Fritch v. Univ. of Toledo College of Medicine

[Cite as Fritch v. Univ. of Toledo College of Medicine, 2011-Ohio-368.]

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

SHIRLEY A. FRITCH

Plaintiff

v.

THE UNIVERSITY OF TOLEDO COLLEGE OF MEDICINE

Defendant

Case No. 2008-03564

Judge Joseph T. Clark

DECISION

{¶ 1} Plaintiff brought this action alleging medical negligence. The issues of

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

liability.

{¶ 2} In May 2006, plaintiff first saw Krishna Mallik, M.D., an orthopedic surgeon

employed by defendant, for left shoulder pain that had existed for several years. After

physical therapy did not significantly improve her condition, she was scheduled for

surgery on her left shoulder. On August 23, 2006, Drs. Mallik and Phillip Nowicki, a

resident, performed a hemiarthroplasty procedure during which time a Copeland

prosthesis was placed in plaintiff’s left shoulder joint. Plaintiff asserts that during the

surgery, she sustained an injury to her brachial plexus, which has resulted in permanent

harm, including nerve damage and a “clawed” left hand.

PLAINTIFF

{¶ 3} Plaintiff testified that she was referred to Dr. Mallik for pain and difficulty of

movement with her left shoulder; that she signed a consent form prior to the surgery;

that when she was in the recovery room her arm was “frozen up”; that a few days after

the procedure she was taken to the Emergency Room at defendant’s hospital for

treatment of her pain; and that during the first follow-up visit after the surgery, she

described her condition to Dr. Mallik as feeling as if she were “paralyzed.”

{¶ 4} On cross-examination, plaintiff stated that at the time of the surgery she

lived alone but that after the surgery, a health aide came to her house for two hours per

day on week days and helped her put on the sling that had been prescribed. However,

plaintiff stated that on the weekends, she had no one to help her, and she could not put

the sling on by herself.

KRISHNA MALLIK, M.D.

{¶ 5} Krishna Mallik, M.D., testified that she is currently licensed in Arizona as

an orthopedic surgeon and that when she worked at defendant’s hospital she was also

an assistant professor of medicine. Dr. Mallik stated that she first examined plaintiff on

May 16, 2006, during which time she prescribed physical therapy to increase range of

motion. However, plaintiff’s pain persisted and a decision was made to perform

surgery. On August 23, 2006, Dr. Mallik, with the assistance of Dr. Nowicki, performed

a humeral head resurfacing, which is a version of a hemiarthroplasty.1 Prior to plaintiff’s

surgery, Dr. Mallik had performed this type of surgery approximately five times per

month for 1.5 years. Dr. Mallik explained that plaintiff was given a left inter-scalene

block of anesthesia prior to surgery, which she described as a method to decrease the

function of the nerves off of the cervical spine in order to reduce overall pain during

surgery.

{¶ 6} Dr. Mallik testified that she performed the procedure in the “beach chair”

position, where plaintiff was seated upright with her arm secured against her body. Dr.

Mallik explained that in such position, the arm is never placed outward, and no traction

1

Plaintiff signed an “informed consent to medical or surgical procedure” on August 10, 2006,

wherein she authorized Dr. Mallik and a resident physician to perform a “left shoulder arthroscopy,

subacromial decompression and rotator cuff repair” and a “possible open hemiarthroplasty.” (Defendant’s

Exhibit A, Page 41.)

is used. Dr. Mallik stated that if something in surgery does not go as planned, her

standard practice is to note it in the operative report; that she did not note anything out

of the ordinary in plaintiff’s operative report; and that she was present in the operating

room for the entire surgical procedure.

{¶ 7} According to Dr. Mallik, on August 31, 2006, when plaintiff presented for

her post-operative visit, she was not wearing her sling properly. Dr. Mallik testified that

she had prescribed an “ultra sling” for plaintiff to wear postoperatively, and described it

as a pillow that goes around the patient’s waist, with a sling attached to the pillow with

velcro. Dr. Mallik explained that the proper position to wear the sling is with the elbow

resting in the apex or back end of the sling with the sling extending beyond the

fingertips so that the entire upper extremity is protected. The pillow then is positioned

like a belt around the patient’s waist to support the sling and take any pressure off of the

neck. However, Dr. Mallik noted at the post-operative visit that plaintiff’s arm was

hanging midway out from the sling; that the pillow had been twisted around her body;

that the manner in which plaintiff was wearing the sling was putting pressure

underneath her armpit; and that plaintiff’s arm was in a dependent position, causing

swelling. Dr. Mallik further stated that plaintiff’s improper use of the ultra sling was

putting pressure on her neck, because instead of the pillow acting as the support, the

neck was acting as support. Dr. Mallik delayed removal of the staples from surgery due

to the swelling of plaintiff’s arm. On September 7, 2006, Dr. Mallik saw plaintiff again

and urged her to either move in with a family member or move to an extended care

facility.

{¶ 8} Dr. Mallik testified that she had been hesitant to perform surgery on

plaintiff because she feared that plaintiff did not have adequate support at home for

post-operative protocol. Dr. Mallik stressed that it was very important that plaintiff not

use her left arm for six weeks after surgery. Dr. Mallik stated that she would not have

agreed to perform the surgery if she had known that plaintiff’s son stayed with her for

only one day after surgery and that the home health aide was there for only two hours

per day and not on the weekends.

{¶ 9} Dr. Mallik examined plaintiff’s shoulder on a bi-weekly basis for 11 months

after her surgery. Dr. Mallik testified that she was “very concerned” about plaintiff’s

social situation and about her not wearing her sling properly.

{¶ 10} Dr. Mallik opined that there were two possible causes of plaintiff’s injury:

either not wearing the sling properly or a complication from the inter-scalene block used

in anesthesia. Dr. Mallik could not state which possibility was the more probable cause

of injury.

PHILIP NOWICKI, M.D.

{¶ 11} Philip Nowicki, M.D., testified that he is licensed to practice medicine in

Ohio; that in 2006 he was a resident; that plaintiff’s surgery was the first time that he

had assisted with a Copeland procedure; that he did not recall anything out of the

ordinary during the procedure; that both he and Dr. Mallik stayed in the operating room

at all times during the procedure; and that it is critical that there not be excessive

traction or stretching of the shoulder during the procedure.

STEVEN FARRELL, M.D.

{¶ 12} Steven Farrell, M.D., testified that he is board-certified in physical

medicine with a rehabilitation specialty and that he treats patients with neurologic or

musculoskeletal disabilities. Dr. Farrell stated that plaintiff was his patient prior to the

surgery; that she complained to him of shoulder pain; that he ordered an MRI and

referred her to Dr. Mallik for surgery; and that he saw plaintiff for follow-up visits after

the surgery.

{¶ 13} On October 25, 2006, Dr. Farrell performed an electro diagnostic study, an

EMG and nerve conduction studies of plaintiff’s left arm and shoulder. Dr. Farrell

diagnosed plaintiff with a severe brachial plexopathy, which involved damage to both

the myelin and the nerve fibers. Dr. Farrell stated that the nerve conduction study

shows that there is a nerve injury, but does not show what caused the injury.

{¶ 14} Dr. Farrell opined that he could not draw any direct conclusion about the

cause of plaintiff’s brachial plexopathy, but noted that her injury is permanent. Dr.

Farrell further stated that plaintiff did not suffer from a brachial plexopathy prior to her

surgery.

ANTHONY BRAIDA, M.D.

{¶ 15} Anthony Braida, M.D., testified that he is licensed to practice medicine in

Ohio, that he holds a specialization in anesthesiology, and that he performed the inter-

scalene block on plaintiff prior to her surgery. Dr. Braida explained that he used

ultrasound to assist with visualization of the nerves between the anterior scalene and

middle scalene muscles so that the needle could be placed with greater accuracy. Dr.

Braida has performed this procedure routinely since 1995, and he stated that plaintiff

tolerated the procedure well. Dr. Braida testified that in his opinion, the inter-scalene

block was not the cause of plaintiff’s nerve damage. Dr. Braida explained that during

the inter-scalene block, the needle is inserted into a location on the neck where the

trunks of the nerves are situated. If the placement of the needle for the inter-scalene

block were the cause of the nerve damage, Dr. Braida believed that the damage would

have been located higher up in the neck where the needle was inserted. However, the

medical records reveal that the nerve damage occurred distal to the infraspinatus

muscle, beyond the trunks of the nerve. Dr. Braida stated that he could not render an

opinion as to the proximate cause of the brachial plexopathy.

JEROME UNATIN, M.D.

{¶ 16} Plaintiff’s expert, Jerome Unatin, M.D., testified that he is licensed to

practice medicine in the states of California and Florida; that he has practiced

orthopedic surgery since 1971; that he is board-certified in orthopedic surgery; and that

he has performed hemiarthroplasty procedures.

{¶ 17} Dr. Unatin stated that the operative report from plaintiff’s surgery, which he

described as “a very good report,” showed that there were no complications during the

surgery. However, subsequent to surgery, plaintiff was diagnosed with a brachial nerve

palsy, which meant that she suffered neurological deficits to her upper extremity. Dr.

Unatin opined that “something happened in surgery” to cause the nerve damage. Dr.

Unatin explained that the nerve damage could have been caused by either some

traction on the nerves during surgery; some bleeding that the surgeons did not see; by

stretching the nerve when they stretched the arm; or from a complication during the

inter-scalene block used during anesthesia. Dr. Unatin opined that the most probable

causes of plaintiff’s injury were either the stretching of the nerve in surgery from

excessive moving of the arm or over-retracting near the nerve. Dr. Unatin further

opined that either of those two occurrences represent a deviation from the standard of

care.

{¶ 18} Dr. Unatin admitted that he has never used a Copeland prosthesis in

performing a hemiarthroplasty of a shoulder; that moving the arm and manipulating the

shoulder are required in order to properly place the prosthesis and that the operative

note does not reveal the cause of plaintiff’s injury. However, in Dr. Unatin’s opinion, it is

highly unlikely that plaintiff’s injury occurred subsequent to surgery absent some

“traumatic” occurrence.

DR. ROBERT GOITZ, M.D.

{¶ 19} Defendant’s expert, Robert Goitz, M.D., testified that he is an associate

professor in the department of orthopedic surgery and the chief of hand and upper

extremity surgery at the University of Pittsburgh Medical Center; that he is board-

certified in orthopedic surgery; that 20 to 30 percent of his practice is shoulder surgery;

that he is a specialist in nerve surgery involving the upper extremity; and that a large

part of his practice deals with brachial plexus injury.

{¶ 20} Dr. Goitz explained that a Copeland hemiarthroplasty is the replacement

of the cup side of the ball and socket of the shoulder and that nerve injury and

dysfunction are known risks of such surgery. Dr. Goitz testified that unless there is an

identified cut to the nerve, it is usually supposition to find the cause of nerve

dysfunction.

{¶ 21} Dr. Goitz opined that there are many different potential causes of plaintiff’s

brachial plexopathy, but that there is no evidence of a severing of the nerves. Dr. Goitz

identified two potential causes of plaintiff’s nerve injury. First, a stretch injury, which he

explained is always a potential cause of nerve dysfunction after extremity surgery.

Second, brachial neuritis, which he defined as nerve dysfunction caused by the stress

of surgery itself. Dr. Goitz identified plaintiff’s risk factors as the surgery itself; her age;

her weight; and her limited range of motion. Dr. Goitz also stated that plaintiff’s post-

operative course, including not wearing her sling properly and not having constant in-

home care, could have resulted in nerve injury. Dr. Goitz further testified that the

contracture or “clawing” of plaintiff’s left hand was not the result of a nerve injury itself;

rather it was a result of “disuse” or neglect or limiting the motion of her arm subsequent

to the surgery. Although Dr. Goitz could not render an opinion as to the cause of

plaintiff’s injury, he did opine that he saw no evidence that either Dr. Mallik or Dr.

Nowicki violated the standard of care. Dr. Goitz conceded that plaintiff did not suffer

from a brachial plexus injury prior to her surgery.

LAW

{¶ 22} “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 (1976), 46 Ohio St.2d 127, paragraph

1 of the syllabus.

{¶ 23} “[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.

FINDINGS

{¶ 24} Upon review of all the evidence, the court finds that plaintiff has failed to

prove that acts or omissions by Drs. Mallik or Nowicki proximately caused her brachial

plexopathy. Dr. Unatin’s testimony that the most probable cause of plaintiff’s injury was

either stretching the nerves in surgery or over-retracting is not supported by the weight

of the evidence. For example, Dr. Mallik testified that the procedure was performed in

the “beach chair” position to ensure that no excessive traction was used with regard to

plaintiff’s arm. Moreover, the court finds that the testimony of Dr. Goitz was more

persuasive than the testimony of Dr. Unatin. The court finds that there were multiple

possible causes of plaintiff’s injury, including something that happened during surgery,

the surgery itself, a complication from the inter-scalene block, or plaintiff’s failure to

wear the ultra sling properly. The court finds that plaintiff has failed to prove by a

preponderance of the evidence that the failure to perform the surgical procedure in

accordance with the standard of care was the proximate cause of plaintiff’s injury.

RES IPSA LOQUITUR

{¶ 25} Plaintiff argues that the doctrine of res ipsa loquitur should be applied in

this case; however, the court does not agree. The doctrine of res ipsa loquitur is a rule

of evidence which allows the trier of fact to draw an inference of negligence from the

facts presented. Morgan v. Children’s Hospital (1985), 18 Ohio St.3d 185, 187. The

two prerequisites which must be met to warrant the application of the rule are: “1) that

the instrumentality causing the injury was, at the time of the injury, or at the time of the

creation of the condition causing the injury, under the exclusive management and

control of the defendant; and 2) that the injury occurred under such circumstances that

in the ordinary course of events it would not have occurred if ordinary care had been

observed.” Morgan, supra, quoting Hake v. Wiedemann Brewing Co. (1970), 23 Ohio

St.2d 65, 66-67.

{¶ 26} Dr. Goitz testified that he could not render an opinion to a reasonable

degree of medical probability as to the proximate cause of plaintiff’s injury. However,

one possible cause of injury that he recognized was plaintiff’s failure to wear the ultra

sling properly. Moreover, Dr. Goitz testified that nerve injury is a known risk of a

hemiarthroplasty. Therefore, the court finds that neither prerequisite for the doctrine of

res ipsa loquitur has been met.

{¶ 27} For the foregoing reasons, the court finds that plaintiff has failed to prove

her claims of medical negligence by a preponderance of the evidence and, accordingly,

judgment shall be rendered 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

SHIRLEY A. FRITCH

Plaintiff

v.

THE UNIVERSITY OF TOLEDO COLLEGE OF MEDICINE

Defendant

Case No. 2008-03564

Judge Joseph T. Clark

JUDGMENT ENTRY

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

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

entry upon the journal.

_____________________________________

JOSEPH T. CLARK

Judge

cc:

Alan L. Mollenkamp Anne B. Strait

411 North Michigan Street, Suite 300 Naomi H. Maletz

Toledo, Ohio 43604 Assistant Attorneys General

150 East Gay Street, 18th Floor

Columbus, Ohio 43215-3130

HTS/cmd

Filed January 11, 2011

To S.C. reporter January 27, 2011