Opinion

Yates v. Ohio State Univ. Med. Ctr.

  • 2012 Ohio 6316
Court
Ohio Court of Claims
Filed
Jul 9, 2012
Status
Published
On the bench
Clark
Cited by
0 cases
Authority
More cited than 32.2%

The opinion

[Cite as Yates v. Ohio State Univ. Med. Ctr., 2012-Ohio-6316.]

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

WILMA S. YATES, et al.

Plaintiffs

v.

THE OHIO STATE UNIVERSITY MEDICAL CENTER

Defendant

Case No. 2010-02189

Judge Joseph T. Clark

DECISION

{¶ 1} Wilma Yates, hereinafter “plaintiff,” brought this action alleging medical

negligence; her husband, Roger Yates, also asserts a claim for loss of consortium. The

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

issue of liability.

{¶ 2} Plaintiff testified by way of deposition that in the spring of 2008, she visited

her primary care physician, Charles R. Keller, D.O., at his office in Logan, Ohio with

complaints of rectal bleeding and pain in her side. Dr. Keller referred plaintiff to see

Michael S. Tornwall, M.D., a general surgeon at the Hocking Valley Community Hospital

in Logan. Dr. Tornwall had performed a colonoscopy on plaintiff in 2003, at which time

he removed two polyps that had the potential to become cancerous. Dr. Tornwall

testified via deposition that when plaintiff was referred to him in 2008, based upon her

symptoms and history, he decided that she should undergo another colonoscopy.

{¶ 3} Dr. Tornwall performed the procedure on May 15, 2008, and in his operative

report he wrote, in part: “At the hepatic flexure there was what appears to be at least an

adenoma with a focus, it was concerning for possible invasive cancer. Multiple biopsies

were obtained of this region.” (Joint Exhibit 1A, p. 128.) (The hepatic flexure is the

point where the ascending colon turns into the transverse colon, and it is located next to

the liver.) The operative report noted that the polyp at the hepatic flexure was

ulcerated, and, while the report did not detail the size of the polyp, Dr. Tornwall later

testified that he could recall it being about 3 to 3.5 centimeters in diameter. Dr. Tornwall

stated that he felt it would be difficult for him to attempt to remove the polyp at that time

without risking perforation of the bowel. Also during the colonoscopy, Dr. Tornwall

attempted to remove what appeared to be a benign polyp from the sigmoid colon, but

he abandoned that effort because he was not able to obtain a good view of it and

because he was concerned that plaintiff’s anesthesia would soon wear off.

{¶ 4} As a result of his findings during the colonoscopy, Dr. Tornwall

recommended that plaintiff have a follow-up evaluation with a specialist in the next few

weeks regardless of the outcome of the biopsy studies. (On May 16, 2009, a pathology

report was issued which stated that the biopsy samples were determined to be benign

“portions of mildly inflamed hyperplastic polyp.” Joint Exhibit 4, p. 28.) Plaintiff testified

that Dr. Keller consequently arranged an appointment for her to see Mark Arnold, M.D.,

who practices colon and rectal surgery at The Ohio State University Medical Center.

Dr. Arnold is employed with defendant as a professor of surgery and is the vice

chairman of the department of surgery.

{¶ 5} Plaintiff and her husband met with Dr. Arnold at his office on June 3, 2008,

and it was determined at that time that plaintiff would undergo further evaluation via

colonoscopy. On July 24, 2008, Dr. Arnold performed the colonoscopy at The Ohio

State University Medical Center. During the procedure, Dr. Arnold removed a benign

polyp from the sigmoid colon, consistent with the polyp observed in that region by Dr.

Tornwall, and he also found diverticulosis in the sigmoid colon. According to his

operative report, the examination was otherwise normal and it was recommended that

plaintiff undergo a follow-up colonoscopy in two years. (Joint Exhibit 4, p. 2.)

{¶ 6} Plaintiff testified that after learning of Dr. Arnold’s findings and reviewing

film of the procedure, she grew concerned that he may have not sufficiently examined

the area of the colon with which Dr. Tornwall was concerned for a potentially malignant

polyp. Plaintiff stated that she telephoned Dr. Arnold’s office to inquire further and was

informed that Dr. Arnold had only seen inflammation in the area of concern, but that he

recommended for her to schedule another colonoscopy in six months. Dr. Arnold

testified that he has some recollection of plaintiff contacting his nurse, and that he

consequently reviewed her records and confirmed that no abnormalities were found at

the hepatic flexure. He added, however, that in light of plaintiff’s concern, he revised his

original recommendation regarding a follow-up colonoscopy such that she was advised

to have one in six months rather than in two years. (Joint Exhibit 4, p. 12.)

{¶ 7} Plaintiff stated that a few months later, she began to feel weak and

developed pain in the right side of her abdomen. As a result, she visited Dr. Keller for

an examination on February 20, 2009. That visit was followed by a series of diagnostic

tests over the next several weeks which revealed that plaintiff was suffering from

metastatic colon cancer with metastasis to the liver. Plaintiff elected to treat the cancer

through chemotherapy and a surgical procedure that removed half her colon, known as

a hemicolectomy. The pathology analysis that was performed after the hemicolectomy

revealed a malignant polyp that was located 2.5 centimeters, or about one inch, from

the ileocecal valve, near the bottom of the ascending colon. (Joint Exhibit 1B, p. 781.)

{¶ 8} In her complaint, plaintiff alleges that when Dr. Arnold performed the follow-

up colonoscopy, he failed to focus on the area of the colon with which Dr. Tornwall was

concerned, and that this caused a delay in the detection of her cancer and thereby

adversely affected her prognosis. “To prevail on a claim for medical negligence, a

plaintiff must demonstrate the following three elements: (1) the existence of a standard

of care within the medical community; (2) the defendant’s breach of that standard; and

(3) proximate cause between the defendant’s breach and the plaintiff’s injury.” Fritch v.

Univ. of Toledo College of Med., 10th Dist. No. 11AP-103, 2011-Ohio-4518, ¶ 6.

{¶ 9} “In order to establish medical [negligence], 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 or 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, 131 (1976).

{¶ 10} Plaintiffs presented expert testimony from Jeffrey Snow, M.D., who is

board certified in both colo-rectal and general surgery and practices the same in Fort

Lauderdale, Florida. In Dr. Snow’s opinion, the malignant polyp that was found near the

ileocecal valve after the hemicolectomy was the same polyp that Dr. Tornwall had

described as being near the hepatic flexure. Dr. Snow explained that in light of both the

unusual degree of twisting in plaintiff’s colon and the difficulty that Dr. Tornwall had in

maneuvering the scope through the colon, Dr. Tornwall’s identification of the polyp as

being near the hepatic flexure was a “rough location.” According to Dr. Snow, the

hepatic flexure is about five to six inches from the ileocecal valve, and based upon Dr.

Tornwall’s operative report and the pathology report from the hemicolectomy, he

believes that Dr. Tornwall’s stated area of concern was about four to five inches from

the actual location. He acknowledged, though, that the ileocecal valve is an easily

identifiable landmark that Dr. Tornwall recorded seeing during his colonoscopy and that

was very near the malignant polyp, yet Dr. Tornwall did not reference this feature in

describing the area that he was concerned about.

{¶ 11} Concerning the standard of care, Dr. Snow testified that when a patient is

referred for a follow-up or second-opinion colonoscopy, the physician receiving that

referral has a duty to understand why it was made, and that this requires reviewing the

appropriate medical records and, if necessary, contacting the referring physician. He

further testified that the care rendered by the physician must be focused on the area of

concern that prompted the referral.

{¶ 12} Dr. Snow testified that there is no documentation in the medical records to

show that Dr. Arnold paid special attention to the area of Dr. Tornwall’s concern, the

hepatic flexure, and that the records instead reflect that he performed a routine, general

colonoscopy. Dr. Snow opined that based upon the medical records in this case, he

believes that Dr. Arnold failed to pay special attention to the hepatic flexure, including

spending additional time in that area during the colonoscopy and making extra passes

with the scope in that area, and thereby violated the standard of care. He

acknowledged, however, that if Dr. Arnold had paid sufficient attention to the area of

concern, the standard of care of would have been met whether or not he specifically

documented any special attention given to that area.

{¶ 13} In Dr. Snow’s opinion, if Dr. Arnold had paid sufficient attention to the area

that Dr. Tornwall was concerned with at the hepatic flexure, he would have seen the

malignant polyp that was ultimately found a few inches from there. Nonetheless, Dr.

Snow admitted that colonoscopies are not foolproof in that they can fail to detect polyps,

particularly because of anatomical differences in patients, such as folding or twisting of

the bowel, or pockets of stool adhered to the bowel that can hide or obscure polyps. Dr.

Snow stated that plaintiff’s colon had more twisting than is normal.

{¶ 14} Plaintiffs also presented expert testimony from Barry Singer, M.D., who

practices medical oncology and hematology in Norristown, Pennsylvania, and who is

board certified in internal medicine, with sub-specialities in oncology and hematology.

Dr. Singer opined that the polyp described by Dr. Tornwall was the same polyp removed

during the hemicolectomy. According to Dr. Singer, Dr. Tornwall’s description of the

polyp in his operative report and in his deposition testimony was consistent with the

description of the polyp that was analyzed in the hemicolectomy pathology report. He

stated that the area of Dr. Tornwall’s concern, at the hepatic flexure, was about four to

five inches from the ileocecal valve region where the malignant polyp was found.

{¶ 15} Dr. Singer testified that the polyp removed during the hemicolectomy was

poorly differentiated, and that this characteristic is indicative of an aggressive, fast-

growing variety of cancer. But, he acknowledged that subsequent to plaintiff’s

diagnosis, the growth rate of the masses on plaintiff’s liver was actually documented to

be quite slow.

{¶ 16} Regardless, Dr. Singer’s opinion is that during the relevant period of time,

the cancer was growing at an aggressive pace. He opined that when Dr. Tornwall

performed his colonoscopy in May 2008, the cancer was at “stage two,” meaning that it

was confined to the bowel. He further opined that when Dr. Arnold performed the

follow-up colonoscopy in July 2008, the cancer had progressed to early stage three,

meaning that minimal metastasis to the lymph nodes had occurred. According to Dr.

Singer, in general, colon cancer is capable of curative treatment only until early stage

three. Dr. Singer thus opined that if plaintiff had been diagnosed with colon cancer at or

about the time of the follow-up colonoscopy in July 2008, it would have been possible

for her to survive the disease. But, Dr. Singer stated that plaintiff’s diagnosis did not

occur until the cancer was at stage four, meaning that it had metastasized from the

lymph nodes to other organs, and that a diagnosis at that stage carries no chance of

survival.

{¶ 17} Defendant presented expert testimony from William Ciroco, M.D., a colo-

rectal surgeon who practices in Detroit. Dr. Ciroco opined that the polyp Dr. Tornwall

described at the hepatic flexure was not the same polyp that was ultimately found near

the ileocecal valve. Dr. Ciroco testified that the ileocecal valve is an easily identifiable

landmark, that the hepatic flexure is in a distinctly separate area from the ileocecal

valve, and that it is very unlikely that an experienced colonoscopist such as Dr. Tornwall

would have so grossly mistaken the area of concern.

{¶ 18} In Dr. Ciroco’s opinion, what Dr. Tornwall observed was a hyperplastic

polyp, meaning a small lesion not believed to be pre-cancerous, at the hepatic flexure.

He further opined that this hyperplastic polyp was either substantially removed by virtue

of Dr. Tornwall removing several specimens for biopsy, or it resolved on its own. Dr.

Ciroco added that while Dr. Tornwall remembered in his deposition that the polyp he

saw was about three centimeters across, which is similar to the size of the malignant

polyp that was ultimately removed, he made no such size estimate in his operative

report.

{¶ 19} Dr. Ciroco stated that he performs between 250 and 300 colonoscopies

annually, including “second-opinion” or “follow-up” procedures. He explained that the

standard of care in treating patients who have been referred for such procedures is that,

if the physician can understand the basis for the referral upon reviewing the relevant

medical records, it is not necessary to contact the referring physician. He further

explained that the standard of care during the performance of the colonoscopy requires

that the area of concern be thoroughly examined, but also that the entire bowel be

examined, particularly because the area of concern may have been inaccurately

described. He opined that the 45-minute duration of the colonoscopy performed by Dr.

Arnold is longer than is normal for a routine colonoscopy, and it was an appropriate

length of time in which to perform a follow-up colonoscopy.

{¶ 20} Defendant also presented expert testimony from Ronald Blum, M.D., a

medical oncologist who serves as the director of the cancer center and programs at

both Beth Israel Medical Center and St. Luke’s Roosevelt Hospital Center in New York

City, and he is also a professor of medicine at Albert Einstein College of Medicine. Dr.

Blum is board certified in internal medicine, with a sub-specialty certification in medical

oncology.

{¶ 21} Dr. Blum opined that Dr. Tornwall’s findings regarding the area of concern

were ambiguous, and that what Dr. Tornwall probably saw was an inflammatory polyp.

Dr. Blum noted that the pathology report from the biopsy specimens of the hepatic

flexure indeed documented inflammation, and he explained that the malignant tumor

that was ultimately removed was approximately 20 centimeters from the hepatic flexure,

which he considers to be outside the area of Dr. Tornwall’s concern.

{¶ 22} Regarding the growth rate of plaintiff’s cancer, Dr. Blum acknowledged

that poorly differentiated masses such as plaintiff’s tend to be associated with a high

growth rate, but he stated a slow growth rate is actually demonstrated by the facts of

plaintiff’s case, such as the documented growth rate of the tumors on the liver, as well

as the fact that the metastasis to the liver was well-developed by the time it was

detected in March 2009. He added that by late 2008 and early 2009, when plaintiff

manifested pain and other clinical symptoms of stage four cancer, the cancer had

probably been present long before then without symptoms. Dr. Blum testified that this

type of cancer generally grows at a consistent rate over time, and that the known growth

rate that was documented for the tumors on the liver can thus be extrapolated backward

in time to determine the cancer’s overall progress.

{¶ 23} In Dr. Blum’s opinion, plaintiff had stage four cancer with metastasis to the

liver in the spring and summer of 2008, when both Dr. Tornwall and Dr. Arnold

performed their respective colonoscopies. According to Dr. Blum, a patient such as

plaintiff with metastatic colon cancer has a 20 percent survival rate over five years, and

his opinion is that plaintiff’s prognosis would have been the same even if Dr. Arnold had

detected the malignant tumor in July 2008.

{¶ 24} Upon review of the evidence presented at trial, the court finds that the

treatment rendered by Dr. Arnold complied with the relevant standard of care at all

times. The court finds that Dr. Arnold, who performs hundreds of “follow-up” or “referral”

colonoscopies every year, understood the concern that prompted plaintiff’s referral and

performed an appropriate follow-up colonoscopy that included a thorough evaluation of

the hepatic flexure of the colon, which is the location identified by Dr. Tornwall as

concerning for a possible malignant polyp.

{¶ 25} The court finds that the testimony of Drs. Blum and Ciroco demonstrates

that what Dr. Tornwall was concerned about at the hepatic flexure was actually a benign

inflammatory or hyperplastic polyp that either resolved on its own or was removed by

the taking of biopsy samples. Indeed, the six biopsy specimens that Dr. Tornwall took

from the hepatic flexure were determined upon pathology analysis to be benign

“portions of mildly inflamed hyperplastic polyp.” (Joint Exhibit 4, p. 28.)

{¶ 26} The pathology analysis performed after the hemicolectomy revealed one

malignant polyp that was located about one inch from the ileocecal valve that serves as

landmark at the bottom of the ascending colon, several inches from the hepatic flexure

that marks the top of the ascending colon. The court finds that the malignant polyp was

thus outside the area of concern that had prompted plaintiff’s referral to Dr. Arnold.

While Dr. Arnold’s credible testimony demonstrates that he paid special attention to the

hepatic flexure, no matter how thoroughly he examined that area, he would not have

seen a polyp there. According to Dr. Ciroco, a physician performing a follow-up

colonoscopy must also thoroughly look beyond the area of concern inasmuch as the

referring physician could have inaccurately identified it, and Dr. Ciroco convincingly

testified that that was exactly what Dr. Arnold did in this case.

{¶ 27} Although Dr. Arnold admittedly failed to detect the polyp near the ileocecal

valve, the expert witnesses in this case agreed that colonoscopies are not perfect

procedures and that due to issues such as folding or twisting of the bowel, or pockets of

stool adhering to the bowel, the standard of care does not require that every polyp be

detected.

{¶ 28} Additionally, the court finds that the greater weight of the evidence does

not support the causation element of plaintiffs’ claim. In the court’s opinion, Dr. Blum’s

testimony concerning the growth rate of plaintiff’s cancer corresponds to the medical

records better and was more persuasive than the testimony of Dr. Singer, and

according to Dr. Blum, plaintiff’s cancer had already metastasized to the liver by the

time of the follow-up colonoscopy. All the experts in this case agreed that once

metastasis to the liver had occurred, plaintiff’s prognosis was terminal.

{¶ 29} Given that the court finds that plaintiffs have failed to prove their claim of

medical negligence, the derivative claim for loss of consortium also must fail. Bowen v.

Kil-Kare, Inc., 63 Ohio St.3d 84, 93 (1992).

{¶ 30} Based on the foregoing, judgment shall be entered in favor of defendant.

Court of Claims of Ohio

The Ohio Judicial Center

65 South Front Street, Third Floor

Columbus, OH 43215

614.387.9800 or 1.800.824.8263

www.cco.state.oh.us

WILMA S. YATES, et al.

Plaintiffs

v.

THE OHIO STATE UNIVERSITY MEDICAL CENTER

Defendant

Case No. 2010-02189

Judge Joseph T. Clark

JUDGMENT ENTRY

{¶ 31} This case was tried to the court on the issue of liability. The court has

considered the evidence and, for the reasons set forth in the decision filed concurrently

herewith, judgment is rendered in favor of defendant. Court costs are assessed against

plaintiffs. The clerk shall serve upon all parties notice of this judgment and its date of

entry upon the journal.

_____________________________________

JOSEPH T. CLARK

Judge

cc:

Ashley L. Oliker Gordon D. Evans II

Karl W. Schedler Mark E. Defossez

Assistant Attorneys General 495 South High Street, Suite 300

150 East Gay Street, 18th Floor Columbus, Ohio 43215

Columbus, Ohio 43215-3130

001

Filed July 9, 2012

To S.C. Reporter January 16, 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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