scan was conducted on
August 16. Defendant’s Exhibit B, p. 012, p. 110. Another head CT scan was conducted
on August 17. Defendant’s Exhibit B., p. 013, 117. Another CT scan of her head was
performed on August 18 before the craniectomy. Defendant’s Exhibit B, p. 013. Another
CT scan of her head was performed on August 19. Defendant’s Exhibit B., p. 014, 122.
Another CT scan of her head was performed on August 21. Defendant’s Exhibit B, p.
130. A final CT scan of her head was performed on August 23 at 10:53 a.m. Plaintiffs’
Exhibit 5.k Disk 14.
{¶11} The claims for spoliation of evidence and fraud are based upon events that
occurred following Jessica’s death. It is undisputed that Dr. Ringer approached Daniel
Siegel and obtained his permission for the pathology department at University of
Cincinnati Hospital to perform an autopsy. Dr. Ringer requested permission for an in-
house autopsy based on his assertion that the Hamilton County Coroner’s Office had
been contacted and declined to perform an autopsy. Daniel Siegel signed an
Case No. 2009-09531JD -6- DECISION
authorization form for a complete autopsy before he left the hospital on the night of
Jessica’s death. When the autopsy report was provided to the Siegels four months later,
it revealed that Jessica’s head and brain had not been examined during the autopsy.
{¶12} Plaintiffs allege that Dr. Ringer lied when he told the Siegels that the coroner
did not accept the case, and that he intentionally excluded the brain and head from the
autopsy to destroy any evidence that an autopsy of Jessica’s brain would have provided
to support their claims for medical malpractice and wrongful death. Plaintiffs assert that
examination of the brain was critical in Jessica’s case, because Dr. Ringer had recently
performed brain surgery on her, and that excluding her brain from the autopsy disrupted
any medical malpractice or wrongful death case they could have pursued. Plaintiffs also
argue that when they met with Dr. Ringer on January 17, 2008, more than one year after
Jessica’s death, Dr. Ringer lied to them again when he claimed not to know why Jessica’s
brain had not been examined as part of the autopsy. Plaintiffs assert that they first learned
that Dr. Ringer had limited the autopsy himself when they took the deposition of nurse
Amie Smith on December 17, 2008, in litigation against the eye-harvesting company.
Events After Jessica’s Death
{¶13} In the immunity determination eleven years ago, the undersigned magistrate
found that the Hamilton County Coroner’s Office had been contacted by Jessica’s medical
team and that the coroner declined to perform an autopsy on Jessica. This finding was
based upon testimony and the medical records, including a note written by Dr. Nicholas
Levine, who was the chief resident during Jessica’s hospitalization. Plaintiffs’ counsel
proffered an affidavit from the coroner’s office at the evidentiary hearing, but it was not
admitted into evidence because it had not been disclosed to opposing counsel prior to
the hearing, and no witness from the coroner’s office was called to testify.
{¶14} At trial, plaintiffs presented the deposition testimony of Andrea Hatten, office
administrator for the Hamilton County Coroner’s Office. Plaintiffs’ Exhibit 27. Hatten
testified that all deaths reported to the coroner’s office were documented by way of
computer in 2006. Hatten Deposition., p. 8. After running a computer search for reported
deaths from August 23 to August 24, 2006, Jessica’s name was not found. Id., p. 53.
Hatten also testified that the code “NCC” which stands for non-coroner’s case, a case
Case No. 2009-09531JD -7- DECISION
that was not accepted by the coroner, means that the coroner would not sign the death
certificate. Id., p. 13. Hatten testified that the phone line for a potential coroner’s case is
always monitored. Id., p. 17. According to Hatten, the coroner’s office has never kept
phone records of incoming calls, but the person on duty would document the information
if a death were reported. Id., p. 20-22. Hatten explained, “When the calls would come in
– well, there are cases that qualify as being reportable to our office, and it’s up to,
depending on the circumstances of the death and the on-call pathologist, of which those
circumstances would be reported to, as to whether or not it would be accepted as a
coroner’s case.” Id., p. 29. Hatten stated: “If we would have accepted jurisdiction in that
death, it would be recorded in here, and if it was reported to us, it would have been
recorded in here.” Id., p. 32-33. Hatten also testified that a reported death is a non-
coroner’s case if it does not meet the criteria of being an unnatural death. Id., p. 35.
Hatten explained that the coroner’s office always performs a complete autopsy, not a
limited one. Id., p. 44. Hatten stated that from her examination of the records at the
Hamilton County Coroner’s Office for the period of August 23-24, 2006, no record of
Jessica Siegel exists. Id., p. 53.
{¶15} Hatten provided five examples of deaths that had been reported to the
Hamilton County Coroner’s office on August 23-24, 2006. See Exhibits D-1 through D-5
of Hatten’s Deposition. One death was reported from the Clermont County Coroner’s
Office for an individual who was found dead in her home. This death was classified as
an out of county case. The immediate cause of death was listed as intracerebral and
brain stem hemorrhages. The second death was classified as an autopsy case, for an
individual who was found dead at his residence. The immediate cause of death was listed
as asthma, and it was classified as a natural death. The third death was for an individual
who died in the emergency room at Mercy Franciscan-Western Hills. This individual was
pronounced dead by an emergency room doctor, his death was classified as a non-
coroner case, and there is no immediate cause of death listed. The fourth individual’s
death was listed as “storage bodies” for an individual who died as an inpatient at Hospice
of Cincinnati and had donated her body to the University of Cincinnati Department of
Anatomy. No cause of death was listed. The fifth individual died at the emergency room
at Mercy Hospital Anderson. His case was classified as a non-coroner case, and no
Case No. 2009-09531JD -8- DECISION
immediate cause of death was noted. Hatten testified that her office would not perform
an autopsy if a physician, not in the coroner’s office, was signing the death certificate.
Hatten Deposition, p. 15. Based upon Hatten’s testimony, the magistrate finds that the
Hamilton County Coroner’s Office has no record that Jessica Siegel’s death at Good
Samaritan Hospital on August 23, 2006, was reported to its office. Notably, however, the
two examples provided of deaths that were reported by emergency room physicians were
classified as non-coroner cases by the Hamilton County Coroner’s Office, and no cause
of death was listed for those individuals.
{¶16} In contrast to that testimony, defendant filed the deposition of Amie Smith,
R.N., with attached exhibits. Defendant’s Exhibit M-11. Smith’s deposition was taken on
December 17, 2008, in plaintiffs’ lawsuit against LifeCenter Organ Donor Network, et al.,
in the Hamilton County Court of Common Pleas, because plaintiffs asserted that Jessica’s
eyes were harvested for transplantation after her death without plaintiffs’ consent. Smith’s
deposition was presented at the immunity hearing eleven years ago but the exhibits from
her deposition were not included at that time. Smith testified that she began caring for
Jessica on August 16, 2006, after Jessica had been placed on a ventilator. Smith
Deposition, p. 12, 28. Smith also cared for Jessica on August 23, 2006, the day that she
died. Id., p. 13.
{¶17} Smith testified that when a death occurs, she is responsible for completing a
“death packet,” which contains three forms: 1) a release of body form; 2) a referral for
LifeCenter, and 3) the autopsy request form. Smith Deposition, p. 37. Smith explained
that she handwrites information and gives it to the unit coordinator, who enters it into a
computer to generate the release of body form. Id., p. 39. Of note, on the release of
body form, it states: “Autopsy? Yes (If a physician requested autopsy is to be performed,
please obtain the appropriate signature and complete the form #L-202 8-01. Place this
completed form in the chart and send the chart to the laboratory.) Coroner’s case: N.”
(Emphasis added.) Smith Deposition, Exhibit 5, p. 56/63.
{¶18} The third form in the death packet is the most relevant to this case. The
autopsy authorization form is contained in the record in multiple places. Exhibits 6 and 7
to Smith’s deposition; Defendant’s Exhibit A, p. 495; Plaintiffs’ Exhibit 6. The heading on
the form states “Department of Pathology.” Smith testified that after Dr. Ringer came
Case No. 2009-09531JD -9- DECISION
back from talking to Jessica’s family, Dr. Ringer informed her that the family wanted an
autopsy. Smith Deposition, p. 46.
Smith stated the following about what she remembers:
The family was in the patient’s room. They came out, stated they wanted
to leave. I had not completed any of the forms that I had needed to do at
that time. I then handed – I told Mr. Siegel that I have not completed the
forms that require his signature. He said he didn’t care and they wanted to
leave. So he signed this form without it being filled out.
Smith Deposition, p. 45.
The department of pathology form contains the following information:
AUTHORIZATION FOR AUTOPSY.
I (We) request and authorize the physicians and surgeons in attendance at
the Good Samaritan Hospital to perform a complete autopsy on the remains
of ____________ and I (we) authorize the removal and retention or use for
diagnostic, scientific or therapeutic purposes of such organs, tissues, and
parts as such physicians and surgeons deem proper.
The following post-mortem examination shall be made. (CHECK ONLY
ONE)
1. Brain ________
2. Thorax __________
3. Heart ____________
4. Lung _____________
5. Abdomen ________
6. Limited to thorax and abdomen (no head) ________
7. Specific abdomen organ (state) ___________
8. Complete (including head and brain) ________
Case No. 2009-09531JD -10- DECISION
I (We) wish the remains to be released to (Name of undertaking
establishment) ___________________ (City) _____________ (State)
________________
I (We) represent that I am (we are) the (relationship)
______________________ of the deceased and entitled by law to control
the disposition of the remains.
SEE REVERSE SIDE FOR PERSON AUTHORIZED TO SIGN THIS
FORM.
Signed: (Signature and relationship to deceased)
___________________________
Witnesses:
_____________________________
_____________________________
Name of Person obtaining Authorization:
_______________________________
{¶19} Smith testified that she witnessed Daniel Siegel sign the form. Smith
Deposition, p. 45. Then, after the Siegels left the hospital, Smith began to fill out the form
with Dr. Ringer. Id., p. 47. When she got to the portion where it states which type of
autopsy, she check-marked number 8, “Complete (including head and brain).” Id. She
stated it aloud when she check-marked it. Id. Dr. Ringer was standing to the right of her.
Id. He stated, “No, I do not want a complete head and brain. That is not why she died.”
Id. Smith then crossed a line through number 8, wrote “ERROR, AS 8/23/2006 2030,”
checked the line for number 6 (Limited to thorax and abdomen (no head)) and wrote “and
muscle biopsy for malignant hyperthermia.” Id., p. 47, 50. She also added: “see order
sheet verbal order Dr. Andrew Ringer requested” and signed her name. Id., p. 51. Smith
also signed as a witness and as the name of the person obtaining authorization. Smith
Deposition Exhibit 6. Smith filled out the other portions of the form as shown in the exhibit,
including the information from Jessica’s medical records and the funeral home
information. Id.
Case No. 2009-09531JD -11- DECISION
{¶20} Smith testified that she was not present for the discussion about an autopsy
with the Siegels; that she did not know what the family wanted with regard to an autopsy;
that Dr. Ringer never told her that he had told the family that the brain would be excluded
from the autopsy; and that she did not tell the Siegels that the autopsy would be limited.
Smith Deposition, p. 45-46, 51, 71. Smith also testified that when she spoke to the
employee from LifeCenter to report Jessica’s death she reported it as a cardiac death
and that the cause of death was cardiac arrest. Smith Deposition Exhibit 8, p. 60/63. The
call she made to LifeCenter was recorded, and during Smith’s deposition, the recording
was played, and Smith made corrections to the written transcription that counsel for
plaintiffs had typed and marked as Exhibit 8 to Smith’s deposition. Smith Deposition, p.
73-79. Other than the phone call, Smith did not have any contact with LifeCenter and did
not know the details of whether plaintiffs consented to any organ donation, because that
would be handled by LifeCenter staff. Id., p. 82-83.
{¶21} Part of the phone call transcription shows that when Smith was asked
whether there was going to be an autopsy or a coroner’s case, she stated, “we are talking
with the coroner right now.” Id., p. 79, Smith Deposition, Exhibit 8, p. 62/63. Smith
testified that in her nursing practice, a patient is a potential coroner case if they have died
within 24 hours of admission, or they have died 24 hours after a surgical procedure, such
as a tracheostomy. Id., p. 79-80. Smith also testified that it is her practice to have the
physician contact the coroner, and in this case, she asked a physician to contact the
coroner, but she was not sure which physician she asked. Id. Smith testified that she
has contacted the coroner herself in other cases, and that she would give all the
demographic information and history of the patient and then the coroner’s office would
determine whether the coroner’s office wanted it to be a coroner’s case. Id., p. 80-81.
{¶22} Dr. Nicholas Levine, a neurosurgeon, was the chief resident who cared for
Jessica during her August 2006 admission to Good Samaritan Hospital, while Dr. Ringer
was the attending physician on Jessica’s case. Trial transcript, p. 776, 777. Dr. Levine is
currently licensed in California. Id., p. 774. He spent seven years at the University of
Cincinnati Mayfield Clinic neurosurgery program. Id. He was a chief resident in August
2006 and was in his seventh year of the residency program at that time. Id., p. 774-775.
According to Dr. Levine, all notes in the medical record were handwritten in 2006, as
Case No. 2009-09531JD -12- DECISION
opposed to being electronic. Id., p. 775. However, discharge summaries were dictated
and transcribed. Id.
{¶23} Dr. Levine remembers Jessica’s case. Id., p. 777. Dr. Levine testified that
he wrote the neurosurgery note contained on page 71 of Defendant’s Exhibit A, including
the death note. Trial transcript, p. 781-784. The last two lines of the death note state:
“Patient pronounced dead at 7:08 pm. Appropriate parties including family and coroner
notified.” Id., p. 784; Defendant’s Exhibit A, p. 71. Dr. Levine signed the death note. Id.
According to Dr. Levine, in the case of any death on the neurosurgery service, it was
customary for the resident to call the coroner and notify the coroner of a death. Trial
transcript, p. 785. Dr. Levine testified that he would not have recorded that he called the
coroner if he had not done so. Id. Dr. Levine testified that the medical record is a legal
record, and that he would not write anything in a medical record that is not appropriate
because he could be subject to sanctions or lose his medical license for inappropriate
chart documentation. Id., p. 785-786. Dr. Levine testified that he was not part of any
scheme to falsely say that he notified the coroner but did not. Id., p. 786.
{¶24} Dr. Levine testified that he dictated the discharge summary for Dr. Ringer.
Id., p. 786-789; Defendant’s Ex. A, p. 163-168. Dr. Levine stated that it was routine for
the resident to dictate the discharge summary, and the only reason the attending
physician would do so is if there was no resident present or if the attending physician was
taking care of the patient separate from the residents. Trial transcript, p. 787. Dr. Levine
testified that he dictated the discharge summary based upon Jessica’s medical records
and the care that he provided to her. Id., p. 787-788. The discharge summary states:
“The appropriate parties including the patient’s family and the coroner were notified. The
coroner declined an autopsy; however, at the physician’s request and the patient’s
family’s approval an autopsy will be obtained.” Defendant’s Exhibit A, p. 168. Dr. Levine
testified that this is a truthful statement. Trial transcript, p. 788. Dr. Levine testified that
he called into the dictation service, and that he alone dictated the discharge summary.
Id.
{¶25} Dr. Levine testified that when he called the coroner’s office, he remembers
being near the Intensive Care Unit (ICU) and the nurses’ station. Id., p. 789. Dr. Levine
did not remember which nurses were present but testified that multiple nurses were at the
Case No. 2009-09531JD -13- DECISION
nurses’ station when he made the call. Id. Dr. Levine testified that he called the coroner
and discussed the case with the coroner’s office to see if they were going to take the
case. Id.
{¶26} Dr. Levine stated that throughout his residency, it was a regular occurrence
for him to contact the coroner’s office. Id., p. 792. Plaintiffs’ Exhibit 50 states the
following:
At Good Samaritan Hospital: The attending physician is ultimately
responsible for calling the Coroner’s Office. The Coroner is to be called by
the attending physician or the resident taking care of that patient. In the
case of patients without resident coverage, the attending physician will be
responsible for the call, regardless of who actually pronounces the patient.
Nursing is responsible for, or having the unit coordinator fax to the Coroner’s
Office any demographic data needed.
...
Coroner’s Cases
1) Evaluate patient to determine if a coroner’s case. The Coroner’s Office is
notified of the following:
• accidental death (motor vehicle crash or industrial accident)
• homicidal death
• suicidal death
• abortions (criminal or self-induced)
• sudden death
• therapeutic complications
• any case in which surgical intervention has occurred during the current
admission
• any death due to fire or burns
• any death in which there is a doubt, question, or suspicion
• any death within 24 hours of hospital admission
• all stillborn infants where there is suspected or actual injury to the mother.
Case No. 2009-09531JD -14- DECISION
{¶27} When shown Plaintiffs’ Ex. 50, Dr. Levine explained that the coroner is to be
called by the attending physician or the resident taking care of the patient. Trial transcript,
p. 794. Dr. Levine testified that he was the resident taking care of Jessica, and he
followed hospital guidelines by calling the coroner. Id.
Dr. Levine explained that:
The coroner’s office usually had an attendant that would answer the phone.
You would discuss the details of the patient and their death. All the
information was garnered from that attendant. And then you were told that
that would be discussed with the coroner and if the case were to be taken,
you would be called back. Otherwise, the coroner did not take the case.
Id., p. 796.
{¶28} Although Hatten testified that there is no record from the Hamilton County
coroner’s office, Dr. Levine testified that he did make the call, which is documented in his
dictation at the time, and that he did not receive a call back from the coroner’s office. Id.,
p. 796-798. Dr. Levine testified that he was not involved in Dr. Ringer’s discussions about
the autopsy with the family. Id., p. 798.
{¶29} Daniel Beckman, M.D., was the pathologist who performed the autopsy on
Jessica. Dr. Beckman’s deposition was taken on January 19, 2009, in litigation against
Lifecenter Organ Donor Network. Plaintiffs’ Exhibit 54. Dr. Beckman testified that in
performing an autopsy, his job is to “analyze the tissues and come up with a reasonable
cause of death. That’s the function of the autopsy. We can’t always come up with the
cause of death, but we are looking at anatomic tissues, and we prepare slides, and that’s
how we come to our conclusions.” Beckman Deposition, p. 26-27. Dr. Beckman testified
that he performed approximately three to five autopsies per year, besides performing his
other pathology duties, and that the incidents of autopsies had dropped off quite a bit. Id.,
p. 27.
{¶30} Dr. Beckman first saw the autopsy consent form on the morning of the
autopsy. Id., p. 33. The date of the autopsy was August 24, 2006. Id. Before he began
the autopsy, Dr. Beckman spoke to Dr. Ringer via telephone to see if there was anything
unusual or if Dr. Ringer wanted him to look for anything special. Id., p. 36. Dr. Beckman
talked to Dr. Ringer about Jessica’s history, what happened to her, and Dr. Ringer’s
Case No. 2009-09531JD -15- DECISION
concern for malignant hyperthermia. Id., p. 37. Dr. Beckman testified that the majority of
the time, he performs a complete autopsy, including the chest, abdomen, and brain. Id.,
p. 38. When asked from a pathologist’s standpoint, why he would want to do a complete
autopsy, including the head and brain, he testified, “I think you have to analyze the whole
body, and that’s the only way to do it.” Id., p. 38.
{¶31} Dr. Beckman testified that the authorization for an autopsy gave him
permission to perform an autopsy on the thorax and abdomen and test the muscle tissue
for malignant hyperthermia. Id., p. 41. He noted that he does not routinely take muscle
tissue as part of a “normal” autopsy. Id. When asked why, in his discussions with
Dr. Ringer, the head and brain were excluded during the autopsy, Dr. Beckman testified
that, “Dr. Ringer stated the intercranial pressure was normal, so he did not want the brain
autopsied.” Id., p. 42-43. When asked what intercranial pressure has to do with
determining how Jessica died, Dr. Beckman stated, “I really don’t know.” Id., p. 43. He
agreed that a normal intercranial pressure did not rule out a cause of death within the
brain itself. Id., p. 43. He testified that it was Dr. Ringer’s “call” for what he wanted to be
autopsied, and that even though it might be unusual, it was Dr. Ringer’s decision to make.
Id., p. 44. Dr. Beckman explained that even though he would want to examine the brain
in determining a cause of death, it was not his prerogative to ask Dr. Ringer for different
permissions. Id., p. 45. Dr. Beckman testified that Dr. Ringer did not discuss the wishes
of Jessica’s parents during the conversation he had with him. Id.
{¶32} Dr. Beckman agreed with the statement, “available data from the medical
literature shows that most pathologists believe that the complete autopsy remains the
criterion standard and that limitations on the autopsy procedure greatly increase the risk
of incomplete or inaccurate results.” Id., p. 52. Dr. Beckman testified that if he had been
permitted to examine the brain, he would have removed the brain and probably would
have called the consulting neuropathologist, Dr. Kendler, at the University of Cincinnati.
Id., p. 54. Dr. Beckman stated that if the brain were removed, it would be placed in a
container of formaldehyde for seven to fourteen days to “fix” it, which would yield a better
microscopic examination of the brain, because the brain is a very gelatinous type of organ.
Id., p. 55. If Dr. Beckman had removed the brain, the goal would have been to see if
there was any hemorrhage in the brain, document the size of the abnormal AVM blood
Case No. 2009-09531JD -16- DECISION
vessels, and look for any blockages in any of the major arteries of the brain. Id., p. 56-
57. Dr. Beckman testified that without a complete autopsy, including the brain, he cannot
determine what the cause of death was with medical certainty. Id., p. 58. He testified
that he thought the pneumonia certainly contributed to Jessica’s death. Id., p. 58-59.
When asked, “Are you able to give an opinion as, within medical probability, why Jessica
died without an examination of her brain, given her clinical picture here?” he replied, “All
I can say is that the lung disease contributed to her death. I don’t know what part of the
central nervous system, hemorrhage, postoperative complications, etc., contributed to
her death.” Id., p. 59. He continued, “That is a decision that has to be made by the
clinicians that were taking care of her, with contribution from the autopsy.” Id. He stated
that if Jessica’s body were to have been exhumed in 2009, her brain would have been
decomposed and would not have contributed to evaluating the cause of her death. Id.,
p. 59-60. In Dr. Beckman’s professional opinion, it would have been of use to examine
Jessica’s brain during the autopsy. Id., p. 61. He had no opinion on whether it was
unusual in this type of case to not examine the brain during an autopsy. Id.
{¶33} Dr. Beckman recalled that Dr. Ringer also wanted to rule out a pulmonary
embolism, and that Dr. Beckman found no evidence of a pulmonary thromboembolism
anywhere in Jessica. Id., p. 70-73. Dr. Beckman noted that the right pleural space
contained approximately 50 to 60 cc’s of straw-colored fluid, as did the left space. Id., p.
73. He explained that finding is consistent with pneumonia. Id. Dr. Beckman noted that
Jessica’s right lung weighed 950 grams and the left lung weighed 880 grams, which
meant that both lungs were heavy and that finding was consistent with either fluid or
pneumonia. Id., p. 75. He noted that the pleural surfaces were somewhat congested and
hemorrhagic, which meant that the lungs were filled with fluid more than air, and that they
were more reddish than usual. Id., p. 75. Dr. Beckman testified that the autopsy of
Jessica’s lung tissue showed necrotizing areas which are caused by a severe form of
pneumonia. Id., p. 82-83. In the Preliminary Anatomic Diagnosis of the autopsy report,
Dr. Beckman wrote: “1. Lungs with lower lobe congestion and possible consolidation, right
– weight, 950, left, weight, 880.” Plaintiffs’ Exhibit 7, p. 4. Dr. Beckman wrote that as his
first finding because it was his most significant finding. Beckman Depo., p. 86-87. His
second finding was “bilateral pleural effusions”; his third finding was “status post right
Case No. 2009-09531JD -17- DECISION
craniectomy for intracerebral hematoma (08-18-2006)”, which was not a pathological
finding but was important to the diagnosis. Id., p. 87. The fourth finding was “status post
tracheotomy (08-23-2006).” Plaintiffs’ Exhibit 7, p. 4. Dr. Beckman testified that he was
not contacted or consulted about the certificate of death or the cause of death listed
thereon. Beckman Deposition, p. 91.
{¶34} When asked, “if the coroner’s office had been contacted in this case and did
not accept it, would this have been a case that you would have gotten on the phone and
asked them [the coroner’s office] to review it” Dr. Beckman stated, “I doubt it, no. . . . I
don’t think there was anything unusual that – it was very unusual and very tragic that she
passed away, but I – it was my impression, reading over the chart at the time of the
autopsy, that nothing unusual was done or had happened.” Id., p. 98. Dr. Beckman
agreed that Dr. Ringer’s order for an autopsy with muscle biopsy, “PE versus malignant
hyperthermia,” did not put any limitations on the autopsy, but that Dr. Beckman did not
have permission to autopsy the brain because the autopsy authorization did not permit
him to do so. Id., p. 112-113; 104, 41, 123. Dr. Beckman testified that the results of the
tissue that was sent to Pittsburgh to be tested for malignant hyperthermia came back
around November 12, 2006. Id., p. 116. The completed autopsy report was available on
December 8, 2006. Id.
Dr. Andrew Ringer
{¶35} On cross-examination, Dr. Ringer testified that he began performing
endovascular surgeries as an attending physician in 2001 and had performed a handful
of procedures as an attending physician on AVMs that were rated as a 4 to 5 on the
Spetzler-Martin grade system before he treated Jessica. Trial transcript, p. 174-176.
Jessica was Dr. Ringer’s first AVM procedure that resulted in death. Trial transcript,
p. 177. Dr. Ringer testified that the tracheostomy was performed on August 23 with his
consent, even though Jessica had a fever that day. Trial transcript, pp. 199-200.
Case No. 2009-09531JD -18- DECISION
{¶36} According to Dr. Ringer, once Jessica had died, he felt obligated to report
Jessica’s death to the Hamilton County Coroner. Trial transcript, p. 201. Dr. Ringer
testified that he did not personally contact the coroner’s office. Trial transcript, p. 202.
Dr. Ringer testified that Dr. Levine wrote the death note, which is something that is
typically written by the resident. Trial transcript pp. 202-203; Plaintiffs’ Exhibit 18, death
note, p. 71. Dr. Ringer also testified that he saw Dr. Levine make the call to the coroner’s
office and explained that he and Dr. Levine were both in the ICU at the time. Trial
transcript, p. 203. Dr. Ringer had no explanation why the coroner’s office does not have
a record of the reporting of Jessica’s death. Id.
{¶37} When shown Plaintiffs’ Exhibit 17, the discharge summary, Dr. Ringer noted
that it lists his name as the dictating doctor. Trial transcript, p. 203. However, the last
page of the document says it was dictated by Dr. Levine. Trial transcript, p. 204. Dr.
Ringer testified that it was the typical practice to have the resident dictate the discharge
summary, and that Dr. Levine’s signature appears on the last page. Id. Dr. Ringer
testified that he signed off on the discharge summary electronically, as stated on the last
page. Id. Dr. Ringer testified that Dr. Levine told him that the coroner declined the case.
Trial transcript, p. 204-205.
{¶38} Dr. Ringer testified that after Jessica’s death, he approached Daniel Siegel
to discuss an autopsy. Trial transcript, p. 205. Dr. Ringer testified that he was not present
when Daniel Siegel signed the autopsy consent form; he was in the ICU. Trial transcript,
p. 206; Defendant’s Ex. A, pp. 494 and 495. Dr. Ringer explained that Nurse Smith
presented the form to him after Daniel Siegel had signed it, and that Dr. Ringer signed it
as a witness after Daniel Siegel had left the hospital. Trial transcript, p. 206. Dr. Ringer
stated that he asked Nurse Smith to cross out number 8, complete including head and
brain, because he wanted to make sure that the nurse understood the consent that he
had specifically requested from the Siegels. Trial transcript, p. 206-207.
{¶39} Dr. Ringer did not specifically recall stating to Nurse Smith, “I do not want a
complete head and brain. That is not why she died,” but he did recall that his concerns
were limited to the cause of Jessica’s death which was a sudden event that appeared to
happen in the ICU. Trial transcript, p. 207. Dr. Ringer testified that he was concerned
with cardiac causes, pulmonary causes, and the potential for malignant hyperthermia. Id.
Case No. 2009-09531JD -19- DECISION
Dr. Ringer stated that he was concerned that some other acute event had occurred, not
related to the 9- or 10-day old injury to Jessica’s brain. Id. Dr. Ringer also testified that
he most likely told Nurse Smith that the family consented to an autopsy, not that they had
requested an autopsy. Trial transcript, p. 208. Dr. Ringer stated that he was the one who
asked Daniel Siegel for consent to the autopsy because Dr. Ringer wanted an autopsy
performed. Id.
{¶40} Dr. Ringer testified that he wrote an order that stated his specific requests
for the autopsy. Trial transcript, p. 210; Plaintiffs’ Ex. 19. Dr. Ringer testified that although
his order does not contain the words “limited autopsy,” his order limited the autopsy to
those specific conditions: Autopsy with muscle biopsy – PE (pulmonary embolism) v.
malignant hyperthermia. Trial transcript, p. 211. According to Dr. Ringer, the limitation
that he had Nurse Smith make on the pathology department’s form is consistent with his
order and the consents that he had requested of the Siegels. Trial transcript, pp. 211-
212. Dr. Ringer testified that he told the Siegels what he wanted done and what he
requested consents to do before Daniel Siegel signed the form. Trial transcript, p. 212.
Dr. Ringer stated that he did not specifically tell the Siegels that he was not going to
autopsy the brain or head, but he discussed his reasons for the autopsy and obtained the
Siegels’ consent for those specific concerns before the form was completed. Id.
According to Dr. Ringer, there was no alteration in consent; there was no alteration in the
way the nurse filled it out; she filled it out erroneously initially and she corrected it. Trial
transcript, p. 213.
{¶41} Dr. Ringer stated that the morning after Jessica’s death, Dr. Beckman called
him to confirm the order for the autopsy. Trial transcript, p. 214. Dr. Ringer testified that
he discussed his order with Dr. Beckman, and that both he and Dr. Beckman agreed that
because there were multiple imaging studies of the brain, they knew exactly what the
pathology was in the brain, and that there was no need to autopsy the brain. Id.
Dr. Ringer noted that Jessica had an airway procedure on the day of her death, not a
neurological procedure. Trial transcript, p. 215.
{¶42} Dr. Ringer testified that he tried to contact the Siegels a couple of times to
discuss Jessica’s care. Trial transcript, p. 216. The medical records reflect that
Dr. Ringer sent the Siegels a letter, dated August 31, 2006, where Dr. Ringer expressed
Case No. 2009-09531JD -20- DECISION
his condolences about Jessica and offered the Siegels an opportunity to answer their
questions and concerns about Jessica’s death. Defendant’s Exhibit B, p. 028. Dr. Ringer
later sent a second letter, dated January 25, 2007, with the same offer to the Siegels to
make an appointment with his office to address any questions they had. Defendant’s
Exhibit B, p. 029.
{¶43} On January 17, 2008, more than one year after Jessica’s death, Daniel
Siegel and his sister-in-law, Mary Gulleman, met with Dr. Ringer and asked him
questions. Trial transcript, p. 279. According to Dr. Ringer, he did not recall whether they
discussed malignant hyperthermia, but he assumes that he did. Trial transcript, p. 216.
Dr. Ringer remembered that Daniel Siegel asked why Jessica’s eyes were taken. Trial
transcript, p. 217. Dr. Ringer testified that Daniel and his sister-in law did not ask him
about the autopsy. Id. Dr. Ringer’s recollection was that they were asking him about
Jessica’s eyes, and he was expecting them to be asking about her care. Id. Dr. Ringer
was unaware of the eye issue at the time. Id.
{¶44} Dr. Ringer testified that he does not know why Jessica died, but he has a
strong suspicion that it was a result of advanced pneumonia, which was apparent from
the autopsy. Id. Dr. Ringer testified that a full autopsy was not necessary because of the
scans of Jessica’s head that she had undergone before her death. Trial transcript,
pp. 217-218. Dr. Ringer had read the scans and agreed with the radiologists’
interpretations at the time of Jessica’s care. Trial transcript, p. 218. According to
Dr. Ringer, the scans were stable since the scan that showed the dramatic neurological
impairment. Id. Dr. Ringer stated that until 2006, he had ordered very few autopsies,
and described ordering them as rare. Id.
{¶45} Two versions of Jessica’s death certificate are contained in the medical
records. Plaintiffs’ Exhibits 8A and 8B. Dr. Ringer testified that his handwriting appears
on Plaintiffs’ Exhibit 8B, and that he filled this out before the autopsy was conducted. Trial
transcript, p. 220. On question 30, where it states: “Enter the diseases, injuries, or
complications that caused the death,” Dr. Ringer wrote: “Acute hemodynamic collapse
(following) tracheotomy 3 hours, hemorrhagic stroke 8 days, brain arteriovenous
malformation 9 days.” Plaintiffs’ Exhibit 8B. On question 33d, where it says, “Describe
How Injury Occurred,” he wrote: “Medical treatment of AVM.” Id. On question 32, he
Case No. 2009-09531JD -21- DECISION
marked the manner of death as “natural.” Id. On question 28d, where it states, “Was
Case Referred to Coroner?” no box is checked. Id. On question 28a, where it states,
“Certifier (Check Only One)” where the choices are “Certifying Physician” or “Coroner,”
Dr. Ringer checked the box as “Certifying Physician” and signed his name, followed by
M.D., on question 28e, where it states, “Signature and Title of Certifier.” Id. The certificate
of death, which is registered and preserved in Vital Statistics, Cincinnati Board of Health,
is the same as the handwritten version, however, no information appears in questions
33a-f, including “Medical treatment of AVM.” Plaintiffs’ Exhibit 8A. Dr. Ringer did not
know why questions 33a-f were blank on the official death certificate. Trial transcript, p.
223. Dr. Ringer testified that the date of injury was recorded as August 23, 2006, because
for nine days after the brain injury, Jessica survived, but an acute injury occurred on
August 23, the date of her death. Trial transcript, p. 221. Dr. Ringer explained that he
typically did not fill out the part on the form about whether the case was referred to the
coroner, and he also did not typically fill out the top part of the form, which is typed in both
versions. Trial transcript, pp. 222, 224.
{¶46} Dr. Ringer admitted that, as he testified in his March 2023 deposition, over
the years, the medical community has become a little less aggressive about treating high
grade AVMs. Trial transcript, p. 225. Dr. Ringer testified that potential litigation about
Jessica’s death did not cross his mind in the moment. Trial transcript, p. 226. Dr. Ringer
explained that his focus is first to manage the situation, then help to inform and provide
comfort for the family, allowing them time or space as needed, and then to make sure
that appropriate arrangements are made for the deceased. Trial transcript, p. 227.
According to Dr. Ringer, when something goes poorly, the medical team’s focus is to find
out why it happened and what can be done in the future to prevent it from happening
again. Id.
{¶47} On direct examination, Dr. Ringer testified that he is licensed in the state of
Ohio and spends more than 50 percent of his time in the active clinical practice of
medicine. Trial transcript, p. 233. In 2006, Dr. Ringer performed neurosurgical
procedures 3 or 4 times per week. Trial transcript, p. 234. Dr. Ringer explained that he
performed the August 2006 procedure on Jessica himself, with a fellow who would scrub
in and observe. Trial transcript, p. 236-237. Dr. Ringer stated that in 2006, Dr. Levine
Case No. 2009-09531JD -22- DECISION
was a chief resident in his seventh year of residency, and that at Good Samaritan, chief
residents would act as independent neurosurgeons, but consult with the attending
physicians. Trial transcript, p. 238-240. According to Dr. Ringer, Dr. Levine’s role was to
evaluate the patients, provide care, and Dr. Ringer would co-sign Dr. Levine’s notes. Trial
transcript, p. 240.
{¶48} According to Dr. Ringer, he advised the Siegels after the August 14, 2006
procedure that something had happened. Id. Trial transcript, p. 241. Dr. Ringer testified
that there was nothing he was trying to hide from the Siegels about Jessica’s condition.
Trial transcript, p. 244. Dr. Ringer described the radiological films that were taken during
Jessica’s hospitalization. Defendant’s Exhibit M9. Dr. Ringer explained that there were
ten CT scans of her head that were taken from August 14-23, 2006. Trial transcript, p.
246; Defendant’s Exhibit M9; Defendant’s Exhibit A, pages 82-84, 87-89, 92-93, 95-96,
98-99, 104-105, 108-109. When asked what the reports showed, Dr. Ringer stated:
Our initial CT scan was performed almost immediately after her procedure.
And it showed a small hemorrhage kind of where I expected to see one,
based on the events of the procedure. The subsequent CT scan done just
hours later showed that it had significantly enlarged. And each CT scan
after that reports no change in the hematoma.
Trial transcript, p. 247.
{¶49} On the day of Jessica’s death, she had undergone a tracheostomy: a
breathing tube was placed below the vocal cords directly into the windpipe. Trial
transcript, p. 248. Dr. Ringer explained that the medical team anticipated that Jessica
would need a tracheostomy for long-term support during her recovery. Id. Dr. Ringer
testified that in the progress notes shortly before Jessica’s death, Dr. Levine had written:
“Patient febrile to 108 degrees. Concern for malignant hyperthermia.” Defendant’s
Exhibit A, p. 71. Dr. Ringer explained that:
Malignant hyperthermia is a rare condition that can occur in response to
anesthesia agents that causes the patient to develop a very unusual
constellation of metabolic conditions, including a very high fever. And then
the unusual part really is an acidosis of both respiratory and metabolic
components. . . . So the body controls its pH largely through two
Case No. 2009-09531JD -23- DECISION
mechanisms. One is called the metabolic mechanism that’s mostly done
by the kidneys and can be measured by the bicarbonate levels in the blood
stream, and the other is by the respiratory system which is done by retaining
or blowing off carbon dioxide. Typically if there’s a disorder that causes one
of them to go wrong, the other compensates to partially correct the acid
base balance for the pH. Malignant hyperthermia is a very rare condition in
which both systems drive toward acidosis and there’s no compensation. . .
. Both levels of acid are elevated which means the pH is lowered.
Trial transcript, p. 249.
{¶50} Dr. Ringer stated that Jessica’s levels of acid, which would appear on a
reading of arterial blood gases, pointed to the diagnosis of malignant hyperthermia. Id.,
p. 249-250. Dr. Ringer testified that Dr. Levine’s death note states the following:
“Appropriate parties including family and coroner notified.” Defendant’s Exhibit A, p. 71.
Dr. Ringer testified that he did not tell Dr. Levine to write a note saying that the coroner
had been notified knowing that it was not true. Id., p. 251-252. Dr. Ringer also noted that
the discharge summary was dictated and signed by Dr. Levine, and that it states: “The
appropriate parties including the patient’s family and the coroner were notified. The
coroner declined an autopsy; however, at the physician’s request and the patient’s
family’s approval an autopsy will be obtained.” Defendant’s Exhibit A, p. 168. Dr. Ringer
testified that he did not instruct Dr. Levine to falsely indicate that the coroner was notified
and declined an autopsy. Id., p. 253-254. Dr. Ringer testified that he was present around
the ICU when the call to the coroner was being made. Id., p. 254. Dr. Ringer denied that
he told Dr. Levine what to write in his discharge summary. Id., p. 254-255.
{¶51} According to Dr. Ringer, after he learned that the coroner had declined the
case, he still wanted an autopsy because he was concerned about the cause of Jessica’s
death. Id., p. 255. Dr. Ringer explained that he asked the Siegels if an autopsy could be
conducted because:
Well, after I learned that the coroner had declined the case, I was concerned
about the cause of her death. I felt that something unexpected had
occurred, something unexpected and sudden. And I thought it would be
helpful to understand what that could be. The range of possibilities ranged
Case No. 2009-09531JD -24- DECISION
from a sudden cardiac event, which I thought was unlikely, to a sudden
pulmonary event like a pulmonary embolus which was more likely or then
because of the findings in the blood gases malignant hyperthermia. In
particular, the last one is important because it if – if it were present, it could
have implications for the rest of the family.
Id.
{¶52} According to Dr. Ringer, a diagnosis of malignant hyperthermia could have
implications for Jessica’s family because it was genetic. Id., p. 259. Dr. Ringer denied
that he tried to have the coroner’s office decline an autopsy so that a hospital-based
autopsy would be done instead. Id., p. 256. According to Dr. Ringer, his expectation was
that the coroner would accept the case. Id. Dr. Ringer added that autopsies are very
infrequent, and that it was unusual for him to order one. Id. Dr. Ringer testified that if he
were trying to hide something, he would not have ordered an autopsy; he would have let
that go undone. Id.
{¶53} Dr. Ringer testified that he explained to Daniel Siegel why he wanted an
autopsy, and that he seemed to understand, but of course was very distraught. Id., p.
256-257. Dr. Ringer denied that Daniel Siegel stated that he wanted a “complete autopsy
done, especially including the brain.” Id., p. 257. Dr. Ringer recalled that Daniel Siegel
said very little during the conversation because he was distraught. Id. According to
Dr. Ringer, if Daniel Siegel had said explicitly that he wanted a “complete autopsy,”
Dr. Ringer would have complied with his request. Id. After the conversation with Daniel
Siegel, Dr. Ringer wrote an order for an autopsy, which included his primary differential
diagnoses of malignant hyperthermia and pulmonary embolism. Id., p. 258. A separate
test of the muscle that was biopsied was sent to a lab to test for the enzyme present that
would indicate malignant hyperthermia. Id., p. 259. The test for the gene that is
commonly transmitted and can cause families to be at risk for malignant hyperthermia
came back inconclusive. Id., p. 259-260.
{¶54} Dr. Ringer denied changing the autopsy authorization to attempt to hide
anything about Jessica’s care or the cause of her death. Id., p. 261. According to Dr.
Ringer, he had no immediate indication that he would be sued for Jessica’s death. Id.
Dr. Ringer denied that he had any ill will or bad intent to disrupt any plans that the Siegels
Case No. 2009-09531JD -25- DECISION
may have had for discovering what happened to Jessica. Id., p. 261-262. Dr. Ringer
stated that on the contrary, he asked Jessica’s parents on more than one occasion to
come see him to discuss Jessica’s care as stated in his letters, dated August 31, 2006,
and again on January 25, 2007. Id., p. 262-264; Defendant’s Exhibit B, pp. 28, 29.
Dr. Ringer explained that if an unexpected event happens and there has not been
adequate time to discuss it, it is his practice to send a letter. Id., p. 263. Dr. Ringer denied
sending the letters to the Siegels to pretend that he cared for the family when he really
did not. Id., p. 264. Dr. Ringer explained that his goal was to make sure that the family
had some opportunity to ask questions. Id.
{¶55} When asked about the meeting he eventually had with Daniel Siegel and his
sister-in-law, Dr. Ringer explained that he typically does not take any documents with him
to a meeting like that; that Daniel Siegel asked him a lot of questions about Jessica’s
eyes; and that he was taken aback by those questions because he had no information
about Jessica’s eyes being harvested. Id., p. 264. Dr. Ringer did not recall Daniel Siegel
asking about why the brain was not autopsied. Id., p. 265.
{¶56} In Dr. Ringer’s opinion, he met the standard of care in his medical treatment
of Jessica. Id., p. 266. Dr. Ringer explained that at the time, he did his best to estimate
the risk of the AVM to Jessica over her lifetime versus the risk of treatment and felt that
the cumulative risk over her lifetime exceeded the risk of treatment. Id., p. 267. Dr. Ringer
added that this type of treatment was frequently undertaken in 2006 and still is today. Id.
Dr. Ringer stated that there was no reason for him to hide anything or mislead the Siegels
about Jessica’s care at the time. Id. On re-cross examination, Dr. Ringer admitted that
he could have ordered a complete autopsy which would have included the head and brain.
Id., p. 277.
Daniel Siegel
{¶57} Daniel Siegel testified that he was in the room with his family and his wife
after Jessica had died. Trial transcript, p. 82. Nurse Smith told Daniel that Dr. Ringer
would like to speak with him. Id. Daniel left that room and went to another room across
from the nurses’ station near the ICU. Id., p. 82-83. Daniel testified:
Case No. 2009-09531JD -26- DECISION
Dr. Ringer asked me if I – if I ever considered – considered an
autopsy? And I said yes. And he said okay. And he – he explained it to
me and that. And I said to him I – I specifically expressed that I wanted a –
a full autopsy done. And he agreed.
Q. Why did you want a full autopsy done?
A. I wanted to know what – what happened to her. I mean, you
know, she went – she went downstairs that morning to have a tracheotomy
done . . . and, you know, seven hours later, she’s dead.
Id., p. 83.
Daniel further testified:
Well, after – after Dr. Ringer and I talked about the autopsy, said yes, and
Nurse Smith was standing there with the form. And we made it very clear
that it was going to be a full autopsy. She checked the box. . . . And doctor
– she checked the box where it says complete, including head and brain.
And then Dr. Ringer said, “well, Dan, just go ahead and sign it and Nurse
Smith will fill out the remaining amount.”
Id., p. 85.
{¶58} Daniel signed the form. Id., Plaintiffs’ Exhibit 6. Daniel testified that it was
his understanding that he would get a complete autopsy, based upon the language of the
authorization for autopsy and Nurse Smith’s checking the box on the form for a complete
autopsy. Trial transcript, p. 85-86. Daniel testified that Dr. Ringer was present when
Daniel signed the form. Id., p. 86. Daniel testified that “the scratch out of number eight
and the muscle biopsy for malignant hyperthermia” was not on the form when he signed
it. Id., p. 86-87. Daniel testified that neither Dr. Ringer nor anyone else at Good
Samaritan Hospital ever informed him that Jessica’s brain and head would be excluded
from examination during the autopsy. Id., p. 87.
{¶59} The Siegels received Jessica’s autopsy report in late December 2006. Trial
transcript, p. 96. Daniel testified that he was confused about the autopsy report and did
not know what “no head” meant. Id., p. 97; Plaintiffs’ Exhibit 7. Daniel testified that he
probably scanned over things in the autopsy report in December 2006 but did not
understand much of the medical terms. Trial transcript., p. 98. Daniel testified that both
Case No. 2009-09531JD -27- DECISION
he and Fran were confused about the autopsy report. Id., p. 99. After discussing his
confusion with his brother, Herb, he was referred to an attorney in Columbus named Paul
Scott. Id., p. 99-101. According to Daniel, Mr. Scott called him and talked to him
extensively about what had gone on. Id., p. 101. Daniel testified:
And I was explaining to [Scott] that, you know, they had – they had
taken her eyes without our permission. And just things that I didn’t
understand. And I asked him if he would, you know, would – would take a
look and see if he could see anything, because I – you know, that’s what I
– so he asked me to – he asked me to send him all the medical records.
Q. And was that the first time you got the 509 pages or so of the
record?
A. I – I called down – actually, my wife called down to Good
Samaritan Hospital and requested all the medical records. And I went down
and he – there was a certain amount of time I had to wait. I had to go down
and get them and they charged me I think it was like $200 or something like
that to – for the medical records, yes.
Q. Okay. And when you got those medical records of about 500
pages, did you and your wife read through all the medical records?
A. No.
Q. Okay. What did you do with them?
A. We sent them up to – we sent them up to Mr. Scott.
Id., p. 101-102.
{¶60} After Attorney Scott had a physician review the records, Attorney Scott sent
Daniel a letter stating that he was not going to take the case. Id., p. 103. According to
Daniel, Attorney Scott did not take the case because a complete autopsy was not done.
Id. Daniel testified that Attorney Scott recommended Attorney Joe Shea for a second
opinion. Id., p. 105. Although Daniel never spoke to Attorney Shea, Attorney Shea sent
him a letter stating that he was declining the case. Id.
{¶61} After Attorney Shea declined the case, Daniel was referred to his current
attorney, John Metz. Id., p. 106. Attorney Metz filed a lawsuit on the Siegels’ behalf
against LifeCenter Organ Donor Network, et al., in the Hamilton County Court of Common
Case No. 2009-09531JD -28- DECISION
Pleas on March 20, 2008. See Siegel, et al. v. LifeCenter Organ Donor Network, et al.,
No. A0802827 (Hamilton C.P. Mar. 20, 2008). Depositions of Nurse Smith and Dr.
Beckman were taken in that litigation on December 17, 2008, and January 19, 2009,
respectively.2 Trial transcript, p. 107.
{¶62} Daniel testified that the first time that he learned that Dr. Ringer had changed
the autopsy consent form was the date of Smith’s deposition. Id., p. 108. According to
Daniel, Attorney Metz filed a lawsuit against Dr. Ringer 30 days later in the common pleas
court. Id. Plaintiffs sued Dr. Ringer in the common pleas court on January 15, 2009. See
Siegel, et al. v. Andrew Joel Ringer, MD, et al., No. A0900450 (Hamilton C.P. Jan. 15,
2009). Plaintiffs filed their claim in the Court of Claims on December 16, 2009. Complaint.
{¶63} Daniel testified that he attempted to meet with Dr. Ringer after he was
provided with Jessica’s autopsy and medical records. According to Daniel, he called Dr.
Ringer’s office in September 2007, and made an appointment in October 2007. Trial
transcript, p. 109. However, when Daniel and Fran went there, Dr. Ringer was not there.
Id. When another appointment in October 2007 was scheduled, Dr. Ringer had an
emergency and was not able to make it. Id. So, another appointment was set for January
17, 2008, and Daniel and his sister-in-law, Mary Gulleman, met with Dr. Ringer. Id., p.
109-110. Daniel testified:
A. I had a – I had a number of questions I asked him. But the
two main questions that I wanted to know about because I was very
confused about it, I asked him if he knew about them taking Jessica’s eyes
for transplantation, and he said he didn’t know that. And then I asked him
do you know why they didn’t do a complete autopsy on Jessica? And he
said he didn’t know.
Q. You asked him that question directly; is that correct?
A. Yes. And then towards the end I asked him the same
question.
2 Although Attorney Metz repeatedly referred at trial to the date of these depositions as having
occurred in 2007, the deposition transcripts show that Nurse Amie Smith’s deposition was taken on
December 17, 2008, and Dr. Daniel Beckman’s deposition was taken on January 19, 2009. See,
Defendant’s Exhibit M-11 and Plaintiffs’ Exhibit 54, respectively.
Case No. 2009-09531JD -29- DECISION
Q. And what was his response then?
A. He said he didn’t know why. And he told me – he says but I’ll
find out, Dan, and I’ll get back to you.
Q. And did he ever get back to you?
A. No, he didn’t.
Id., p. 110.
{¶64} On cross-examination, Daniel admitted that Dr. Ringer told him that during
the August 14, 2006 procedure, he had punctured an artery, and thus, Daniel knew that
Dr. Ringer had made a mistake. Trial transcript, p. 119. Daniel also testified that
Dr. Levine kept him informed about Jessica’s condition throughout her August 2006
hospitalization, including that Jessica had a brain bleed, a seizure, and a hematoma. Id.,
p. 121.
{¶65} After Jessica’s death, Drs. Levine and Ringer talked to Daniel and explained
what had happened. Id. According to Daniel, Dr. Ringer stated that they tried to
resuscitate Jessica but were unsuccessful. Id., p. 122. Daniel testified that Dr. Ringer
requested his consent for an autopsy. Id. Daniel agreed that Dr. Ringer told him that he
had a concern that Jessica’s cause of death was malignant hyperthermia because she
had had a high fever before she died. Id., p. 123. Daniel agreed that one of the reasons
for the autopsy was to take a muscle biopsy to test for malignant hyperthermia, because
it might be hereditary. Id. Although Daniel testified that he told Dr. Ringer that he wanted
a full autopsy and that Dr. Ringer approved of that, Daniel stated that Dr. Ringer never
said the words “complete autopsy” to him. Id., p. 123-124. Daniel testified that Nurse
Smith did not discuss the autopsy with him but that she had him sign the paperwork for
it. Id., p. 124. According to Daniel, the only writing on the form when he signed it was
the check mark for a complete autopsy. Id. Daniel testified that when he signed the form,
the box was checked, both Dr. Ringer and Nurse Smith were present, and Dr. Ringer
said, “Well, just go ahead and sign the form and Nurse Smith will take care of the rest of
it.” Id., p. 124-125.
{¶66} Daniel testified that he received a letter from Dr. Ringer dated August 31,
2006, where Dr. Ringer offered to discuss Jessica’s case and answer any questions. Id.,
p. 127-129; Defendant’s Ex. B p. 28. Daniel testified:
Case No. 2009-09531JD -30- DECISION
Q. Would you think that as you’re now saying Dr. Ringer had a –
or as your attorney is saying had a scheme to hide the cause of Jessica’s
death, do you think this would be a logical thing for him to do, to write you
a letter saying come in and talk to me?
A. No.
Q. Okay. That doesn’t make any sense, does it?
A. But I don’t know what his – I can’t talk for Dr. Ringer.
Trial transcript, p. 129.
{¶67} Daniel testified that he had to go to the hospital to pick up a copy of the
autopsy report in December 2006. Id., p. 130. Contrary to his testimony at the evidentiary
hearing eleven years ago, where Daniel testified that he did not read the autopsy report
for approximately one year after Jessica’s death (May 15, 2013 immunity hearing
transcript, p. 132-133; See also, Siegel v. State, 2020-Ohio-4708, ¶ 17 (10th Dist.), Daniel
testified:
Q. Okay. And you picked that up and brought it home. But you
didn’t read it right away, true?
A. Not right away.
Q. It was a good while, like maybe a year or more?
A. No.
Q. No, it wasn’t?
A. No.
Q. Okay. And had you read it, the first page of it, right here where
it says Reason for autopsy: Requested by physician, autopsy restrictions.
It says “none” and then under in caps it says “NO HEAD.” And had you
read it when you got it in December, you would have known that they didn’t
do an autopsy of Jessica’s head or brain?
A. I don’t – I don’t think I would have came to that conclusion
from that. I didn’t – that was – that’s confusing. I don’t know what that
means.
Case No. 2009-09531JD -31- DECISION
Q. Okay. And had you looked through any of the rest of the
report – and I think it’s like six or seven pages – you would have seen there
was no examination of the head, true?
A. I don’t recall that.
Q. You don’t recall that?
A. I don’t recall that – what I recall more than anything was the
fact that the pathologist said that they removed her eyes for transplantation,
but whatever the – whatever the wording is.
Q. Okay. And did you remember reading the part here where it
talks about the malignant hyperthermia that Dr. Ringer mentioned as one of
the potential causes of death? Did you ever read that?
A. I can’t recall what I read on that autopsy. That’s been – it’s
such a long time ago. I can’t remember that.
Q. Sure. But it’s an important issue in this case, isn’t it?
A. Well, it is now.
Q. Yeah. And it was back in 2013 when we took your testimony
at the immunity hearing, true?
A. Uh-huh.
Q. And it was an important issue back when your deposition was
taken in 2008, too, true also?
A. It was an important issue because of what I stated, yes.
Q. Now, had you looked through the autopsy report at all – and
I’m just going through it real quickly – that’s where you learned that the eyes
had been taken unfortunately?
A. Yes.
Q. And did you – did you learn anything – if you had looked, did
you see anything here about the head or brain not being examined?
A. No, I didn’t.
Trial transcript, p. 130-132.
Case No. 2009-09531JD -32- DECISION
{¶68} Daniel testified that he did not read the autopsy report when he received it,
even though at the same time he was very concerned that something in Jessica’s brain
had caused her death. Id., p. 134.
{¶69} Daniel did not dispute that Dr. Ringer sent a second letter, dated January 25,
2007, which again invited the Siegels to contact him to discuss Jessica’s care.
Defendant’s Exhibit B., p. 29. By that time, Daniel had contacted Attorney Scott. Id.,
p. 135. In a letter dated January 8, 2007, Scott asked Daniel to send him Jessica’s
medical records, and explicitly stated that there were time limits to filing a lawsuit,
including a one-year statute of limitations for filing a medical malpractice claim, and a two-
year statute of limitations for filing a wrongful death claim. Id., Plaintiffs’ Exhibit 13B.
{¶70} Although Daniel could not recall when he received Jessica’s death
certificate, he did receive it at some point, because Attorney Scott asked Daniel to provide
him with it. Trial transcript, p. 136; Plaintiffs’ Exhibit 13B. Daniel admitted that the death
certificate that contains Dr. Ringer’s handwriting states, “Medical treatment of AVM” in the
part that asks “Describe How Injury Occurred.” Defendant’s Exhibit B, p. 024. When
asked whether Dr. Ringer would have written that if he were trying to hide the cause of
Jessica’s death, Daniel did not directly answer, but agreed that he thought that Jessica
had died as a result of medical treatment of the AVM. Trial transcript, p. 137-138.
{¶71} Daniel testified that when he finally met with Dr. Ringer, he asked him about
why Jessica’s eyes had been taken, and Dr. Ringer stated that he did not know. Id., p.
138-139. With regard to the limitation on the autopsy, Daniel testified:
Q. And with reference to the autopsy authorization and it being
limited to everything but the brain, did Dr. Ringer tell you that he didn’t recall
why it was that way?
A. That the autopsy request form wasn’t that way?
Q. Yeah. That he didn’t recall that?
A. Did he tell me that?
Q. Yes, sir.
A. No.
Q. He didn’t say that?
A. Not to me.
Case No. 2009-09531JD -33- DECISION
Q. If he’ll testify to that, do you not believe that to be true?
A. I – you know, that’s – that’s up to Dr. Ringer.
Id., p. 139.
{¶72} Daniel testified that he had sent medical records to Attorney Scott and then
Attorney Shea in the timeframe of January to April 2007, with the intent to see if they
could file a lawsuit about Jessica’s care and her death. Id., p. 140. The letter from
Attorney Scott declining the case is dated April 1, 2007. Plaintiffs’ Exhibit 13F. The letter
from Attorney Shea declining the case is dated June 15, 2007. Plaintiffs’ Exhibit 14.
Daniel admitted that by the time he met with Dr. Ringer, he had corresponded with two
attorneys and had sent them Jessica’s medical records because his intent was to see if
they could file a lawsuit about Jessica’s care and her death. Trial transcript, p. 140.
Daniel admitted that the attorneys investigated potential medical malpractice and
wrongful death lawsuits. Id. However, Daniel denied thinking at the time that Dr. Ringer
had done something wrong and had caused Jessica’s death. Id., p. 140-141. Daniel
testified that he did not have any reason not to trust Dr. Ringer when he met with him.
Id., p. 141. Daniel testified that although he had the medical records with the operative
report that showed that Dr. Ringer performed the embolization surgery, he had an
assistant, Dr. Khan, so he does not know to this day exactly who performed the
procedure. Id. Daniel admitted that he would assume that either Dr. Ringer or Dr. Khan
performed the procedure. Id.
{¶73} Daniel testified that when he received the medical records to send to
Attorney Scott, he scanned through them and saw a lot of things he did not understand
because he does not have the background for it. Id., p. 142. However, Daniel testified in
his April 28, 2023 deposition that when he received Jessica’s medical records to send to
Attorney Scott, which would have been between January and April 2007, he went through
them and noticed on the autopsy authorization that part of the form was “scratched out,”
and that was the first time that he knew that the autopsy authorization had been changed.
Id., p. 144-145. At trial, Daniel testified:
Q. . . . So what you said then is before April of ‘07 was the first
time you noticed that the autopsy authorization had been changed, right?
A. Okay.
Case No. 2009-09531JD -34- DECISION
Q. And that’s what you said back then?
A. Okay.
Q. Today you’re saying something different, right?
A. Well, the fact that I saw it was scratched out, that – that
doesn’t mean I reacted to that – on it like that. I don’t – I just noticed it was
scratched out. Why, I didn’t know.
Id., p. 145-146.
{¶74} Daniel testified that although he agreed in his April 2023 deposition that the
only other signatures on the authorization for autopsy were those of Nurse Smith and
Dr. Ringer, and that one of those two people had to have scratched out the words
“complete autopsy,” Daniel could not say for sure if that was true. Id., p. 146. At trial,
Daniel also stated that he did not know whether Nurse Smith scratched out the words
“complete, including head and brain,” wrote “error, AS” and then wrote the date and time
on the autopsy authorization, because he was not there to witness it. Id., p. 147.
{¶75} Daniel testified that the letter from Attorney Scott, dated April 1, 2007,
explained the one-year statute of limitations for a medical malpractice claim and the two-
year statute of limitations for a wrongful death claim. Id., p. 148; Defendant’s Exhibit M-
5. However, Daniel denied thinking anything about that at the time. Trial transcript, p.
148. According to Daniel, he asked Attorney Scott to look at Jessica’s medical records
to see if there was anything that went wrong. Id., p. 149. Daniel knew that Jessica’s eyes
had been taken. Id. Daniel admitted that he was concerned about Jessica’s care at Good
Samaritan Hospital in general, not necessarily only by Dr. Ringer. Id., p. 152. Daniel did
not know whether any of his claims for medical negligence had been timely filed. Id., p.
154.
{¶76} On redirect, Daniel reiterated that the first time he found out that Dr. Ringer
had limited the autopsy to exclude the brain was during Nurse Smith’s deposition, which
was taken on December 17, 2008.3
3 Again, Nurse Smith’s deposition was taken on December 17, 2008, not 2007, as stated repeatedly
in the trial transcript by Attorney Metz.
Case No. 2009-09531JD -35- DECISION
{¶77} On May 15, 2013, during the evidentiary hearing on the issue of Dr. Ringer’s
immunity, Daniel testified that when he finally received the autopsy, it took him quite a
while to even open it up to read it. Plaintiffs’ Exhibit 26, p. 116. When he eventually met
with Dr. Ringer, Daniel asked him why no autopsy of the brain was done, and why
Jessica’s eyes were taken for transplantation. Id., p. 118. According to Daniel, Dr. Ringer
said he did not know why the brain was not examined and did not know that her eyes had
been taken. Id.
Frances Siegel
{¶78} Frances testified that approximately two months after Jessica’s death, the
Siegels had not received an autopsy report, so she called Good Samaritan Hospital about
it. Trial transcript, p. 563-564. Frances testified that she and Daniel received a copy of
the autopsy report in December 2006. Id., p. 564. Frances testified that she and Daniel
do not have any medical or pathological training, but Frances noticed the following
irregularities in the autopsy report: Jessica’s height was 5 feet, 3 inches, but the autopsy
report stated she was 5 feet, 10 inches tall. Id., p. 564. The autopsy report stated that
her eyes had been enucleated. Id., p. 565. The autopsy report stated, “no head.” Id.
Frances thought, “is this the right autopsy report? I thought, did they make a mistake?
Did they send us somebody else’s autopsy report? I didn’t know what to think. And Dan
and I looked it over and we said somebody’s got to look at this. This doesn’t make sense.”
Id., p. 565.
{¶79} Because the Siegels had questions about the autopsy report, they asked for
a copy of the medical records. Id., p. 566. Once they obtained the medical records, they
started reviewing the records, which totaled 509 pages. Id. The Siegels did not
understand the medical terminology, so they asked Daniel’s brother, Herb Siegel, to refer
them to an attorney, and he referred them to Attorney Paul Scott. Id., p. 567. Frances
testified: “And the reason we went to him [Attorney Scott] not – I mean, we weren’t looking
to sue anybody. We were looking for somebody to look over the medical records and the
autopsy report to see if somebody sent us something wrong and actually to explain to us
about these medical records.” Id., p. 567.
Case No. 2009-09531JD -36- DECISION
{¶80} Frances testified that she was not present when Attorney Scott discussed
Jessica’s case with Daniel. Id., p. 567-568. According to Frances, after Attorney Scott
requested the medical records, he rejected the case because he did not have enough
information. Id., p. 568. Frances did not have any direct contact with Attorney Shea but
understood that he declined to take the case as well. Id. p. 568-569. After being rejected
by two law firms, Frances did not know what to do. Id., p. 569. But she and Daniel were
both concerned because Jessica’s eyes had been taken. Id. Herb Siegel asked his boss
at the time, Joe Deters, for a referral and the Siegels were referred to their current
counsel, John Metz, who filed a case against the eye bank. Id.
{¶81} Frances testified that the first time she learned that Dr. Ringer was the one
that decided to limit the autopsy and exclude the brain was after Amie Smith’s deposition
was taken, and Attorney Metz showed the Siegels the consent form. Id., p. 571. Frances
testified that she never saw the form in the 509 pages of the medical records. Id. Frances
testified that when she learned that Dr. Ringer had limited the autopsy, she was shocked
because she thought that Dr. Ringer was going to order a complete autopsy because
Jessica had suffered a brain bleed. Id. Although Frances testified that she knew that
Daniel had met with Dr. Ringer several months earlier and that he had asked Dr. Ringer
about why a full autopsy was not conducted, Frances did not attend the meeting with Dr.
Ringer herself. Id., p. 571-572. Frances testified that the first time that she learned that
Dr. Ringer had discussed a limited autopsy with Dr. Beckman was during Dr. Beckman’s
deposition in the eye bank case. Id., p. 572. Dr. Beckman was deposed on January 19,
2009. Plaintiffs’ Exhibit 54. Frances testified that in the many years of trying to learn the
medical truths in this case, she believes that she and Daniel are “indebted” to Attorney
Metz for close to $100,000 for hiring experts. Id. p. 583.
{¶82} On cross-examination, Frances testified that she did not know whether she
owed Attorney Metz $100,000, and that she has not paid any of those expenses to date.
Id., p. 584-586. Frances did not remember signing a fee contract with Attorney Metz. Id.,
p. 586-587.
{¶83} Frances testified after Jessica died, Frances did not know whether the
coroner’s office was called, and she was not present for the conversation between Daniel
and Dr. Ringer. Id., p. 587-588. Frances stated that after Daniel had a conversation with
Case No. 2009-09531JD -37- DECISION
Dr. Ringer, Daniel told her, “we’re going to do an autopsy; is that ok with you,” or
something to that effect. Id., p. 588.
{¶84} Frances stated that she received the autopsy report in December 2006, and
that when she looked at it, she noticed that Jessica’s height was wrong, and then she
proceeded to look at the rest of it and noticed two other things. Id., p. 589-590. First, she
noticed that the autopsy report stated that Jessica’s eyes had been removed for
transplantation. Id., p. 590-591. Frances was shocked because she thought that Daniel
had told the organ donation company that the Siegels were not going to give any donation.
Id., p. 590-591. Second, Frances noticed that under “autopsy restrictions” it says “none,
no head.” Id. Frances testified that she received the autopsy report around the same
time that she received Jessica’s medical records. Id., p. 591-592. Frances stated that
when she looked at the autopsy report and the medical records, she decided that she
wanted to find out what was meant by some of the things she did not understand, so the
Siegels contacted Herb Siegel and were referred to Attorney Scott. Id., p. 592. Then,
Attorney Scott reviewed the records and autopsy report and Attorney Scott sent them a
letter stating that he was not able to help, and informed the Siegels about the time limits
on filing different lawsuits. Id. p. 592-593. Frances testified that despite Attorney Scott’s
letter, the Siegels weren’t really paying any attention to the time limits for filing a medical
negligence or wrongful death lawsuit because they weren’t thinking about a lawsuit; they
were thinking that something was wrong with the autopsy report. Id., p. 593. Frances
stated that after Attorney Scott’s April 1, 2007 letter, the Siegels contacted Attorney
Shea’s office and Jessica’s medical records were sent to Attorney Shea. Id. Attorney
Shea sent them a letter dated June 15, 2007, stating that he could not help either. Id.
{¶85} Frances testified that the Siegels were not thinking about the statute of
limitations for a medical malpractice case even though the statute of limitations would
expire roughly two months after the date of Attorney Shea’s letter, because they were on
a fact-finding mission, trying to find out if somebody could read these
medical reports and tell us what had happened. And the only way to do that
is I think we had already went to Dr. Ringer, he didn’t answer a lot of the
Case No. 2009-09531JD -38- DECISION
questions.4 And he – you know, so we went to an attorney thinking they
could look at this autopsy report and see if – if something was wrong with it
or if indeed it was the correct autopsy report. That was my understanding.
Id., p. 594.
{¶86} Frances testified that she first went to see Attorney Metz sometime in 2008.
Id., p. 594. Frances believed that Daniel met with Dr. Ringer before she and Daniel met
with Attorney Metz, but she was unsure of the dates. Id., p. 594-596. The Siegels filed
suit against the eye bank in March 2008. Id., p. 596-597. Frances testified that at the
time, she was not concerned about the wrongful death statute of limitations that Attorney
Scott informed them about twice, which would expire about five months after they filed
suit against the eye bank. Id., p. 597. Frances did not know why the depositions of Amie
Smith and Dr. Beckman did not occur until December 2008, even though Attorney Metz
filed suit against them in March 2008.5 Id., p. 597-598. Frances was aware that the
lawsuits against Dr. Ringer and Mayfield Clinic filed in Hamilton County in January 2009,
and the claims for medical malpractice and wrongful death filed in the Court of Claims in
December 2009, have been dismissed based upon the applicable statutes of limitations.
Id., p. 598-599.
{¶87} Frances attended Daniel’s deposition in April 2023, where Daniel testified
that he knew the autopsy authorization had been scratched out sometime before April
2007, but she did not tell Daniel that his testimony was inaccurate. Id., p. 599-600.
Frances testified that she knew his testimony was incorrect at the time because there was
no way he could have known that, but she did not tell him to correct his testimony. Id.
{¶88} In the immunity hearing, Frances Siegel testified that the first time she
learned of the eyes being harvested was when her husband read the autopsy report,
which she estimated was in December 2007 or January 2008. Immunity hearing
transcript, p. 154-155. Her testimony at trial shows that she and her husband read the
autopsy report in December 2006. Trial transcript, p. 564-565.
4 The date of the meeting with Dr. Ringer was January 17, 2008, months after Attorneys Scott and
Shea declined to take Jessica’s case.
5 Although Amie Smith’s deposition was taken on December 17, 2008, Dr. Beckman’s deposition
was taken on January 19, 2009.
Case No. 2009-09531JD -39- DECISION
Magistrate’s Findings About Events That Occurred on August 23, 2006
{¶89} Upon review of the evidence regarding the events on the day of Jessica’s
death, the magistrate finds that although the Hamilton County Coroner’s Office does not
have documentation that a call was made, a preponderance of the evidence shows that
Dr. Levine telephoned the coroner’s office, and that the coroner’s office did not take
Jessica’s case. The magistrate makes this finding despite the testimony of Andrea Hatten
because the magistrate is persuaded by Dr. Levine’s testimony, the medical records,
Nurse Smith’s deposition with attached exhibits, and the written transcription of Nurse
Smith’s recorded telephone conversation with a representative from the organ donation
company. The magistrate finds that Dr. Levine’s testimony that he called the coroner was
credible. The magistrate also finds credible Dr. Levine’s testimony that he would not and
did not falsify medical records. Furthermore, Dr. Levine’s notes in the medical record
reflect that the coroner was called and declined an autopsy. The magistrate further finds
credible Nurse Smith’s statement to the organ donation employee that a call was being
made to the coroner’s office while she was on the phone with the organ donation
employee. In addition, Nurse Smith indicated on a form in the medical record that it was
not a coroner’s case. Smith Deposition, Exhibit 5, p. 56/63. Furthermore, the magistrate
finds that of the five examples of deaths that were documented as reported to the
Hamilton County Coroner’s office on August 23-24, 2006, two of those individuals died in
a hospital setting. See Exhibits D-1 through D-5 of Hatten’s Deposition. Both the
individual who died in the emergency room at Mercy Franciscan-Western Hills and the
individual who died at the emergency room at Mercy Hospital Anderson were classified
as non-coroner cases, and no immediate cause of death was noted in either case. Id.
Hatten testified that her office would not perform an autopsy if a physician, not in the
coroner’s office, was signing the death certificate. Hatten Deposition, p. 15. Dr. Ringer
signed the death certificate in this case. This evidence is persuasive to the magistrate
that the coroner’s office rejected Jessica’s case although the coroner’s office does not
have a death record for Jessica Siegel. Therefore, although there is conflicting evidence
on this fact, the magistrate finds that Dr. Levine contacted the Hamilton County Coroner’s
Case No. 2009-09531JD -40- DECISION
office on the night that Jessica Siegel died, and that the Hamilton County Coroner’s office
declined Jessica’s case.
{¶90} However, the magistrate further finds that if Jessica’s case had been
accepted by the coroner’s office, a full autopsy would have been conducted. Andrea
Hatten’s testimony on this point is undisputed. The magistrate further finds that the
testimony of Nurse Smith was more credible and accurate than the testimony of either
Daniel Siegel or Dr. Ringer regarding how the authorization for autopsy form was filled
out, because Nurse Smith was responsible for filling out the death packet as part of her
job duties. Nurse Smith testified credibly that Daniel Siegel signed an incomplete form
because the Siegels wanted to leave the hospital before Nurse Smith had completed the
necessary forms. The magistrate further finds that Daniel Siegel signed an autopsy
authorization that had no limitation on it before leaving the hospital, that the authorization
form gave consent for a “complete autopsy” as stated on the form, and that Dr. Ringer
did not limit the form until after the Siegels left the hospital. The magistrate further finds
that Dr. Ringer limited the autopsy but did not explicitly inform the Siegels that he was
going to limit it. Although the magistrate finds that Dr. Ringer did express the specific
concerns he had about Jessica’s death to Daniel Siegel when Dr. Ringer obtained
consent for an autopsy, the magistrate further finds that Dr. Ringer did not explicitly tell
Daniel Siegel that the autopsy he requested would exclude Jessica’s brain.
{¶91} The magistrate further finds Daniel Siegel’s testimony that he orally
requested a “complete autopsy” was not credible. First, the form authorizes a complete
autopsy, so there would be no need for Daniel Siegel to specify that. Second, Nurse
Smith testified credibly that she check-marked the box, “complete, including head and
brain” while she orally stated that to Dr. Ringer, after the Siegels had left the hospital.
Daniel Siegel’s testimony that the “complete” box was check-marked when he signed it
was not credible in light of Nurse Smith’s testimony. The magistrate finds that it is more
likely than not that Daniel Siegel signed the authorization form and assumed that a
complete autopsy would be conducted, because the form specifically states that he
authorized a complete autopsy and because Dr. Ringer did not explicitly tell Daniel Siegel
that he intended to exclude examination of the head and brain. Furthermore, the
magistrate finds that Nurse Smith also assumed that a complete autopsy would be
Case No. 2009-09531JD -41- DECISION
conducted, because she initially checked the box for complete autopsy. The magistrate
finds that after Dr. Ringer directed Nurse Smith to limit the autopsy to the thorax and
abdomen and to add a muscle biopsy, Nurse Smith corrected the form and wrote her
initials and the date. However, the magistrate further finds that Dr. Ringer did not contact
the Siegels to explicitly inform them that the autopsy had been limited. The magistrate
also finds that Dr. Beckman’s testimony was credible, that he was bound by the limitation
on the authorization for the autopsy, and he was not authorized to remove the brain for
examination.
{¶92} To summarize, the magistrate finds that Dr. Levine contacted the Hamilton
County Coroner’s Office about Jessica Siegel’s death, but the coroner’s office did not
accept Jessica’s case. The magistrate further finds that after Dr. Ringer was informed
that the coroner had rejected the case, Dr. Ringer discussed with the Siegels his specific
concerns about Jessica’s sudden death and asked Daniel Siegel for his permission to
obtain an autopsy to determine whether Jessica died from a cardiac issue, a pulmonary
issue, or from malignant hyperthermia. The magistrate further finds that Daniel Siegel
signed an authorization form which did not contain any limitation on the autopsy, and that
Dr. Ringer did not explicitly inform the Siegels that any limitation would be placed on the
autopsy. The magistrate further finds that Dr. Ringer admitted that a full autopsy could
have been performed if he had not placed a limitation on the autopsy. The magistrate
further finds that it was Dr. Ringer’s sole decision to limit the autopsy, and he exercised
his professional judgment when he decided that an examination was not necessary
because of the many CT scans of Jessica’s brain that were already contained in the
medical records. Accordingly, the magistrate finds that it was reasonable for the Siegels
to expect that a complete autopsy would be performed when they left the hospital on
August 23, 2006. The question becomes whether it remained reasonable for them to rely
on that expectation after the autopsy report and medical records were provided to them
four months later.
Events That Occurred After Jessica’s Autopsy and Medical Records Were Provided
to Plaintiffs
Case No. 2009-09531JD -42- DECISION
{¶93} Paul O. Scott testified that he graduated from Capital Law School in 1974
and practiced law until he closed his office in 2014. Scott’s CV is Plaintiffs’ Exhibit 13H.
Although he has “basically retired,” Scott still maintains his Ohio law license and averages
one case per year. Scott was a partner at Clark Perdue and practiced in the field of
medical malpractice for many years.
{¶94} Scott testified that he came into contact with the Siegel family in 2007. Scott
had a telephone conversation with either Mr. or Mrs. Siegel. Id., p. 298. As a result of
the conversation, Scott sent the Siegels a letter, dated January 8, 2007, asking for
Jessica’s medical records. Plaintiffs’ Exhibit 13B. According to Scott, he made it clear
that he would perform a preliminary screening to see whether he was willing to investigate
the case at all. Trial transcript, p. 300. Scott cautioned the Siegels about the one-year
statute of limitations for medical malpractice claims and the two-year statute of limitations
for wrongful death claims in his first letter. Id. Scott stated that the statute of limitations
is very complicated, and it is a difficult decision as a lawyer about how much to explain it
to a potential client, but he thought it was the best practice to try to identify the statute of
limitations for potential clients. Id., p. 302.
{¶95} Scott testified that on January 29, 2007, he sent Jessica’s medical records,
death certificate, autopsy report, and some notes that the Siegels had written, to Tom
Syzek, M.D., an emergency room physician, for a preliminary screening which would
determine whether Scott was willing to investigate the matter further. Plaintiffs’ Exhibit
13C; Trial transcript, p. 304-305. Scott had used Dr. Syzek before for preliminary
screenings and testified that he was impressed with Dr. Syzek’s concise medical/legal
analysis. Trial transcript, p. 304. Scott sent the Siegels a letter on February 7, 2007, to
inform them that Jessica’s records were being reviewed by a screening physician. Id., p.
305; Plaintiffs’ Exhibit 13D.
{¶96} Scott testified that he recorded a telephone conversation with Dr. Syzek to
discuss Jessica’s medical records on March 16, 2007, a transcription of which is
contained in a file memorandum. Trial transcript, p. 305-306; Plaintiffs’ Exhibit 13E. The
transcript of the telephone call goes into detail about what Dr. Syzek analyzed from
Jessica’s medical records. Plaintiffs’ Exhibit 13E. Scott testified that the memorandum
summarized the problems that he and Dr. Syzek saw, including whether there was a
Case No. 2009-09531JD -43- DECISION
deviation from the standard of care, the number of expert witnesses necessary for a case,
the lack of an autopsy of the brain, the cause of Jessica’s high fever, problems with the
tracheostomy, and the concern about malignant hyperthermia. Trial transcript, p. 306-
307. Scott testified:
I wasn’t willing to investigate it because I didn’t have the mechanism of
death. Now, that is not my words, other legal words inextricably intertwined
with the standard of care; they kind of go hand in hand. You can’t kind of
prove the one without the other. You’ve got to have this mechanism of
death to go forward in this kind of case.
...
And I think a fair reading of the memorandum – even though it’s not
mentioned frequently, a fair reading is the investigation is inhibited or
disrupted because we don’t have a mechanism of death. We don’t have a
clear forensic analysis of what caused Jessica’s death.
Id., p. 307-308.
Scott continued:
Q. And how important was it from your legal analysis of this case to not
have a complete autopsy?
A. It was very important, and I think that’s echoed by Dr. Syzek. When
he uses that term that caught my attention again when I reviewed it, “missed
the whole boat” because they don’t have an autopsy of the brain.
Id., p. 309.
{¶97} The magistrate notes that in file memorandum, which is dated March 16,
2007, Dr. Syzek states the following:
Yes. You are correct in that I saw no autopsy of the brain. It is to me
extraordinarily unusual – it’s missing the whole boat in my viewpoint. My
immediate thought was if you are going – if this needs to be pursued, that
brain should have or should be autopsied. I guess it’s probably too late, but
there is also some confusion over that the father give consent or request
not to have consent so I think there is an issue over the family felt that they
gave consent and yet I didn’t see it, but apparently there is something in
Case No. 2009-09531JD -44- DECISION
there where it is checked no autopsy on the brain. It will be difficult to prove
a case – well, it is going to be very helpful evidence had there been a brain
autopsy to see how bad the extent of the damage, where the – they can
anatomically see where the complications occurred and dissect down to
microscopic level to see what happened during the surgery and now that
opportunity is lost.
Plaintiffs’ Exhibit 13E, p. 5.
{¶98} Scott testified that these kinds of cases are very expensive because of the
number of expert witnesses in specialized areas of medicine that are required. Id., p. 309-
310. Scott also testified that Jessica’s case was very high tech and complicated. Id., p.
314. Scott testified that the requirement of filing an affidavit of merit from a physician in
the same specialty is also difficult. Id., p. 315.
{¶99} After the telephone conversation with Dr. Syzek, Scott wrote a letter to the
Siegels, dated April 1, 2007, declining Jessica’s case. Id., p. 316; Plaintiffs’ Exhibit 13F.
The letter states, in pertinent part, as follows:
Our laws require that the patient/plaintiff clearly prove, by expert witnesses,
that the defendant’s care was below the prevailing standard of care that
other doctors in that specialty would provide. Secondly, and sometimes
with more difficulty, we must prove that this departure from standard care is
what caused, directly or indirectly, the particular injuries the patient claims
are a result of treatment. The expert testimony necessary to prove the first
two issues must be provided by a medical practitioner with the same or
similar background and specialty as that of the defendant. All these medical
and legal factors can only be put together after a detailed and expensive
review of many medical records.
The information we have obtained on your claim has been considered
against the legal requirements described above and from the standpoint of
our experience in past claims. Unfortunately, we have concluded that your
claim does not meet our present criteria for recommending further action,
Case No. 2009-09531JD -45- DECISION
either by further investigation or by the filing of a formal claim. As a result,
we regret we cannot undertake your representation. We cannot help.
Please remember that law, like medicine, often involves differences of
opinion. Our decision does not mean that you do not have a cause of action,
but only that it is our business decision not to handle the claim. We do
encourage you to seek other opinions, and to do so quickly.
Your situation involves a claim for wrongful death. There is a one-year
time limitation within which your medical malpractice claim must be
filed. There is a two-year time period, from the date of death, for filing a
wrongful death claim caused by medical negligence. However, any claim
for pain and suffering or other losses is controlled by the one-year limit.
The one year time period begins to run either (1) when the patient discovers
or, in the exercise of reasonable care and diligence should have discovered,
the resulting injury, or (2) when the physician-patient relationship for the
condition terminates, whichever occurs later. Although there is an
exception, there is a general rule that an action for medical malpractice must
be commenced no later than four years from the date of the occurrence,
regardless of when you discover the injury or terminated your patient
relationship with your health care provider. If you do not commence your
claim on time, you will be forever barred from presenting a claim.
(Emphasis in original.)
{¶100} Scott testified that he was trying to be very careful with his words to the
Siegels; that he tried to give them a little detail about how difficult medical malpractice
cases are; and that he concluded that their case didn’t meet the present criteria standards
by recommending either further investigation or filing a case. Trial transcript, p. 317.
Scott explained that he was not saying that the Siegels did not have a case, but, rather
that his law firm was not willing to investigate the case. Id. Scott testified that the rest of
the letter tries to explain the applicable statutes of limitations for medical malpractice and
wrongful death claims. Id., p. 317-318.
Case No. 2009-09531JD -46- DECISION
{¶101} Scott further testified that he wrote a letter to Attorney Joe Shea on April 1,
2007, where he forwarded Jessica’s records, including insurance information, the autopsy
report, the death certificate, family notes, and the medical records from Good Samaritan
Hospital. Plaintiffs’ Exhibit 13G. Scott testified that he wanted to act very quickly to get
the Siegels an outstanding lawyer in the Cincinnati area. Trial transcript, p. 319. Scott
testified that this ended his connection with the Siegel family. Id., p. 320.
{¶102} Scott testified, over defendant’s objection and motion to strike:
Q. Back in 2007 had you had a complete autopsy, would that
have changed your review of the case leaning more toward further
investigation and possibly taking the case?
...
A. It’s possible, but the autopsy in theory could have helped the
doctor. I don’t have the mechanism of death. If the autopsy came out
saying here’s what – make it up. The autopsy comes out and says here’s
the problem, it’s the tracheostomy.
Q. Uh-huh.
A. That could have in a sense led me in a different direction.
Q. Right.
A. Or the autopsy could say here’s what happened, and I
wouldn’t see any clear deviation from the standard of care. Maybe the
autopsy would pinpoint where the bleeding was, pinpoint where the
hemorrhaging is, and it might have fit into a cycle. So I don’t know if the
autopsy would have helped or hurt. But I can say that it interrupts, you
know, and it interferes with the investigation.
Id., p. 322.
{¶103} On cross-examination, Scott testified that you don’t necessarily need an
autopsy in a wrongful death or medical malpractice case to file suit. Id., p. 324; 342.
Scott was investigating this case as a potential medical malpractice/wrongful death case,
with the main focus on the neurosurgeon. Id., p. 324-325. Scott testified that the statute
of limitations is so important to a client because you lose your claim forever if the case is
not timely filed, and that is why he explained the statute of limitations to the Siegels in
Case No. 2009-09531JD -47- DECISION
both letters. Id., p. 327. Scott testified that an attorney could get sued for missing the
statute of limitations. Id., p. 323-324. Scott testified that in reviewing the medical records
he saw that the autopsy authorization had some crossed-out portions. Id., p. 327-328.
{¶104} With regard to Dr. Syzek, Scott testified that he sent Jessica’s medical
records for review on January 29, 2007. Defendant’s Exhibit M3; Trial transcript, p. 329.
Scott testified that Dr. Syzek was an emergency room physician who ran Midwest
Medical/Legal Consultant Service in Cincinnati, Ohio. Trial transcript., p. 329. Scott
testified that if he had decided to sue Dr. Ringer, he would have had to obtain an affidavit
of merit from a neurosurgeon, not an emergency room physician. Id., p. 330. Scott was
aware of groups such as MedQuest in New York or Saponaro that provide expert medical
services to review medical negligence cases for plaintiffs’ attorneys, but he did not
engage in their services for this case. Id., p. 330-331.
{¶105} With regard to the recorded interview with Dr. Syzek, Scott testified that out
of the five-page document of the transcript of the call, only ten lines discuss the fact that
an autopsy of the brain was not conducted. Id., p. 332-333; Defendant’s Exhibit M4. Scott
acknowledged that the rest of the document discusses the medical procedures and
whether the medical treatment was below the standard of care or whether causation could
be proved. Trial transcript, p. 333. Scott acknowledged that he stated in the recording
that in his opinion, “we have major issues with standard of care, we have major issues
with causation, major issues with life expectancy, and this highly unusual additional
complication with the anesthesia and the tracheotomy.” Defendant’s Exhibit M4, p. 6;
Trial transcript, p. 333. Scott admitted that those were his major issues in this case and
in its investigation. Trial transcript, p. 333. Scott acknowledged that Jessica underwent
a difficult surgery; that Scott was concerned about the number of experts he would have
to hire to prosecute the case; that there was difficulty in proving the cause of death; and
that there was difficulty proving a standard of care deviation. Id., p. 333-334. Notably,
Scott testified that in his April 1, 2007 letter to the Siegels, he did not specifically tell the
Siegels that he could not investigate the case any further because there was not a
complete autopsy. Id., p. 334-335; Defendant’s Exhibit M5. Scott testified that the lack
of a complete autopsy was not the sole reason he declined to investigate Jessica’s case
any further. Trial transcript, p. 340.
Case No. 2009-09531JD -48- DECISION
{¶106} Joseph W. Shea III graduated from Chase law school in 1974, passed the
Bar Exam in June 1974, and has practiced civil litigation, with a focus on medical/legal
matters. Id., p. 481. Shea is currently licensed and practices in Kentucky and Ohio and
has known and respected Attorney Paul O. Scott for several years. Id., p. 481-482.
{¶107} Shea explained that when plaintiffs’ lawyers in complicated cases can’t find
a path to assist a client, they will ask for another lawyer to look at it, to get a second
opinion. Id., p. 484. Shea testified that he received a letter, dated April 1, 2007, from
Scott asking him to review Jessica’s potential case, which included an autopsy, death
certificate, family notes, and medical records. Plaintiffs’ Exhibit 13G; Trial transcript,
p. 484-485. Shea testified that to obtain an affidavit of merit, you must show a breach of
a standard of care and that harm arose from the breach of the standard of care: a two-
step process. Id., p. 486. Shea testified that for wrongful death cases, you begin with
the death certificate to find out not only the immediate cause of death, but also the
mechanism of death. Id., p. 487. Shea described the mechanism of death as the process
of what caused the death, and noted that on the death certificate, there are three or four
lines to list multiple causes of death. Id., p. 487. Shea testified that a death certificate
creates a rebuttable presumption of the cause of death, which can be displaced by
showing that it’s either incomplete or inaccurate. Id., p. 488. But Shea stated that in
order to do that, you have to have pathology to prove it. Id. According to Shea, in a death
certificate, you may have opinions, but the autopsy is where the facts are. Id. Shea
testified that if you don’t have pathology to disprove the opinions in a death certificate,
you are building your house on a quicksand foundation. Id.
{¶108} Shea explained that there are several factors to consider before accepting
a case, including the complexity of the case, how many expert witnesses are required,
the expense of litigation versus the potential for recovery, and the clarity of the facts of
the case. Id., p. 488-494.
{¶109} In April 2007, Shea received the records from Scott, but Shea’s office also
requested a certified copy of the medical records from Good Samaritan Hospital to make
sure that it was a complete record. Id., p. 494-495. From April 1 to June 15, 2007, Shea’s
office reviewed Jessica’s records. Id., p. 495. Shea sent a letter to the Siegels, dated
Case No. 2009-09531JD -49- DECISION
June 15, 2007, declining to pursue a case on their behalf. The letter states, in relevant
part:
We have spent a good deal of time reviewing the records involved
with your daughter’s care. Our concern is that it was very necessary to have
the procedure* performed.6 Without it being performed, your daughter
would not likely be able to survive very long. You may recall, her situation
had worsened by the addition of a new area of pathology. If it was not fixed,
she most likely would have succumbed to it.
The other side of the equation is that what happened is a risk of this
procedure. The fact that there is an undesirable outcome does not change
the standard of care for a physician. In other words, unless he did the
procedure in an improper way, the fact there is a bad result is not something
that he can be held responsible for. This is called risk of the procedure.
We do not believe there is anything further that we can do. We
suggest that you speak to other attorneys who may have a different opinion.
Of course, there is no charge for our services.
Thank you for allowing us to review this matter. I am returning the
records that were provided to us.
Plaintiffs’ Exhibit 14.
{¶110} Shea testified that he could not recall whether in 2007 he was aware that
the autopsy did not examine Jessica’s brain. Trial transcript, p. 499. However, Shea
testified that in a case like this, the facts in the autopsy would be the foundation of
overcoming the rebuttable presumption of the causes of death contained on the death
certificate. Id.
{¶111} When asked why Shea did not include in his letter to the Siegels the fact
that an autopsy of the brain was not performed, Shea testified that it would not be his
habit to go into detail about that with grieving parents, because he would not want to imply
that they made a mistake by not obtaining a full autopsy and that they were partly to blame
6 Although an asterisk appears after the word “procedure,” there is no footnote explaining the
asterisk in the letter.
Case No. 2009-09531JD -50- DECISION
for the fact that he could not finish their case. Id., p. 499-501. Shea did not know what
the circumstances were around why the autopsy did not include the brain at that time.
Id., p. 501. Shea did not recall having any contact, either in-person or over the phone,
with the Siegels. Id., p. 505.
{¶112} On cross-examination, Shea testified that he has filed medical malpractice
and wrongful death cases without an autopsy before, and he was able to obtain affidavits
of merit in those cases. Id., p. 507-508. Shea did not specifically recall the review of the
Siegels’ case and did not know whether he had a medical expert review the records. Id.,
p. 508. The only things that could refresh Shea’s recollection about the Siegels’ case
were the letters he had sent to them. Id., p. 509.
{¶113} Shea testified that the only evidence that he has as to a reason for declining
to take the Siegels’ case is the June 15, 2007 letter, and acknowledged that in the letter,
he did not mention to the Siegels that he was not accepting the case due to an incomplete
autopsy. Id., p. 509-510. When asked whether the Siegels would be owed that as an
explanation, Shea answered not necessarily because he did not want to imply that he
could not do what they wanted him to do because they didn’t do something that needed
to be done. Id., p. 510.
{¶114} Shea acknowledged that he has various sources to obtain expert review
and potential affidavits of merit, including neurosurgeons that he routinely sends cases to
for review. Id. p. 511-512. Shea agreed that two ways to extend the statute of limitations
include preparing a 180-day letter to extend the statute of limitations by six months, and
preparing a pro se complaint for plaintiffs to file and then dismiss to obtain an additional
year to file another timely complaint assuming service has been completed. Id., p. 512-
513. Shea testified that he had no recollection of Attorney Scott discussing anything
about the autopsy with him. Id. p. 517.
{¶115} While discussing the letter he sent to the Siegels, Shea testified that after
he and his staff reviewed Jessica’s records, they concluded that the embolization surgery
was a necessary surgery based upon Jessica’s pathology; that performing the surgery
itself was not malpractice; and that there was a risk of death without performing the
procedure because of Jessica’s condition of having an AVM. Id., p. 517-519. Shea also
testified that sometimes, the risk of the procedure itself results in a bad outcome, but a
Case No. 2009-09531JD -51- DECISION
bad outcome is not equivalent to malpractice. Id., p. 519-520. Shea agreed that you
must show a breach of a standard of care; that the breach proximately caused injury to
the plaintiff; and that the plaintiff suffered damages as a result of the injury. Id., p. 520.
Shea stated that lacking any one of those elements means that the claim fails. Id. Shea
testified that he was trying to tell the Siegels in his letter that he had ruled out the
possibility that the brain surgery should never have been initiated to begin with because
he and his staff felt strongly that that potential area of malpractice had been ruled out by
the very pathology that was involved. Id., p. 521-522.
{¶116} On redirect, Shea testified that what was contained in the records he
reviewed was insufficient for him to get what he needed to go forward with the case. Id.,
p. 528-529. Shea testified, “So I don’t know what the facts would have been had I known
what facts were in that autopsy that included the pathology in question. So I don’t have
an opinion that it – that it would have been there. What I’m saying is what wasn’t there
prevented me from being able to do much of anything more.” Id., p. 529.
{¶117} Michael Djordjevic, defendant’s expert, testified that he graduated from
Case Western Reserve University School of Law in 1977, was admitted to practice law in
Ohio and has been in the active practice of law since then. Trial transcript, p. 688.
Djordjevic began his career representing plaintiffs, then practiced for ten years defending
doctors and hospitals in medical malpractice suits, then switched to representing plaintiffs
in medical malpractice claims about 25 years ago. Id., p. 689-691. For the past 25 years,
approximately 95 percent of his cases have involved medical negligence, with about a
third of those being wrongful death claims that arose from medical negligence. Id., p.
691-692. Djordjevic prepared an expert report for this case. Defendant’s Exhibit J.
{¶118} Djordjevic testified that the statutes of limitations that are important in a
medical malpractice case involve the date of the occurrence and the date of termination
of the physician/patient relationship. Trial transcript, p. 693-694. In addition, the statute
of repose sets an outside limit of four years, regardless of when the relationship
terminated. Id., p. 694. As a general rule, the statute of limitations in a medical case is
one year from the occurrence or discovery of a cognizable event or the termination of the
physician/patient relationship, whichever comes last, with an outside limit of four years.
Id. The statute of limitations for a wrongful death case is two years from the date of death.
Case No. 2009-09531JD -52- DECISION
Id. To a plaintiff’s attorney, statutes of limitation are extremely significant, because if a
case is not pursued in a timely fashion, the odds are that the court will dismiss the case
and the client will no longer have a viable cause of action, regardless of the merits of the
case. Id., p. 694-695.
{¶119} Djordjevic testified that there are two common ways to extend the statute
of limitations in medical negligence and wrongful death claims. Id., p. 695-696. One way
is a 180-day letter, where, by statute, if the potential defendants are given written notice
informing them that the client is considering bringing a case against them, the statute of
limitations will be extended or tolled for an additional 180 days. Id. p. 695-696. Another
option is to file a lawsuit naming potential defendants, and if that lawsuit is then dismissed
without prejudice and otherwise than on the merits, the case can be refiled within one
year of the date of the dismissal. Id., p. 696. The one-year period is known as the savings
statute. Id.
{¶120} Djordjevic also testified that an affidavit of merit is required pursuant to
Civ.R. 10(D). Id., p. 697. Plaintiffs are required to file an affidavit signed by a competent
expert witness who is a physician licensed by any state in the United States that devotes
at least 50 percent of their time in the clinical practice of medicine in a specialty that is the
same as the defendant doctor. Id., p. 697. The content of the affidavit can be very
general, with the requirements being that the expert would be qualified to testify, that they
reviewed the pertinent materials, and that the expert opines that a breach of the standard
of care was a proximate cause of injury. Id., p. 698. It is not required that the physician
who signs the affidavit of merit serve as an expert witness in the case if the case goes
forward. Id. An affidavit of merit is a jurisdictional hurdle that must be overcome for the
case to be filed and not dismissed. Id. In addition to the ways discussed to extend the
statute of limitations, a plaintiff can file a lawsuit with a motion for an extension of time to
file an affidavit of merit. Id., p. 698-699. In Djordjevic’s experience, courts usually grant
plaintiffs 90 days or so to obtain an affidavit of merit with a motion for an extension of
time. Id., p. 699. Djordjevic added that even if a motion for an extension of time is not
granted, a plaintiff could file a lawsuit and voluntarily dismiss and refile it within one year
of the date of the dismissal if they initially had difficulty obtaining an affidavit of merit. Id.,
p. 699.
Case No. 2009-09531JD -53- DECISION
{¶121} Djordjevic testified that in his field of practice, which includes hypoxic-
ischemic encephalopathy injuries to infants, because of his years of experience, he and
his law partner know which experts are available from whom to obtain affidavits of merit.
Id., p. 699-700. In a case like this, Djordjevic stated that there are services that provide
experts such as neurosurgeons and interventional radiologists who could provide
affidavits of merit. Id., p. 700. Djordjevic stated that he has also consulted medical
literature to find an expert who has written on a similar topic. Id. In Djordjevic’s
experience, it sometimes takes more than one contact with a potential expert to obtain an
affidavit of merit, as different experts can review the same case and arrive at opposite
conclusions about whether there was a breach of the standard of care. Id., p. 700-701.
{¶122} Djordjevic stated that he has testified as an expert witness between five and
eight times, with his last case involving the interaction between the statute of limitations
and the statute of repose in a medical malpractice claim. Id., p. 701-702. Djordjevic
testified that he reviewed the materials listed in his expert report, in addition to the
deposition testimony of Attorneys Scott and Shea. Defendant’s Exhibit J; Trial transcript,
p. 702-703.
{¶123} Djordjevic testified that he has obtained affidavits of merit for wrongful death
cases where there is no autopsy. In Djordjevic’s experience, it is necessary to find an
expert who can testify that there was a deviation from the standard of care and that the
deviation led proximately to an injury or death. Id., p. 703. Generally speaking, those
experts will review medical records and imaging studies, and by reviewing the records
and operative notes, the experts are able to form their own opinions concerning the issues
of deviation from the standard of care and proximate causation. Id., p. 703-704.
{¶124} Djordjevic opined that the lack of a complete autopsy in this case was not
a barrier for an affidavit of merit to be filed contemporaneously with the complaint.
Djordjevic stated that although Attorney Scott consulted with an expert, that expert was
unable to agree that there was a deviation from the standard of care. Id., p. 704.
Moreover, Djordjevic noted that the expert that Scott consulted with was not a
neurosurgeon or an interventional radiologist and would not have been qualified to sign
an affidavit of merit for this case. Id.
Case No. 2009-09531JD -54- DECISION
{¶125} Djordjevic opined that in this case, the cognizable event that would start the
statute of limitations running for both medical malpractice and wrongful death was the
date of Jessica’s death. Id. Djordjevic stated that after death, there was no ongoing
physician/patient relationship, so the statute of limitations for the medical malpractice
case or the survival action in this case would be one year from the date of the death. Id.
The statute of limitations for the wrongful death action would expire two years from the
date of the death. Id., p. 705-706.
{¶126} Djordjevic testified, over plaintiffs’ objection:
Q. Mike, do you have an opinion to a reasonable degree of legal
probability as to whether or not a reasonably resourceful plaintiffs’ lawyer
could have obtained an affidavit of merit and successfully filed a lawsuit in
a timely manner in this case?
A. I do have an opinion.
Q. And what’s that opinion?
A. My opinion is that a reasonably resourceful plaintiffs’ attorney
would have been able to obtain enough reviews to obtain an affidavit of
merit with – within a reasonable time, specifically the time for filing as
specified by the statute of limitations.
Id., p. 708-709.
{¶127} Djordjevic further opined that a reasonably prudent plaintiffs’ attorney could
have obtained a timely affidavit of merit. Id., p. 709-710. The basis for his opinion was
twofold. One, in Djordjevic’s own experience, and in the experience of his law partners,
the absence of an autopsy or a postmortem examination or an incomplete autopsy or
postmortem examination has not served as a barrier to obtaining an affidavit of merit in a
timely fashion. Id., p. 710. Two, Djordjevic stated that this very case shows that the lack
of a complete autopsy was not a barrier to obtaining an affidavit of merit. Id. Djordjevic
noted that plaintiffs’ attorney, John Metz, was able to obtain an affidavit of merit from Dr.
Citow when he filed this case in 2009. Id.; see also, affidavit of merit, dated July 22, 2009
filed with initial complaint in this case on December 16, 2009. Djordjevic added that
counsel for plaintiffs has supplemented Dr. Citow’s opinion with six additional expert
physicians. Id., p. 710-711. Djordjevic noted that a total of seven physicians have
Case No. 2009-09531JD -55- DECISION
concluded that despite the absence of a complete autopsy, there was a deviation from
the standard of care medically in this case, and that the medical deviation from the
standard of care was a proximate cause of Jessica Siegel’s death. Id. Djordjevic opined
that an affidavit of merit could have been and was, in fact, obtained in this case. Id., p.
711.
{¶128} Djordjevic testified that neither Scott nor Shea mentioned in their letters that
the incomplete autopsy was a reason for not taking Jessica’s case. Id., p. 711-712.
Djordjevic added that if the lack of a complete autopsy was the actual reason for declining
the case, it would have been prudent for those attorneys to let plaintiffs know that as well
as notifying them that it might be an area for them to pursue with another attorney. Id.,
p. 712. Djordjevic noted that both attorneys advised the Siegels of the applicable statutes
of limitations when they rejected their claims and noted that the Siegels would have had
time to file both medical negligence and wrongful death claims after the dates of both
letters, April 1 and June 15, 2007, respectively. Id., p. 712-713.
{¶129} Djordjevic did not know the precise date when the Siegels contacted their
current attorney, John Metz, but was aware that the Siegels timely filed a lawsuit against
the eye donation company with Metz’s assistance in March 2008. Id., p. 713. Djordjevic
testified that in March 2008, there was still time remaining within the wrongful death
statute of limitations for the Siegels to have filed a claim. Id.
{¶130} On cross-examination, Djordjevic agreed that one of the most important
things when taking a case to investigate is to find an expert witness. Id., p. 717. Djordjevic
added that as a general statement, Ohio physicians in any specialty do not want to testify
against other Ohio physicians. Id., p. 717-718. Djordjevic agreed that there is no such
thing as a simple medical malpractice case. Id., p. 720. Djordjevic testified that it is not
uncommon to obtain one expert witness for standard of care, another for proximate
cause, and a third expert to dispute any defense that might come up during the course of
the case. Id.
{¶131} Djordjevic testified that when investigating a potential wrongful death case,
if an autopsy is available, he will review it, but he would not reject a case outright if there
were no autopsy available. Id., p. 721. Djordjevic stated that it is a plaintiff’s burden to
prove by a greater weight of the evidence the presence of both a deviation from the
Case No. 2009-09531JD -56- DECISION
standard of care and a proximate link to the injury. Id., p. 722. Djordjevic agreed that
expenses and costs should be considered when deciding whether to pursue a case, and
that in any case there will be an investment of both time and money. Id., p. 723-724.
{¶132} Djordjevic stated that it has been his practice to cast a broad net when
sending 180-day letters because it is much easier to serve them on more people than on
fewer people. Id., p. 726. Djordjevic stated that it is easier to dismiss someone from a
case than to add someone after the statute of limitations has expired. Id. Djordjevic
agreed that he uses 180-day letters as a last resort and noted that you have to make sure
to obtain service, so he sends them certified mail, regular mail, and tries to obtain personal
service. Id., p. 727.
{¶133} Djordjevic testified that in his experience over the last decade, his firm gets
calls from either potential clients or referring attorneys that fall into three categories. Id.,
p. 732. The first category is cases that he knows through previous experience are
meritorious and are likely to be supportable by qualified experts likely to generate a
settlement offer or a verdict at trial. Id. The second category is cases that based on prior
experience are not going to win, for example, ligation of the common duct during a
cholecystectomy. Id. The third category includes cases that he has no experience with
which might be a case of first impression for his firm, in which case he explains to the
client that it is potentially an expensive process, and he would require the client to finance
the initial review. Id. If the review comes up favorably, he and his firm would assume the
expenses from there on. Id., p. 733. Djordjevic agreed that he and his firm cannot spend
thousands of dollars for every client who calls them. Id.
{¶134} With regard to his criticisms of attorneys Scott and Shea, Djordjevic testified
that if they were turning back or rejecting Jessica’s case because there was some
problem with the autopsy, he thinks that it would have been prudent for them to tell the
parents that there was a problem with an incomplete or a deceptive autopsy, because
that is what a reasonably prudent lawyer would do under those circumstances. Id., p.
736. Djordjevic did not have an opinion on whether attorneys Scott or Shea breached
their professional attorney standard of care; he testified that he was not there to point the
finger at anyone. Id., p. 736-737.
{¶135} With regard to the medical records in this case, Djordjevic testified:
Case No. 2009-09531JD -57- DECISION
Q. I’m just saying that if one looks at the records as they were
before Nurse Smith’s deposition, one reading that would see an autopsy
consent form that excludes the brain and has the father’s signature on it.
So wouldn’t you take that to understand that the father agreed to that?
A. Well, it’s hard to – for me to answer that because I know the
totality of circumstances as they unfolded in this case. So I – so I don’t
really know. I’m guessing that if in real-time I had a question as to whether
or not the father knew or didn’t know about the exclusion of the head, since
the father was my client, I would ask. And would say were you aware of
this in real-time or how did you learn this after – something along those
lines, Mr. Metz.
Id., p. 739-740.
{¶136} Djordjevic testified that if he learned that the father did not want a limited
autopsy and that the coroner had not been called, he would be suspicious as to what had
gone on, which would make him more inclined to want to get an affidavit of merit so he
could file a lawsuit and take depositions. Id., p. 742.
{¶137} With regard to Djordjevic’s expert report, and his statement that nothing
medically changed from the time of Jessica’s death to the time of Dr. Citow’s affidavit of
merit, Djordjevic testified that in his opinion, none of the issues about the autopsy
authorization or the limited autopsy would matter in obtaining an affidavit of merit. Id.,
p. 748. Djordjevic explained that whatever changed factually regarding the autopsy and
authorization for an autopsy would not have been a proximate cause of the injury in this
case. Id. The affidavit of merit is separate from the desire to pursue a case. Id. The
affidavit of merit requires that a competent physician state under oath that there is a
deviation from the standard of care and that the deviation was a proximate cause of the
injury. Id., p. 748-749. The fact that a record may have been changed might violate the
standard of care, but it would not be a proximate cause of the injury. Id., p. 749.
{¶138} Djordjevic testified that after consulting Scott and Shea, the Siegels were
made aware of the fact that there were statutes of limitations that were involved in
pursuing a case. Id., p. 760. Djordjevic testified that at that point, ordinary people would
know that if they wanted to pursue a case, they needed to find other representation, and
Case No. 2009-09531JD -58- DECISION
in addition, file a suit or in some way extend the statute of limitations past the date that
they had been given by these previous two attorneys. Id. Djordjevic testified that in his
opinion, a reasonably prudent person would know that they had a potential case, and they
would know that there were deadlines for filing a case. Id. Djordjevic mentioned that at
least one of the letters from Scott and Shea specifically stated that the attorney was not
intending to tell the Siegels that there was not merit to their case, only that he was not
interested in pursuing it. Id., p. 761. In Djordjevic’s opinion, he does not think the Siegels
should have filed a case, but if they wanted to pursue a case, they would have had to find
another attorney who was willing to pursue a case and file it in a timely manner. Id.
{¶139} Djordjevic testified that when he issues a turn back letter, he informs
potential clients that they have one year from the date of the negligent act, the cognizable
event or the termination of the physician/patient relationship. Id., p. 766. Then it is up to
the client to know which of those dates would be the last. Id. Djordjevic stated that he
tries to cover his bases by giving that information to potential clients. Id., p. 767.
Plaintiffs’ Medical Experts
{¶140} Plaintiffs submitted the video depositions and corresponding written
deposition transcripts of medical experts that plaintiffs obtained for this case. The
magistrate issued rulings on the objections contained in their depositions in an order
dated December 20, 2023. The magistrate will give the following summaries of their
relevant testimony.
{¶141} Jonathan Citow, M.D., the physician who signed the affidavit of merit that
plaintiffs filed with their December 16, 2009 complaint, is licensed to practice medicine in
the state of Illinois and is board certified in neurosurgery. See December 16, 2009
Complaint; Plaintiffs’ Exhibit 36, October 19, 2023 Deposition of Dr. Citow. Dr. Citow
testified that he was able to render the opinions contained in his expert report to a
reasonable degree of medical probability, based upon the professional standard of care
that was in effect in 2006 for a neurosurgeon in this type of case and under these
circumstances, after reviewing the medical records from both Good Samaritan Hospital
and Children’s Hospital Medical Center, the radiological films, scans, CTs, angiography,
and other radiological films from both hospitals, the depositions of Dr. Ringer,
Case No. 2009-09531JD -59- DECISION
Nurse Smith, Dan and Fran Siegel, and the office records from Mayfield. October 19,
2023 Citow deposition, p. 14-26. Dr. Citow further testified that in July 2009, he was able
to offer an opinion that Dr. Ringer breached the standard of care and that breach caused
injury to Jessica. Id., p. 37; see also, affidavit of merit dated July 22, 2009, filed with
plaintiffs’ complaint. Dr. Citow further testified that he could have rendered the same
opinion if the medical records were made available to him in 2007 or 2008, because
nothing changed in the medical records that he reviewed. Id. Dr. Citow also testified that
it would have been obvious to him or anyone else looking at the autopsy report that it was
not a complete autopsy. Id., p. 38. Dr. Citow further stated that the alleged modification
or alteration to the autopsy authorization did not cause any injury to Jessica because at
that time, she was already deceased. Id., p. 47-48.
{¶142} Steven Hetts, M.D., a professor of radiology, biomedical imaging, and
neurological surgery at U.C. San Fransisco, was provided with the Good Samaritan
medical records for July and August 2006, the Children’s Hospital medical records, all the
radiological films for both hospitals, and the Mayfield office visit records. Plaintiffs’ Exhibit
35, October 18, 2023 deposition of Dr. Hetts, p. 54. Based upon a review of those
materials, Dr. Hetts testified that he was able to provide his opinions on standard of care
and causation without a complete autopsy. Id., p. 7, 78. Indeed, Dr. Hetts put together
a PowerPoint slideshow of the individual angiograms and images of Jessica’s brain in the
medical records from August 14, 2006, through the date of her death in chronological
order to explain his testimony during his deposition. Id., p. 30-51. See also, video
deposition of Dr. Hetts, taken on October 18, 2023. Dr. Hetts agreed that modifying the
autopsy authorization did not cause injury to Jessica and did not cause her death. Id., p.
78.
{¶143} Karel ter Brugge, M.D., a professor of radiology and surgery and chair of
the interventional radiological department at the University of Toronto until his retirement
in 2016, who devoted his professional life to the treatment of AVMs, testified that if he
had reviewed this matter for Mr. Metz closer to the time when it happened, in 2006, 2007,
or 2008, he could have offered the same opinions that he has today about whether
Dr. Ringer met or did not meet the applicable standard of care. Plaintiffs’ Exhibit 33,
October 24, 2023 deposition of Dr. ter Brugge, p. 8-9, 55, 69. Dr. ter Brugge testified that
Case No. 2009-09531JD -60- DECISION
he reviewed the same set of facts that he would have reviewed back in that time because
nothing factually as far as the medical records has changed. Id., p. 69.
{¶144} Alejandro Berenstein, M.D., who is board certified in radiology, diagnostic
radiology and neuroradiology, is a professor of radiology neurosurgery in pediatrics at the
Icahn School of Medicine in New York City, and practices as an interventional radiologist
or endovascular neurosurgeon, testified that he was able to give his opinions on standard
of care without there being a complete autopsy, and believed that any reasonably
competent neurological surgeon could do the same if provided with the same records.
Plaintiffs’ Exhibit 34, Dr. Berenstein’s October 25, 2023 deposition, p. 1-15, 47-48. In
addition, Dr. Berenstein testified that this could have been done back in 2006, 2007, or
2008. Id. Dr. Berenstein stated that an autopsy will confirm a medical opinion as to cause
of death, and the fact that the brain was excluded in this case was puzzling to him. Id.,
p. 58-59.
{¶145} Although the magistrate has determined that neurosurgeon J. Martin
Barrash, M.D., did not meet the requirements of an expert witness and has ruled that his
deposition shall not be admitted, Dr. Barrash testified that in his opinion, Jessica died
from the hematoma from the embolization, and he was able to reach that opinion from
the portion of the medical records that he reviewed. Plaintiffs’ Proffered Exhibit 37,
October 20, 2023 deposition of J. Martin Barrash, M.D., p. 68. Dr. Barrash further stated
that if he had been provided with the medical records in 2006, 2007, or 2008, he could
have formulated the same opinion. Id., p. 68-71.
{¶146} Carl Schmidt, M.D., a board-certified anatomic clinical and forensic
pathologist who practiced at the Wayne County Medical Examiner’s Office in Detroit,
Michigan, until 2022, testified that in his opinion, Jessica’s brain should have been
autopsied in this case because the brain was the organ that was the subject of diagnosis
and treatment. October 23, 2023 deposition of Carl Schmidt, M.D., Plaintiffs’ Exhibit 38,
p. 26-27. Dr. Schmidt stated that an autopsy of the brain would have allowed correlation
between the radiologic changes and what would have been found in a neuropathologic
examination. Id., p. 29. Dr. Schmidt stated that additional injury to the central nervous
system caused by a diffuse swelling in the brain and what was essentially a large
iatrogenic hemorrhagic stroke would have been documented. Id., p. 29-30. Dr. Schmidt
Case No. 2009-09531JD -61- DECISION
stated that if you look at how swollen the brain was, then you could see the damage that
was caused by the hemorrhage as well as the consequences of the swelling of the brain
that may not be as well documented by a radiologist. Id., p. 30.
{¶147} In Dr. Schmidt’s opinion, it was more likely that the extensive injury to
Jessica’s brain caused her high temperature, not the possible condition of malignant
hyperthermia. Id., p. 31. Dr. Schmidt opined that if the brain itself had been examined
during the autopsy, the extensive brain injury would have been documented. Id.
{¶148} Dr. Schmidt testified that it would be below the professional standard of
care for a physician to intentionally limit the autopsy to exclude the brain and head without
informing the family, if the family’s wishes were to obtain a complete autopsy. Id. p. 34.
Dr. Schmidt testified that an examination of the brain would allow for further
documentation of compression of the hypothalamus and brain stem, as indicated on the
existing radiological scans of Jessica’s brain. Id., p. 34-35. Dr. Schmidt testified that the
hypothalamus helps with thermal regulation, and if there is injury to that part of the brain,
you can lose temperature control and that can be a reason for the hyperthermia. Id., p.
35. Dr. Schmidt disagreed with Dr. Wang’s opinions about the cause of Jessica’s death,
and Dr. Wang’s statement that it was not unreasonable to exclude the brain from the
autopsy in this case. Id., p. 48-51.
{¶149} On cross-examination, Dr. Schmidt testified that he was able to formulate
an opinion as to the cause of Jessica’s death, even without a complete autopsy, because
he had ample documentation from some of the imaging as well as clinical documentation.
Id., p. 69-70. Dr. Schmidt also agreed that the cause of death listed on the death
certificate was accurate. Id., p. 70. Dr. Schmidt agreed that a patient with ventilator-
induced pneumonia will more than likely have a fever. Id., p. 72. Dr. Schmidt testified
that with regard to his opinions on the cause of death, he could have formulated the same
opinions if the same information had been provided to him in 2007 or 2008, even without
a complete autopsy. Id., p. 75.
{¶150} Amber Wang, M.D., defendant’s expert witness, testified that she is
employed by the Maricopa County medical examiner’s office in Phoenix, Arizona as a full-
time medical examiner. Trial transcript, p. 815. Defendant’s Exhibit L is her CV. Id., p.
816. Dr. Wang is board certified in anatomic pathology, neuropathology and forensic
Case No. 2009-09531JD -62- DECISION
pathology, and serves as a clinical professor of pathology at the University of Arizona
College of Medicine. Id., p. 818. Dr. Wang has participated in thousands of autopsies in
her career. Id., p. 819. Dr. Wang’s expert report is Defendant’s Exhibit K. Id., p. 821.
Dr. Wang has testified as an expert between five and ten times before, concerning cause
of death. Id., p. 822. Dr. Wang reviewed Jessica’s medical records, the autopsy report,
the death certificate, and the expert reports of Dr. Carl Schmidt. Id., p. 822-823.
{¶151} In this specific case, Dr. Wang opined that an examination of the head and
brain was not necessary. Id., p. 823-824. Dr. Wang stated that the cause of death was
apparent based upon Jessica’s clinical course and the documentation from the hospital.
Id., p. 824. Dr. Wang opined that if the brain had been examined, it would have revealed
the things that were already shown radiographically, such as the AVM, operative site, the
clips or coils used for the procedure, softening around the craniectomy, and it may have
shown some residual hemorrhage which were all documented radiographically. Id., p.
824-825. Dr. Wang was able to form a professional opinion as to cause of death without
a complete autopsy in this case, based on Jessica’s clinical course, which was well-
documented in the medical records, along with the existing autopsy. Id., p. 825-826. Dr.
Wang opined that the cause of death was gram-negative rod sepsis and methicillin
sensitive staphylococcus aureus pneumonia in the postoperative setting of cerebral AVM
embolization. Id., p. 826-827. Dr. Wang explained that Jessica had documented
infections in her body at the time of her death, including bacteria that was detected in her
bloodstream and her lungs. Id., p. 827. Dr. Wang also stated that there was radiographic
evidence of a pneumonia during Jessica’s hospitalization, which is a complication of
surgery that is frequently seen in a patient that has been intubated for a period of time.
Id. Dr. Wang stated that sepsis and pneumonia caused Jessica to have a significant
fever, and that they occurred in the setting of her AVM embolization. Id. Dr. Wang stated
that she could rule out malignant hyperthermia to a significant degree of certainty, but she
could not completely rule it out. Id., p. 828. Dr. Wang explained that fifty percent of
people with malignant hyperthermia have a genetic mutation which makes them
susceptible to malignant hyperthermia with anesthetics. Id. Since Jessica did not have
a family history of that, Dr. Wang thought it would be unlikely that Jessica suffered from
Case No. 2009-09531JD -63- DECISION
malignant hyperthermia. Id. Dr. Wang was able to rule out pulmonary embolism because
of the results of the autopsy. Id.
{¶152} To support her opinion that Jessica died of sepsis, Dr. Wang pointed to the
cultures obtained during Jessica’s hospitalization that were positive for methicillin
sensitive staph aureus pneumonia. Id. Jessica was also markedly febrile throughout the
day of her death. Id. Dr. Wang opined that it was not unreasonable to exclude the head
from the autopsy in this case, because Jessica’s death was related to her hyperthermia
or her fever at the end of life. Id., p. 830. According to Dr. Wang, there were three causes
that needed to be considered that would have produced such a high fever: 1) Malignant
hyperthermia, which is probably not related in this case; 2) sepsis and pneumonia, which
are confirmed in this case; and 3) neurogenic fever, which she could not definitively rule
out but may have played a role and goes along with a complication of her AVM, which
occurs when there is an injury to the brain, specifically the hypothalamus which regulates
body temperature and can drastically increase a temperature in someone. Id. Dr. Wang
stated that neurogenic fever is usually diagnosed when someone does not have signs of
an infection, and we know that Jessica had signs of an infection. Id. Dr. Wang stated
that regardless, all three of these possibilities cannot be sorted out based upon an
examination of the brain. Id., p. 830-831. Dr. Wang stated that Jessica’s metabolic and
respiratory acidosis were signs of multiorgan failure and were related to her febrile state.
Id. Dr. Wang opined that it was more probable that Jessica was hyperthermic because
of sepsis, not because of neurogenic fever. Id., p. 831-832. Dr. Wang noted that even
though Dr. Schmidt has a different opinion as to Jessica’s cause of death, both she and
Dr. Schmidt were able to form an opinion as to Jessica’s cause of death without an
autopsy of the brain. Id., p. 832. Dr. Wang further opined that a reasonably prudent
pathologist would have also been able to come to an opinion about Jessica’s cause of
death from 2006 through 2008 without an autopsy of the brain. Id., p. 833.
{¶153} On cross-examination, Dr. Wang stated that she had not read Dr. Ringer’s
depositions or talked to him, and that she had not read Dr. Beckman’s deposition. Id., p.
834-835. Dr. Wang agreed that a complete autopsy provides more information than a
limited one but stated that a complete autopsy is not always necessary to determine the
cause of death. Id., p. 836-837. Dr. Wang agreed that Dr. Ringer’s order to rule out a
Case No. 2009-09531JD -64- DECISION
pulmonary embolism vs. malignant hyperthermia did not prohibit a full autopsy from being
conducted. Id., p. 838. Dr. Wang agreed that Jessica’s death occurred from medical
treatment of AVM, as stated on the handwritten death certificate, Plaintiffs’ Exhibit 8B.
Id., p. 842. Dr. Wang stated that acute hemodynamic collapse following tracheostomy is
a mechanism of death rather than a cause of death, and that the causes of death are
accurately reflected on the death certificate. Id., p. 843. Dr. Wang stated that if the brain
had been examined, there may have been new findings, but it would not alter Jessica’s
cause of death.
{¶154} On redirect, Dr. Wang agreed that Dr. Beckman’s testimony that lung
disease contributed to Jessica’s death was consistent with her determination that the
cause of death was pneumonia and sepsis. Id., p. 868. On recross, Dr. Wang clarified
that hospital autopsy reports are different than forensic autopsy reports in that hospital
pathologists very rarely give a cause of death; their main role is to document illness or
injury. Id., p. 871-872. Dr. Wang agreed that Dr. Beckman listed his findings, Dr. Ringer
listed his opinions on the certificate of death, and Dr. Wang found a cause of death. Id.,
p. 872.
{¶155} Steven Sunderland, PhD, a grief educator, testified that he met with the
Siegels in April 2023 and wrote a report as a result of their sessions. Plaintiffs’ Exhibit
40, October 16, 2023 deposition of Steven Sunderland, PhD, p. 17. The report refers to
the grief the Siegels experienced as a result of Jessica’s death, and then, later, how their
grief changed to a sense of distrust regarding Dr. Ringer. Id., p. 17-37. Dr. Sunderland
stated that the gri
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