Rex v. Univ. of Cincinnati College of Medicine

[Cite as Rex v. Univ. of Cincinnati College of Medicine, 2013-Ohio-1514.]

Court of Claims of Ohio

The Ohio Judicial Center

65 South Front Street, Third Floor

Columbus, OH 43215

614.387.9800 or 1.800.824.8263

www.cco.state.oh.us

DOUGLAS REX, et al.

Plaintiffs

v.

UNIVERSITY OF CINCINNATI COLLEGE OF MEDICINE

Defendant

Case No. 2009-04637

Magistrate Anderson M. Renick

DECISION OF THE MAGISTRATE

{¶ 1} Plaintiffs filed this action alleging medical negligence based upon treatment

provided to plaintiff, Douglas Rex, by Robert Bracken, M.D., an employee of defendant,

the University of Cincinnati College of Medicine (UC).1 The issues of liability and

damages were bifurcated and the case proceeded to trial on the issue of liability.

{¶ 2} In the spring of 2008, plaintiff was diagnosed with prostate cancer.

Plaintiff’s oncologist, Leslie Oleksowicz, M.D., referred him to Dr. Bracken to explore

treatment options. On April 30, 2008, Dr. Bracken met with plaintiff and recommended

that he undergo robotic wide excision radical prostatectomy. According to plaintiff, Dr.

Bracken represented to him that such a procedure was less invasive than other

procedures, resulting in little to no bleeding and a relatively quick recovery period.

{¶ 3} During pre-operative meetings on April 30, 2008, and May 7, 2008, Dr.

Bracken learned that plaintiff had a medical history of atrial fibrillation, a heart condition

that can cause clotting of the blood, and episodes involving a deep vein thrombosis

(DVT) in both 2001 and 2003 for which he had been prescribed Coumadin, an

anticoagulant that slows the body’s ability to stop bleeding. As a part of the treatment

1

For the purposes of this decision, “plaintiff” shall refer to plaintiff Douglas Rex.

Case No. 2009-04637 -2- DECISION

plan and in preparation for surgery, Dr. Bracken instructed plaintiff to stop taking

Coumadin 10 days prior to the procedure, and he prescribed two daily doses of

Lovenox, a short-term anticoagulant, at 145 milligrams (mg) per dose. Such a form of

treatment is known as “bridging therapy,” where a patient is switched from one

anticoagulant to another shortly before surgery.

{¶ 4} The procedure was performed on May 12, 2008, at University Hospital in

Cincinnati, Ohio. The robotic surgery is performed laparoscopically, where the surgeon

inserts probes and manipulates a camera and tools. During the procedure, the

operating table was slanted with plaintiff’s head lowered toward the floor, known as the

steep Trendelenburg position, and his abdomen was inflated with carbon dioxide

(insufflation) to displace his internal organs so that the surgeons had better access and

visualization of the surgical field. After the prostate was removed, Dr. Bracken attached

the bladder to the urethra and reconstructed the bladder neck. The surgery lasted

approximately seven hours and plaintiff lost a significant amount of blood. After the

surgery, plaintiff was transferred to the intensive care unit (ICU) for further treatment

and observation.

{¶ 5} Plaintiff asserts that, following the surgery, he began to experience blurred

vision and difficulty focusing. Plaintiff testified that he was not fully aware of his

surroundings for two weeks following the surgery; however, once he was moved to a

different floor of the hospital, he began to notice difficulty seeing the television, dark

spots in his vision, and blurred vision. Plaintiff testified that, on multiple occasions, he

informed UC medical staff about his vision difficulties. According to plaintiff, on June 19,

2008, Dr. Bracken told him that his vision difficulties were related to the medication he

received during the operation and that his vision would improve. On August 1, 2008,

plaintiff complained to Dr. Bracken that his vision had not improved. Dr. Bracken

scheduled an appointment for plaintiff at the Cincinnati Eye Institute where he was

diagnosed with Ischemic Optic Neuropathy (ION). Plaintiffs allege that Dr. Bracken’s

Case No. 2009-04637 -3- DECISION

actions fell below the standard of care both by failing to consult with plaintiff’s

cardiologist regarding “bridging therapy” and by incorrectly calculating the appropriate

dosage of Lovenox. Plaintiffs further allege that significant surgical bleeding during the

surgery proximately caused plaintiff’s vision problems.

{¶ 6} “In order to establish medical malpractice, it must be shown by a

preponderance of the evidence that the injury complained of was caused by the doing of

some particular thing or things that a physician or surgeon of ordinary skill, care and

diligence would not have done under like or similar conditions or circumstances, or by

the failure or omission to do some particular thing or things that such a physician or

surgeon would have done under like or similar conditions and circumstances, and that

the injury complained of was the direct result of such doing or failing to do some one or

more of such particular things.” Bruni v. Tatsumi, 46 Ohio St.2d 127 (1976), paragraph

1 of the syllabus. The appropriate standard of care must be proven by expert

testimony. Id. at 130. “[E]xpert opinion regarding a causative event, including

alternative causes, must be expressed in terms of probability irrespective of whether the

proponent of the evidence bears the burden of persuasion with respect to the issue.”

Stinson v. England, 69 Ohio St.3d 451, 1994-Ohio-35, paragraph one of the syllabus.

{¶ 7} Dr. Bracken is a board-certified urologist and professor of surgery with the

University of Cincinnati and he has published numerous peer reviewed journal articles

on urologic cancer research and treatment. At the time of plaintiff’s operation, Dr.

Bracken had performed approximately 200 robotic prostatectomy surgeries and

approximately 1,500 open prostatectomy surgeries. According to Dr. Bracken, bridging

therapy has been practiced for more than 10 years and has now become the standard

of care for treating patients with a history of DVTs. Dr. Bracken testified that he

determined that bridging therapy was appropriate given plaintiff’s medical history and

that he consulted with two UC physicians who specialize in internal medicine about the

dosing level for Lovenox. Dr. Bracken related that the dosage recommendation was for

one mg of Lovenox per kilogram of body weight, which equated to 145 mg twice per

Case No. 2009-04637 -4- DECISION

day. According to Dr. Bracken, one of the internal medicine physicians recommended

additional testing to confirm the proper dosage. Dr. Bracken testified that the additional

blood testing confirmed creatinine clearance levels in line with plaintiff’s known baseline,

resulting in no reduction in the Lovenox dosage for bridging therapy.

{¶ 8} Regarding the procedure, Dr. Bracken opined that plaintiff received the

proper dosage of anticoagulant medication. Dr. Bracken explained that a patient who is

over- anticoagulated will bleed from every blood vessel that is cut and that all patients

are to some extent anticoagulated prior to surgery. According to Dr. Bracken, the

significant bleeding encountered during plaintiff’s surgery occurred during reconstruction

of the bladder neck and that such bleeding is not typical of a patient who is over-

anticoagulated. Dr. Bracken asserted that bleeding encountered at a surgical cite is a

typical complication of surgery. Dr. Bracken further testified that despite administration

of Lovenox prior to surgery, plaintiff suffered a DVT on May 14, 2008, and that a filter

was inserted to prevent the clot from migrating to plaintiff’s lung. Dr. Bracken related

that the records from his examinations of plaintiff do not note any complaints of vision

problems until August 1, 2008. Dr. Bracken testified that after learning of plaintiff’s

vision problems, he referred plaintiff to an opthamologist to ensure prompt attention to

his vision difficulties.

{¶ 9} Plaintiffs’ expert, Michael Mathers, M.D., is a board-certified urologist and

has participated in several hundred prostatectomies, although he has never been the

primary surgeon on a robotic assisted prostatectomy. Dr. Mathers testified that Dr.

Bracken’s administration of Lovenox prior to the procedure did not meet the standard of

care. According to Dr. Mathers, plaintiff’s history did not place him in the “high risk”

category of patients for whom bridging therapy was recommended. Dr. Mathers based

his opinion upon an article that was published in the Cleveland Clinic Journal of

Medicine, which addresses candidates for bridging therapy. (Plaintiffs’ Exhibit 68.) Dr.

Case No. 2009-04637 -5- DECISION

Mathers explained that most patients who are on Coumadin do not require bridging

therapy.

{¶ 10} According to Dr. Mathers, a high risk patient would have a known

hypercoagulable state, a DVT within the previous three months, and atrial fibrillation.

Dr. Mathers stated that plaintiff’s medical history does not suggest a reoccurrence of

atrial fibrillation; however, Dr. Mathers was under the mistaken belief that plaintiff had

only had one previous DVT. Dr. Mathers testified that plaintiff was a “low risk” category

patient for whom bridging therapy was not advised, although he was unaware that

plaintiff had received bridging therapy in 2006 for knee surgery. Dr. Mathers opined that

a patient with a medical history similar to that of plaintiff with two previous DVTs, should

have had a consultation with a cardiologist regarding the proper dosage of Lovenox.

{¶ 11} Ronney Abaza, M.D., a board-certified urologist and an assistant professor

at The Ohio State University, testified as an expert for defendant. Dr. Abaza has

performed approximately 2,000 robotic prostatectomies during his career and he has

published approximately 35 articles on robotic surgery. Dr. Abaza testified that he

routinely administers Lovenox to his patients and that all of his patients are somewhat

anticoagulated prior to surgery. Dr. Abaza opined that the pre-operative treatment Dr.

Bracken provided to plaintiff met the standard of care. According to Dr. Abaza, bridging

therapy with Lovenox is appropriate for a patient who has received Coumadin prior to

surgery. Dr. Abaza testified that the standard of care requires that the surgeon assess

the reason for the Coumadin prescription, typically by consulting with the prescribing

physician and consulting with a cardiologist about the dosing requirements of Lovenox.

Dr. Abaza explained the risk factors for developing a DVT and he opined that a surgeon

must perform a risk-benefit analysis. According to Dr. Abaza, the “rule of thumb” is that

it is easier to treat bleeding than it is to treat a blood clot inasmuch as clotting can cause

a stroke.

{¶ 12} Dr. Abaza testified that Dr. Bracken’s treatment of plaintiff met the

standard of care by consulting with the internists regarding the dosage of Lovenox. Dr.

Case No. 2009-04637 -6- DECISION

Abaza further testified that bridging therapy was appropriate and within the standard of

care given plaintiff’s medical history and risk factors such as two prior DVTs, obesity,

and cancer. Dr. Abaza opined that plaintiff was not over-anticoagulated during the

surgery. According to Dr. Abaza, a patient who is over-anticoagulated will bleed

everywhere contact is made during the surgery. Dr. Abaza explained that the bleeding

that occurred in plaintiff’s surgery was not typical of a patient who is over-anticoagulated

and that it is not surprising that he lost two liters of blood.

{¶ 13} Based upon the foregoing, the court concludes plaintiffs have failed to

prove that Dr. Bracken’s preoperative and surgical treatment fell below the standard of

care. Indeed, Dr. Bracken credibly testified that he consulted with two internists at UC

about bridging therapy and the appropriate dosage of Lovenox. The court is convinced

by Dr. Abaza’s testimony that Dr. Bracken’s actions met the standard of care and that

bridging therapy was reasonable under the circumstances given plaintiff’s medical

history of atrial fibrillation, DVTs, obesity, and cancer. Furthermore, the court finds that

plaintiffs failed to prove that the surgical bleeding proximately caused plaintiff’s vision

difficulties.

{¶ 14} Regarding the cause of plaintiff’s vision loss, plaintiffs presented, by way of

deposition, the testimony of Karl Golnik, M.D., a board-certified ophthalmologist and

vice-chairman of the Department of Ophthalmology at UC. Dr. Golnik is also director of

the Ophthalmology Residency Program at UC and a professor in the Department of

Ophthalmology at the University of Louisville.2 Dr. Golnik testified that plaintiff has

bilateral optic neuropathy, most likely hypoperfusion neuropathy, a condition that is

caused by a lack of blood and/or oxygen in the blood, leading to damage to both the

nerves and visual tissue. According to Dr. Golnik, there are several important factors

that control the amount of oxygen that the optic nerve receives. Such factors include

2

Plaintiffs also presented the deposition of James Ernst, O.D., who testified that he could not give

an opinion as to the cause of plaintiff’s vision loss.

Case No. 2009-04637 -7- DECISION

blood pressure, red blood count, and oxygen saturation; however, Dr. Golnik was

unable to specifically identify any such deficiencies during the surgery that may have

caused plaintiff’s vision problems. Dr. Golnik testified that plaintiff suffered vision

damage at some point between the time he underwent surgery and the time he

regained consciousness.

{¶ 15} According to Dr. Golnik, optic neuropathy should plateau once it is

discovered and the cause is eliminated. Dr. Golnik explained that within the first few

weeks of hypoperfusion a patient’s vision could continue to degenerate but that he

would not expect the patient’s vision to get worse after that initial time period. Dr.

Golnik further testified that if plaintiff’s vision problems continued to degenerate after his

only evaluation on August 15, 2008, he would look for other factors to explain such

vision difficulties. Dr. Golnik admitted that if plaintiff’s vision continued to degenerate, it

would call into question his initial diagnosis. Dr. Golnik asserted that plaintiff was not

legally blind in August 2008.

{¶ 16} Andrew Lee, M.D., a board-certified neuro-ophthalmologist and chair of the

Department of Ophthalmology at Methodist Hospital in Houston, Texas, testified as an

expert for defendant. Dr. Lee testified that the exact cause ION is presently unknown;

however, the condition is associated with several predisposing factors including age,

gender, weight, diabetes, hypertension, and smoking. Dr. Lee explained that additional

factors such as the duration of a surgery, blood loss, and blood pressure are risk factors

for ION that are associated with surgery. Dr. Lee stated that vision loss following a

robotic prostatectomy is rare, with one occurrence for every 60,000 surgeries. Dr. Lee

testified that based upon plaintiff’s medical records, plaintiff has regressed from reading

vision to being legally blind in both eyes. Dr. Lee testified that plaintiff’s vision loss

occurred over a period of years after surgery and that such progressive loss of vision

shows that the cause of the disease was not a surgical event. Dr. Lee opined to a

reasonable degree of medical probability that plaintiff’s surgery was not the cause of his

Case No. 2009-04637 -8- DECISION

ION. According to Dr. Lee, the evidence dose not support the conclusion that blood

loss, low blood pressure, surgical time, or low hemoglobin caused plaintiff’s ION.

{¶ 17} Based upon the foregoing, the court finds that plaintiffs have failed to

prove that the treatment rendered by Dr. Bracken fell below the standard of care. The

court is persuaded by the testimony of Dr. Lee that the evidence does not support

plaintiffs’ assertion that plaintiff’s vision difficulties were caused by surgical bleeding.

Furthermore, the court finds that Dr. Golnik’s diagnosis of optic neuropathy is not

consistent with plaintiff’s history of progressive vision loss. For the foregoing reasons,

the court finds that plaintiffs have failed to prove any of their claims by a preponderance

of the evidence and accordingly, judgment is recommended in favor of defendant.

{¶ 18} A party may file written objections to the magistrate’s decision within 14

days of the filing of the decision, whether or not the court has adopted the decision

during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files

objections, any other party may also file objections not later than ten days after the first

objections are filed. A party shall not assign as error on appeal the court’s adoption of

any factual finding or legal conclusion, whether or not specifically designated as a

finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely

and specifically objects to that factual finding or legal conclusion within 14 days of the

filing of the decision, as required by Civ.R. 53(D)(3)(b).

_____________________________________

ANDERSON M. RENICK

Magistrate

cc:

Case No. 2009-04637 -9- DECISION

Brian M. Kneafsey, Jr. Gregory P. Hartmann

Assistant Attorney General Joseph W. Shea III

150 East Gay Street, 18th Floor Michelle A. Cheek

Columbus, Ohio 43215-3130 Shirley A. Coffey

119 West Central Parkway

300 Court Index Building

Cincinnati, Ohio 45202

003

Filed January 25, 2013

To S.C. Reporter April 16, 2013