Opinion

Mehaffey v. Ohio State Univ. College of Medicine

  • 2012 Ohio 6356
Court
Ohio Court of Claims
Filed
Nov 16, 2012
Status
Published
On the bench
Weaver
Cited by
0 cases
Authority
More cited than 32.2%

The opinion

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

Court of Claims of Ohio

The Ohio Judicial Center

65 South Front Street, Third Floor

Columbus, OH 43215

614.387.9800 or 1.800.824.8263

www.cco.state.oh.us

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

Plaintiffs

v.

THE OHIO STATE UNIVERSITY COLLEGE OF MEDICINE

Defendant

Case No. 2010-01123

Judge Clark B. Weaver Sr.

DECISION

{¶ 1} Plaintiffs brought this action against defendant, The Ohio State University

College of Medicine (OSU), alleging negligence, wrongful death, and loss of consortium

based upon medical treatment provided to plaintiffs’ decedent, John Mehaffey.1 The

issue for trial was limited to whether defendant breached the standard of care with

respect to the medical treatment it provided to plaintiffs’ decedent and the case

proceeded to trial.2

{¶ 2} In 1999, John received a living donor kidney transplant; however, by 2008,

John’s serum creatinine values, a measure of kidney function, were steadily rising. On

or about May 2, 2008, Jon Von Visger, M.D., a nephrologist at OSU, scheduled a renal

biopsy to determine the reasons for John’s decreased kidney function.

{¶ 3} On May 5, 2008, John and Elizabeth Mehaffey arrived at OSU for the

scheduled procedure. They met with a member of the nursing staff and provided the

staff member with an updated list of John’s medications. Included in the list was a

1

Plaintiffs’ decedent shall be referred to as “John” throughout this decision.

Case No. 2010-01123 -2- ENTRY

medication called Plavix, a platelet inhibitor, which binds to the receptors of the platelet

preventing clotting of the blood. Elizabeth testified that John had been prescribed

Plavix since he suffered a stroke in 2006.

{¶ 4} As the attending physician, Dr. Von Visger met with John prior to the

procedure and discussed the risks associated with a renal biopsy. According to Dr. Von

Visger, such risks include bleeding and death. Dr. Von Visger admitted that he was

unaware that John had taken Plavix the day prior to the surgery despite its inclusion in

John’s list of medications. (Plaintiff’s Exhibit 3.) Dr. Von Visger further admitted that the

standard of care requires that the attending physician know what medications a patient

who is scheduled for a renal biopsy is taking.

{¶ 5} Dr. Von Visger classified John’s renal biopsy as “urgent” rather than

“emergent.” Accordingly, Dr. Von Visger testified that had he known that John was

taking Plavix, he would have advised John of the increased risks of the procedure and

recommended that he proceed that same day. Dr. Von Visger asserted that he would

not have wanted to delay the biopsy more than a few days; however, he admitted that

John could have rescheduled the biopsy for a later date.

{¶ 6} Jerry Chelleni, D.O., a nephrology fellow at OSU, testified that he also met

with John to obtain his consent for the renal biopsy prior to the procedure. Dr. Chelleni

likewise admitted that he was unaware that John had taken Plavix the day prior to the

surgery and that the standard of care requires that the physician know what medications

the patient is taking prior to performing a renal biopsy.

{¶ 7} As a part of Dr. Chelleni’s fellowship, he assisted Dr. Von Visger in

performing John’s ultrasound-guided renal biopsy. Dr. Chelleni stated that a renal

biopsy on a transplant kidney, such as John’s, is less complex then a biopsy on a native

kidney; however, the risk of striking a vein in the kidney remains unchanged. The

2

Plaintiffs’ September 14, 2012 motion for leave to file a reply brief is GRANTED, instanter.

Case No. 2010-01123 -3- ENTRY

procedure is performed by using ultrasound to locate the kidney. A biopsy needle is

then inserted into the cortex of the kidney to obtain a specimen. Ultimately, the biopsy

needle struck a vein and John suffered significant bleeding during the procedure,

subsequently succumbing to his injuries.3

{¶ 8} Plaintiffs allege that OSU’s medical staff deviated from the accepted

standard of care in that the medical staff was unaware that John had taken Plavix the

day prior to the surgery.

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

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

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

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

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

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

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

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

one of the syllabus.

{¶ 10} “To maintain a wrongful death action on a theory of medical negligence, a

plaintiff must show (1) the existence of a duty owing to plaintiff's decedent, (2) a breach

of that duty, and (3) proximate causation between the breach of duty and the death.”

Littleton v. Good Samaritan Hosp. & Health Ctr., 39 Ohio St.3d 86, 92 (1988), citing

Bennison v. Stillpass Transit Co., 5 Ohio St.2d 122 (1966), paragraph one of the

syllabus.

{¶ 11} Defendant’s expert, Eric Brown, M.D., a nephrologist who is board-certified

in both internal medicine and nephrology, testified that the most common risk of an

ultrasound-guided renal biopsy is bleeding. Dr. Brown admitted that the standard of

3

Neither Dr. Von Visger nor Dr. Chelleni recall who held the biopsy needle during the procedure.

Case No. 2010-01123 -4- ENTRY

care required that the attending physician know that a patient had taken Plavix the day

prior to the procedure. Dr. Brown further asserted that a nephrologist is required to

know all the medications that a patient is taking prior to performing a renal biopsy. Dr.

Brown opined that the standard of care required that the physician either have a

discussion with the patient about the increased risks associated with performing a renal

biopsy while the patient is on Plavix or postpone the procedure until the effects of Plavix

have worn off.

{¶ 12} Dr. Brown testified that he would prefer a patient stop taking Plavix ten

days prior to a biopsy. Dr. Brown admitted, however, that John’s renal biopsy did not

have to be performed on May 5, 2008, and that there was a range of days in which the

renal biopsy could be performed. Dr. Brown further admitted that the standard of care

requires that the nephrologist contact the prescribing physician to determine whether it

is safe to take the patient off Plavix for the renal biopsy.

{¶ 13} Plaintiff’s expert, Robert Toto, M.D., a professor of internal medicine,

board-certified in internal medicine and nephrology, testified that the standard of care

requires that the nephrologist performing a renal biopsy review the medications the

patient is taking. Dr. Toto opined that Dr. Chellini and Dr. Von Visger failed to meet the

standard of care by not knowing that John had taken Plavix the day prior to the

procedure. However, Dr. Toto admitted that it is not a breach of the standard of care to

cause bleeding during the biopsy or to perform a biopsy while a patient is on Plavix.

According to Dr. Toto, if a patient is on Plavix, the nephrologist is required to discuss the

increased risk of bleeding during the procedure with the patient. Dr. Toto further opined

that the standard of care requires that the nephrologist contact the prescribing physician

to determine whether it is safe for the patient to stop taking Plavix. According to Dr.

Toto, John’s renal biopsy was an elective procedure that could have been postponed.

Case No. 2010-01123 -5- ENTRY

{¶ 14} Defendant argues that plaintiffs’ medical claim is, in reality, a claim for lack

of informed consent, and inasmuch as plaintiffs failed to plead lack of informed consent,

they are not entitled to judgment in their favor.

{¶ 15} A medical claim premised upon the lack of informed consent requires proof

that:

{¶ 16} “(a) The physician fails to disclose to the patient and discuss the material

risks and dangers inherently and potentially involved with respect to the proposed

therapy, if any;

{¶ 17} “(b) the unrevealed risks and dangers which should have been disclosed

by the physician actually materialize and are the proximate cause of the injury to the

patient; and

{¶ 18} “(c) a reasonable person in the position of the patient would have decided

against the therapy had the material risks and dangers inherent and incidental to

treatment been disclosed to him or her prior to the therapy.” Nickell v. Gonzalez, 17

Ohio St.3d 136 (1985), syllabus.

{¶ 19} The court finds that plaintiffs’ claim is not a claim for lack of informed

consent. Had Dr. Chellini or Dr. Von Visger been aware that John had taken Plavix the

day prior to the procedure and failed to disclose the associated increased risks of the

procedure, then plaintiffs would have a claim for lack of informed consent. However, it

is not disputed that neither Dr. Von Visger nor Dr. Chellini knew that John had taken

Plavix the day prior to the procedure. Moreover, it is not disputed that the standard of

care requires that the nephrologist know what medications the patient is taking prior to

performing a renal biopsy. Furthermore, the court finds that John’s renal biopsy was not

an “emergent” procedure. Indeed, defendant’s expert acknowledged that John could

have rescheduled the biopsy for another day.

{¶ 20} Additionally, the court finds that the standard of care requires the physician

to contact the prescribing physician to determine whether it is safe for the patient to be

Case No. 2010-01123 -6- ENTRY

off Plavix. Finally, the court finds that the standard of care requires the physician to

have a discussion with the patient of the increased risks of the procedure while on

Plavix or to postpone the procedure. The court finds that neither Dr. Von Visger nor Dr.

Chellini met the standard of care. Neither Dr. Von Visger nor Dr. Chellini were aware

that John had taken Plavix; neither Dr. Von Visger nor Dr. Chellini contacted the

prescribing physician to determine whether it was safe for John to be off Plavix for the

procedure; and neither Dr. Von Visger nor Dr. Chellini discussed with John the

increased risks of being on Plavix during the procedure.

{¶ 21} Based upon the foregoing the court finds that plaintiffs have proven that

defendant breached the standard of care with respect to the medical treatment it

provided to plaintiffs’ decedent. Accordingly, judgment shall be rendered in favor of

plaintiffs.

Case No. 2010-01123 -7- ENTRY

Court of Claims of Ohio

The Ohio Judicial Center

65 South Front Street, Third Floor

Columbus, OH 43215

614.387.9800 or 1.800.824.8263

www.cco.state.oh.us

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

Plaintiffs

v.

THE OHIO STATE UNIVERSITY COLLEGE OF MEDICINE

Defendant

Case No. 2010-01123

Judge Clark B. Weaver Sr.

JUDGMENT ENTRY

{¶ 22} This case was tried to the court on the issue of whether defendant

breached the standard of care with respect to the medical treatment it provided to

plaintiffs’ decedent. The court has considered the evidence, and for the reasons set

forth in the decision filed concurrently herewith, judgment is rendered in favor of

plaintiffs. A case management conference is set for December 28, 2012, at 9:00 a.m.,

to discuss further proceedings. The court shall initiate the conference via telephone.

_____________________________________

CLARK B. WEAVER SR.

Judge

Case No. 2010-01123 -8- ENTRY

cc:

Daniel R. Forsythe Michael D. Shroge

Karl W. Schedler 55 Public Square, Suite 2222

Assistant Attorneys General Cleveland, Ohio 44113

150 East Gay Street, 18th Floor

Columbus, Ohio 43215-3130

003

Filed November 16, 2012

To S.C. Reporter March 22, 2013

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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