The opinion
[Cite as Carr v. Ohio Dept. of Rehab. & Corr., 2022-Ohio-3649.]
JASON L. CARR Case No. 2021-00083JD
Plaintiff Magistrate Gary Peterson
v. DECISION OF THE MAGISTRATE
OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION
Defendant
{¶1} Plaintiff, an inmate in the custody and control of defendant, brings this action
for medical malpractice arising out of medical treatment plaintiff received in August 2017.
The case proceeded to trial before the undersigned magistrate. For the reasons that
follow, the magistrate finds that plaintiff failed to prove his case by a preponderance of
the evidence.
Findings of Fact
{¶2} In the beginning of August 2017, plaintiff was transferred to Corrections
Reception Center (CRC). At that time, plaintiff was in good physical health and considered
himself physically active while frequently engaging in activities such as soccer,
weightlifting, and running. Plaintiff had no previous history of cardiac or pulmonary
difficulties. Although he was on a prescription for Paxil, plaintiff believed that it was only
to treat bipolar disorder and not anxiety, with which he claimed he had not been previously
diagnosed. However, it was established that plaintiff did suffer from anxiety. (Plaintiff’s
Exhibit 1; Defendant’s Exhibit A, bates 000007).
{¶3} On August 15, 2017, plaintiff was playing basketball in the prison recreation
yard with a large group of men. Plaintiff described the game as rough, and as plaintiff
attempted to rebound the basketball, his full weight landed on his left leg and plaintiff fell
to the ground in pain. Medical personnel responded and subsequently transported
plaintiff to the medical center where he received x-rays, Motrin, ice, and crutches, and
Case No. 2021-00083JD -2- DECISION
thereafter plaintiff returned to his dormitory. (Plaintiff’s Exhibit 2; Defendant’s Exhibit A,
bates 000014-000018).
{¶4} Kenneth Saul, D.O., a board-certified physician in family medicine and chief
medical officer at CRC, examined plaintiff on August 17, 2017. Dr. Saul diagnosed
plaintiff with a depressed fracture of the left tibial plateau, and noted that plaintiff was
unable to bear weight, had mild swelling at the fracture site, and had pain and tenderness
proximally to the tibia. The tibial plateau is the superior part of the tibia and is the bone
directly below the knee. Plaintiff’s vital signs were normal, and plaintiff was otherwise
healthy. Dr. Saul referred plaintiff for an orthopedic appointment, prescribed Ultram for
pain management, moved plaintiff to the medical dormitory, and provided plaintiff with a
wheelchair. (Plaintiff’s Exhibit 3; Defendant’s Exhibit A, bates 000019-000020).
{¶5} On August 18, 2017, plaintiff was in the shower when he began experiencing
chest pain and shortness of breath. Plaintiff related that he nearly fell to the ground, but
another inmate caught him and helped him to a chair. Medical personnel escorted plaintiff
to the medical department where a nurse performed an EKG. Plaintiff related to the nurse
that he experienced shortness of breath and a rapid heart rate, although he was no longer
experiencing those symptoms when he arrived in the medical department. The nurse
subsequently contacted Dr. Saul, who was unsure whether the nurse contacted him once
or twice regarding this visit. Dr. Saul, who reads all EKGs ordered at the facility, read
plaintiff’s EKG and determined that it was normal. The physical copy of the EKG is not in
the medical records. If plaintiff had a pulmonary embolism, the EKG would have shown
a right strain pattern, but there was no such pattern. The nurse reported no edema while
diagnosing plaintiff with anxiety. The nurse advised plaintiff to contact the nearest staff
member when experiencing chest pain and to return to the clinic if there was no
improvement by August 20, 2017. Plaintiff was subsequently returned to the medical
dormitory. (Plaintiff’s Exhibit 4; Defendant’s Exhibit A, bates 000022-000025).
Case No. 2021-00083JD -3- DECISION
{¶6} Plaintiff continued to experience chest pain subsequent to August 18, 2017,
and plaintiff reported to corrections officers that he was experiencing chest pain although
plaintiff added that the pain was not to the same degree as the first episode on August 18,
2017. Plaintiff and corrections officers did not report chest pain to any medical personnel
prior to plaintiff’s follow-up appointment with Dr. Saul on August 22, 2017, and there is no
persuasive evidence that plaintiff attempted to return to the clinic as the nurse instructed
on August 18, 2017.
{¶7} On August 22, 2017, Dr. Saul examined plaintiff at a follow-up appointment
for complaints of chest pain. Dr. Saul documented that plaintiff’s chest pain was left
anterior and worse with deep breath. Dr. Saul noted that plaintiff did not have leg swelling
or ankle swelling although plaintiff’s calf was ecchymotic (black and blue discoloration),
which is to be expected because of plaintiff’s fracture disrupting blood flow. Dr. Saul
performed a physical examination and took plaintiff’s vitals including his heart rate,
respiratory rate, and blood oxygenation, which were all normal. Dr. Saul noted that
plaintiff was not in any apparent distress, did not have shortness of breath, did not have
calf tenderness, or a cord. Dr. Saul added that plaintiff was standing at some point during
the visit. Dr. Saul concluded that plaintiff was experiencing anxiety, although he did not
refer plaintiff to the mental health department because plaintiff was already on the mental
health case load. Dr. Saul ruled out other causes for plaintiff’s chest pain because of the
physical exam, EKG, vital signs, and plaintiff’s previous anxiety diagnosis. (Plaintiff’s
Exhibit 5; Defendant’s Exhibit A, bates 000028-000029).
{¶8} On August 24, 2017, plaintiff was transferred to the Franklin Medical Center
(FMC) for an orthopedics consultation with Dr. Sullivan. After evaluating plaintiff,
Dr. Sullivan ordered a prophylactic dose of Lovenox and venous doppler ultrasound. Dr.
Sullivan also noted calf tenderness, which was a new clinical finding. While Dr. Sullivan’s
note is dated August 23, 2017, it was established by multiple witnesses and other medical
records that Dr. Sullivan saw plaintiff on August 24, 2017, not on the 23rd.
Case No. 2021-00083JD -4- DECISION
{¶9} Shortly after the consultation with Dr. Sullivan, plaintiff experienced a rapid
change in his clinical status. Plaintiff began sweating and his heart began beating rapidly;
plaintiff subsequently passed out. Plaintiff recalled that he awoke and was surrounded
by medical personnel. Plaintiff attempted to use the restroom at that time. Kristen
Lawson, R.N., encountered plaintiff as he was lying on the floor. Plaintiff was adamant
that he needed to use the restroom and Lawson helped plaintiff to the toilet; however,
plaintiff became unresponsive while on the toilet and did not have a pulse. Lawson and
another medical staff member lifted plaintiff off the toilet and placed him on the ground.
After confirming that plaintiff did not have a pulse, Lawson commenced CPR. Multiple
nurses were helping with the resuscitative efforts. The nursing team also used the AED
to shock plaintiff’s heart on multiple occasions. Plaintiff did not have a pulse for 15
minutes, but plaintiff’s pulse did return after the efforts of defendant’s medical staff, and
he was transported by squad to the emergency room at Ohio State University (OSU).
Plaintiff recalled waking up in the ambulance. (Plaintiff’s Exhibits 6-8, 21; Defendant’s
Exhibit A, bates, 000031-000041, Defendant’s Exhibit B).
{¶10} Medical personnel at OSU determined that plaintiff suffered an acute
massive saddle pulmonary embolism with extension into the bilateral lungs along with
pulmonary infarcts. Plaintiff also suffered rib fractures due to the CPR chest
compressions. (Plaintiff’s Exhibits 9-12). Plaintiff remained at OSU for several days and
was discharged back to FMC on August 28, 2017. (Plaintiff’s Exhibit 23; Defendant’s
Exhibit A, bates 000043-000053). Plaintiff was transferred back to CRC on October 20,
2017. (Plaintiff’s Exhibit 24; Defendant’s Exhibit A, bates 000443-000444).
{¶11} Plaintiff was subsequently diagnosed with post traumatic stress disorder and
has what he describes as flashbacks to these events. Plaintiff remains on a blood thinner
medication and gets his blood checked on a weekly basis. Plaintiff no longer participates
in sports, weightlifting, or running because he fears what could happen if he were to be
injured. Otherwise, plaintiff has recovered from his injuries.
Case No. 2021-00083JD -5- DECISION
Conclusions of Law and Analysis
{¶12} Plaintiff’s claim is based upon a theory of medical malpractice. “In order to
establish medical malpractice, a plaintiff must show: (1) the standard of care recognized
by the medical community, (2) the failure of the defendant to meet the requisite standard
of care, and (3) a direct causal connection between the medically negligent act and the
injury sustained.” Tobin v. Univ. Hosp. E., 10th Dist. Franklin No. 15AP-153, 2015-Ohio-
3903, ¶ 14, citing Stanley v. Ohio State Univ. Med. Ctr., 10th Dist. Franklin No. 12AP-
999, 2013-Ohio-5140, ¶ 19. “Expert testimony is required to establish the standard of
care and to demonstrate the defendant’s alleged failure to conform to that standard.”
Reeves v. Healy, 192 Ohio App.3d 769, 2011-Ohio-1487, 950 N.E.2d 605, ¶ 38 (10th
Dist.), citing Bruni v. Tatsumi, 46 Ohio St.2d 127, 130-131, 346 N.E.2d 673 (1976). The
Supreme Court of Ohio established the legal standard for medical malpractice in Bruni:
{¶13} “In evaluating the conduct of a physician and surgeon charged with
malpractice, the test is whether the physician, in the performance of his service, either
did some particular thing or things that physicians and surgeons, in that medical
community, of ordinary skill, care and diligence would not have done under the same or
similar circumstances, or failed or omitted to do some particular thing or things which
physicians and surgeons of ordinary skill, care and diligence would have done under the
same or similar circumstances. He is required to exercise the average degree of skill,
care and diligence exercised by members of the same medical specialty community in
similar situations.” Id. at 129-130. “The instant case, ‘in simple terms, was a battle of the
experts’ as to whether the standard of care was breached.” Gysegem v. Ohio State Univ.
Wexner Med. Ctr., 10th Dist. Franklin No. 20AP-477, 2021-Ohio-4496, ¶ 74 (internal
citations omitted).
{¶14} Plaintiff presented the expert testimony of Donato Borrillo, M.D., a physician
licensed to practice medicine in Ohio and nine other states. Dr. Borrillo received his
medical degree from State University of New York and predominantly practices in
Case No. 2021-00083JD -6- DECISION
occupational medicine, preventative medicine and wound care, and hyperbarics.
Dr. Borrillo also holds a Juris Doctorate from Case Western Reserve University, practicing
law for approximately four or five hours per week.
{¶15} Dr. Borrillo testified that he would have prescribed an oral anticoagulant on
August 17, 2017, because the orthopedics consultation was not going to occur for another
week. Dr. Borrillo explained that there is an increased risk of developing a deep vein
thrombosis (DVT) with tibial plateau fractures and because of the length of time between
his diagnosis and referral to orthopedics, he would be concerned about potential clotting.
Dr. Borrillo added that pain in plaintiff’s leg is a sign of a DVT and that plaintiff was
reporting pain even as far back as August 17, 2017. Dr. Borrillo also expressed
skepticism regarding the nursing note dated August 18, 2017, chiefly because the nurse
wrote that the EKG was normal. Dr. Borrillo testified that a nurse cannot read an EKG as
it is beyond the scope of a nurse’s practice.
{¶16} Dr. Borrillo opined that plaintiff was experiencing a DVT and had venous
thromboembolisms occurring between the 18th through the 22nd. Dr. Borrillo noted that
plaintiff began experiencing chest pain and that his chest pain progressively worsened.
{¶17} Dr. Borrillo testified that on August 22, 2017, plaintiff had signs and
symptoms of a DVT, but plaintiff’s symptoms of chest pain were incorrectly attributed to
anxiety, which he considered to a be a breach of the standard of care. Dr. Borrillo added
that the medical records do not support anxiety as a diagnosis because there is no formal
mental status exam, no referral for mental health treatment, and no reference to past
medical history of anxiety. Dr. Borrillo believed that plaintiff should have been prescribed
an anticoagulant rather than diagnosed with anxiety.
{¶18} Due to an error in the medical record, Dr. Borrillo mistakenly believed that
Dr. Sullivan saw plaintiff on August 23, 2017; however, as noted above, the overwhelming
evidence established that Dr. Sullivan saw plaintiff on August 24, 2017. Dr. Borrillo
testified that Dr. Sullivan ordered an ultrasound and prescribed Lovenox at a prophylactic
Case No. 2021-00083JD -7- DECISION
dose, rather than a treating dose. Dr. Borrillo explained that Dr. Sullivan was
prophylaxing, rather than treating an embolism or a clot, because of the tibial plateau
fracture and a concern for a possible DVT. Ultimately, Dr. Borrillo believed that, had a
blood thinner been prescribed as the standard of care required in his view, plaintiff would
not have experienced a saddle pulmonary embolism on August 24, 2017.
{¶19} Defendant presented the expert testimony of Michael Yaffe, a board-certified
physician in internal medicine who is starting his 40th year of practice and maintains a full
internal medicine practice. Dr. Yaffe earned his medical degree from Ohio State
University in 1980.
{¶20} Dr. Yaffe testified that someone who has a DVT, which is a clot that forms in
a vein, should have inflammation, tenderness, swelling, redness, warmth, and/or possibly
a dilated vein that feels like a cord. Dr. Yaffe explained that a pulmonary embolism is a
clot that has formed in a vein and breaks off, moving toward the lungs and gets lodged in
a pulmonary artery. Dr. Yaffe testified that chest pain, cough, drop in oxygen saturation
level, coughing up blood, pain while taking a deep breath, and possibly a change in heart
rhythm are signs of a DVT and a pulmonary embolism. Dr. Yaffe added that he has
treated hundreds of patients with such complications.
{¶21} Dr. Yaffe opined that the standard of care does not require treatment of a
tibial plateau fracture with blood thinners. Dr. Yaffe explained that the main risk of
anticoagulant medications is increased risk of bleeding. Dr. Yaffe clarified that the
standard of care contemplates the fact that plaintiff is non-ambulatory and that it is not
the standard of care to use prophylactic blood thinner just because the patient is non-
ambulatory. Dr. Yaffe testified that the risk of using a prophylactic blood thinner outweighs
any benefit to the prophylaxis.
{¶22} Dr. Yaffe testified that following plaintiff’s complaint of chest pain on August
18, 2017, the EKG finding was normal. Dr. Yaffe explained that an EKG is a
Case No. 2021-00083JD -8- DECISION
straightforward way to determine any irregularity of heart rhythm or heart rate, blood flow
around the heart, and strain on the heart muscle.
{¶23} Dr. Yaffe testified that on August 22, 2017, plaintiff was not exhibiting signs
of a DVT. Dr. Yaffe explained that there was no inflammation, no swelling, no redness,
no increased warmth, and no changes in pulse. Dr. Yaffe testified that plaintiff was not
exhibiting signs of a pulmonary embolism such as air hunger or compromised air flow and
that plaintiff’s oxygen level was normal, blood pressure was normal, and heart rate was
normal. Dr. Yaffe explained that the most consistent finding of a pulmonary embolism is
a fast heart rate, which plaintiff did not have. Dr. Yaffe added that plaintiff did not have
calf tenderness or cords. Dr. Yaffe noted that plaintiff has a past medical history of
anxiety. Concerning plaintiff’s complaints of chest pain, Dr. Yaffe explained that chest
pain is not significant on its own and that patients who have an untreated pulmonary
embolism tend to follow a course that has some symptoms but none of the typical
symptoms were observed by medical staff. As a result, Dr. Yaffe concluded that plaintiff
was not experiencing a DVT or a pulmonary embolism.
{¶24} Dr. Yaffe testified that on August 24, 2017, when Dr. Sullivan evaluated
plaintiff, plaintiff had a normal heart rate. Dr. Yaffe explained that Dr. Sullivan noted that
plaintiff’s calf was tender and ordered a venous doppler but did not indicate that it was
emergent; Dr. Sullivan also prescribed Lovenox at a prophylactic dose rather than a
treating dose. Dr. Yaffe testified that shortly after the evaluation with Dr. Sullivan, plaintiff
experienced a sudden development of a pulmonary embolism that led to cardiac arrest
and was transferred to OSU for treatment. Dr. Yaffe explained that a pulmonary embolism
can develop in as little as 10 minutes and that there is nothing in the medical records to
support a conclusion that plaintiff had a pulmonary embolism prior to August 24, 2017;
however, Dr. Yaffe acknowledged that it was possible that blood clots broke off and
traveled to plaintiff’s chest causing pain.
Case No. 2021-00083JD -9- DECISION
{¶25} Dr. Yaffe testified that the expected course for a patient who survives a
pulmonary embolism is for the clot to be reabsorbed and resolved in the body over time.
Dr. Yaffe testified that plaintiff’s lung infarct would completely heal on its own. Dr. Yaffe
opined that plaintiff did not suffer long-term harm or permanent injury as a result of these
events.
{¶26} As stated previously, plaintiff failed to prove his claim by a preponderance of
the evidence. The magistrate finds that Dr. Yaffe’s testimony was more authoritative and
persuasive than the testimony of Dr. Borrillo. Dr. Yaffe practices entirely in internal
medicine and routinely sees patients similar to plaintiff. By contrast, Dr. Borrillo primarily
focuses on occupational medicine, preventative medicine and wound care, and
hyperbarics. Dr. Borrillo’s experience of dealing with patients with DVTs is primarily in
the area of wound care, whereas Dr. Yaffe routinely deals with fractures and frequently
treats patients with DVTs.
{¶27} Regarding the standard of care, Dr. Yaffe credibly and persuasively testified
that the standard of care did not require the prescription of blood thinners before August
24, 2017. Plaintiff had no prior history or family history of DVTs or clotting. Plaintiff was
otherwise healthy at that time. Furthermore, Dr. Yaffe credibly testified that a tibial plateau
fracture is not treated with a blood thinner. Dr. Yaffe explained that there are risk factors
involved with prophylactic blood thinner treatment, such as bleeding, and that such risks
outweigh the potential benefit. Dr. Yaffe further explained that all patients with this type
of fracture are going to be non-ambulatory and that the standard of care takes that into
account.
{¶28} With respect to plaintiff’s chest pain that he experienced beginning on August
18, 2017, Dr. Yaffe credibly explained the signs and symptoms common to both a DVT
and a pulmonary embolism. The medical records do not report the typical features such
as calf tenderness, calf swelling, redness, increased warmth, or a cord. Additionally, the
medical records do not report difficulty breathing, cough, drop in oxygenation, or a change
Case No. 2021-00083JD -10- DECISION
in heart rhythm. Plaintiff underwent an EKG on August 18, 2017, and the EKG finding
was normal. Plaintiff’s vitals were normal both on August 18, 2017, and August 22, 2017.
As a result, plaintiff’s medical records do not support the conclusion that plaintiff was
suffering from a DVT or a pulmonary embolism beginning as early as August 18, 2017,
as Dr. Borrillo claimed.
{¶29} Furthermore, Dr. Borrillo expressed skepticism regarding the nursing note
dated August 18, 2017. Nevertheless, Dr. Saul credibly testified that he reviews all EKGs
that are ordered and that he reviewed plaintiff’s EKG results, which were normal.
Additionally, Dr. Borrillo incorrectly identified Dr. Sullivan’s evaluation as having occurred
on August 23, 2017; Dr. Borrillo acknowledged during his examination that he had
difficulty understanding the timeline of events. However, the evidence established that
Dr. Sullivan evaluated plaintiff on August 24, 2017. As a result, Dr. Borrillo was under the
mistaken impression that Dr. Sullivan’s orders for a venous doppler and a prophylactic
dose of blood thinner were ignored for perhaps a full day. However, it was established
that plaintiff suffered a saddle pulmonary embolism shortly after meeting with Dr. Sullivan.
{¶30} The evidence established that plaintiff experienced a sudden change in
status on August 24, 2017. Dr. Sullivan’s finding of calf tenderness on August 24, 2017,
was a change in clinical status that was not recorded earlier. Furthermore, rather than
providing a treating dose of blood thinner, Dr. Sullivan prescribed a prophylactic dose,
indicating no emergent threat. Additionally, Nurse Lawson described plaintiff as talking
and interacting followed by a rapid change in his clinical status to the point where he was
experiencing a cardiac arrest. As a result, the magistrate finds that Dr. Yaffe’s opinion
that plaintiff developed a sudden pulmonary embolism on August 24, 2017, is more
credible and persuasive than the opinion’s offered by Dr. Borrillo.
{¶31} Plaintiff argues that defendant’s medical staff improperly attributed plaintiff’s
complaints of chest pain beginning on August 18, 2017, to anxiety. However, Dr. Yaffe
credibly testified that chest pain itself is not significant and that plaintiff was not suffering
Case No. 2021-00083JD -11- DECISION
any significant heart or lung issues on August 18 or August 22, 2017. In short, plaintiff’s
vitals, results of his physical examination, and EKG findings do not support the profile of
someone suffering from a DVT or a pulmonary embolism prior to August 24, 2017.
{¶32} Plaintiff bore the burden of proving by a preponderance of the evidence that
defendant’s medical staff breached the standard of care. Plaintiff failed to meet that
burden, and as a result, it is recommended that judgment be entered in favor of defendant.
{¶33} 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).
GARY PETERSON
Magistrate
Filed September 21, 2022
Sent to S.C. Reporter 10/13/22