Opinion
2018-00127JD
04-05-2023
DAWN DAVISON, Admr. Plaintiff v. THE OHIO STATE UNIVERSITY WEXNER MEDICAL CENTER Defendant
Sent to S.C. Reporter 6/2/2023
DECISION
PATRICK E. SHEERAN JUDGE
I. Introduction
{¶1} Plaintiff Dawn Davison, as Administrator of the Estate of Brooks H. Davison, deceased, has brought a civil lawsuit against Defendant The Ohio State University Wexner Medical Center (Defendant). Davison's case stems from the death of her 41-year-old husband, Brooks H. Davison, on February 7, 2016, following Brooks' hospitalization at The Ohio State University Wexner Medical Center (OSUWMC) on February 1-5, 2016. A bench trial on the issue of liability was held by means of Zoom video conferencing.
{¶2} Dawn Davison essentially maintains that the care provided to Brooks Davison by Defendant, through certain physicians and a certified nurse practitioner, fell below the applicable standard of care, and this, in turn, proximately caused Brooks Davison's death. Defendant essentially contends that its medical providers acted within the applicable standard of care and that its medical providers' care was not the proximate cause of Brooks Davison's death.
{¶3} Upon careful consideration of the evidence that was presented at trial (including witness testimony and documentary evidence), as well as the parties' arguments, the Court finds that Dawn Davison has proven claims of medical negligence and wrongful death by a preponderance of the evidence. The Court holds that Dawn Davison is entitled to a judgment in her favor on the issue of liability.
II. Relevant Procedural History
{¶4} On January 31, 2018, Dawn Davison, as Administrator of the Estate of Brooks H. Davison, deceased, filed a Complaint against Defendant, which Defendant answered. Later, on March 21, 2018, Dawn Davison, as Administrator of the Estate of Brooks H. Davison, filed an Amended Complaint against Defendant, wherein Davison asserted a survivorship claim, claims of medical negligence and wrongful death, and wherein she demanded a jury trial and punitive damages. Defendant did not file an Answer to Davison's Amended Complaint.
Neither Dawn Davison's Complaint nor Dawn Davison's Amended Complaint is accompanied by letters of appointment from an Ohio probate court to establish that Davison has been appointed administrator of Brooks Davison's estate. At trial Dawn Davison did not offer evidence, such as a copy of Ms. Davison's letters of appointment from an Ohio probate court, to establish that Dawn Davison is the Administrator of Brooks H. Davison's estate, nor did she ever testify that she was the administrator of the estate. Notably, however, Defendant has defended the case without challenging Dawn Davison's capacity to prosecute this case, and the parties have prosecuted the case with the apparent understanding that Dawn Davison is the duly appointed administrator of Brooks Davison's estate. The Court therefore finds that Defendant has forfeited any error related to Ms. Davison's authority to prosecute this case as the Administrator of Brooks Davison's estate. See Barker v. McCoy, 4th Dist. Pike No. 14CA849, 2015-Ohio-3127, ¶ 9, citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997) (a party "forfeits any error that arises during the trial court proceedings if that party fails to bring the error to the court's attention at a time when the trial court could avoid or correct the error"). See Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), syllabus (holding that, in appeals of civil cases, the plain error doctrine "is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself").
{¶5} On Defendant's motion, the Court dismissed Davison's survivorship claim and the Court sua sponte dismissed a demand for punitive damages. The Court bifurcated issues of liability and damages for trial and the Court struck Davison's demand for a jury trial.
Entry of Partial Dismissal, May 24, 2018.
Entry, July 31, 2018; Magistrate Order, October 12, 2021.
III. Background
{¶6} Brooks Davison was a husband to Dawn Davison, a father to three children (including an autistic son), a person with a history of back pain who had undergone previous back surgery, a person with a history of Type II diabetes mellitus and obesity, and a person with a history of opioid abuse.
{¶7} For six years before Brooks Davison's hospitalization at OSUWMC in February 2016, Brooks had been treated for opioid dependence with Suboxone by Beth T. Tranen, D.O., to assist Brooks with maintaining sobriety. Suboxone is medication that contains buprenorphine (opioid partial agonist) and naloxone (opioid antagonist). Suboxone partially binds to certain receptors in the brain and serves to reverse the euphoric effects of an opioid.
{¶8} Before Brooks Davison's surgery in February 2016, Brooks received care for several years at OSUWMC for his back pain. After conservative therapy failed to relieve Brooks' symptoms, Brooks underwent back surgery at OSUWMC on February 1, 2016. William J. Thoman, M.D., an attending physician, performed the surgery, with assistance from other staff. Heather R. Freier, C.N.P., a certified nurse practitioner, also provided care to Brooks Davison. Dr. Thoman served as Ms. Freier's consulting physician.
{¶9} After surgery, the neurosurgery service consulted Defendant's Anesthesiology Pain Service to assist with the management of Brooks' post-operative pain. On February 2, 2016, Amy E. Baumann, M.D., who at the time was a resident, evaluated Brooks under the supervision of Richard A. Bryant, M.D., an anesthesiologist and attending physician with the Anesthesiology Pain Service. With Dr. Bryant's approval, Dr. Baumann ordered that 8 milligrams of Suboxone should be continued, Gabapentin should be continued three times a day at a dosage of 800 milligrams, oxycodone should be increased to 10-20 milligrams every three hours for pain as needed, and morphine at then-current settings should be continued through a pump controlled by Brooks Davison.
{¶10} On February 3, 2016, Thomas J. Smith, M.D., an anesthesiologist and attending physician with the Defendant's Anesthesiology Pain Service, replaced Dr. Bryant as Brooks' attending physician on the Anesthesiology Pain Service. On or about February 3, 2016, Brooks refused to take Suboxone as ordered, claiming that he and Dr. Tranen had a preset plan that Brooks would not take Suboxone while Brooks was hospitalized. Dr. Smith had an "in-depth discussion" with Brooks and Brooks agreed to "contact his suboxone subscriber when discharged for further management." Dr. Smith did not contact Dr. Tranen to confirm that she and Brooks had a preset plan to forgo Suboxone while Brooks was hospitalized. Dr. Smith did, however, informally discuss Brooks' refusal to take Suboxone with Dr. Bryant.
{¶11} With Dr. Smith's approval, on February 3, 2016, Dr. Baumann ordered the continuation of Suboxone at a dose of 8 mg per day, ordered the continuation of Gabapentin at a dose of 800 mg three times a day, increased oxycodone to 25-35 mg every three hours, as needed, for pain, discontinued the use of the pump to dispense morphine, and ordered that intravenous morphine at 2-6 mg every 4 hours should be administered for breakthrough pain.
{¶12} On February 4, 2016, with Dr. Smith's approval, another resident assigned to the Anesthesiology Pain Service, Sanaz K. Mohseni, D.D.S., ordered the discontinuation of Suboxone because Brooks Davison had not been taking Suboxone, the continuation of Gabapentin at a dose of 800 mg three times a day, the continuation of oxycodone at a dosage of 30-45 mg every three hours as needed, and the continuation of intravenous morphine at 2-6 mg every 4 hours for breakthrough pain. Also, with Dr. Smith's approval, the Anesthesiology Pain Service stated that it "will sign off on this patient at this time. "
{¶13} Before Davison's discharge from OSUWMC on February 5, 2016, Heather R. Freier, C.N.P. edited a discharge summary. In the discharge summary, Freier noted that Brooks had exhibited sinus tachycardia, but Freier further noted, "OK to discharge with this level of sinus tachy and follow up outpatient." Freier also noted that Brooks had exhibited "Acute Hypoxic Respiratory Failure," but Freier noted, "Improving. Currently on 1-2Lnc, not on home oxygen, wean O2, incentive spiro-resolved prior to discharge." Freier further noted: "Following medical optimization and approval from Dr. Thoman, the patient was discharged. At the time of discharge the patient was neurologically stable, ambulating with assist, tolerating a diet and post operative pain was well managed with oral pain medications. Appropriate follow up has been outlined in the discharge instructions. Disposition planning in addition to discharge medication management was discussed with the attending physician of record."
{¶14} Heather R. Freier, C.N.P. also documented in Brooks Davison's medical record: "OARRS report reviewed. No concerns noted. Patient will be provided script for IR oxycodone at discharge for management of acute post operative pain." With the approval of Dr. Thoman, C.N.P. Freier issued prescriptions for diazepam, 5 mg tablet (with instructions to take the medication every 8 hours, as needed, for muscle spasms), and oxycodone 30 mg tablet (with instructions to take 1-1.5 tablets every 3 hours as needed for moderate pain and to wean the medication as post-operative pain improves). Brooks Davison also was instructed to resume his therapy with Suboxone. Brooks Davison was further instructed to follow up with Dr. Tranen on February 17, 2016, as scheduled, and Brooks was instructed to discuss a sleep apnea workup with his primary care physician. No one from Defendant's staff, however, discussed Brooks' post-discharge medication plan with Dawn Davison.
{¶15} On the day of Brooks' discharge from OSUWMC, a member of Defendant's staff brought Brooks in a wheelchair to a loading area outside OSUWMC where Dawn met Brooks. Brooks was thereafter transferred from the wheelchair to the family vehicle.
{¶16} On the way to the family home in Kingston, Ohio, Brooks filled prescriptions, which Ms. Freier had issued, at a pharmacy in Chillicothe, Ohio. After Brooks returned home, Dawn assisted Brooks with keeping track of the timing and dosing of his prescribed medications. About 1:00 a.m. to 2:00 a.m. on Brooks' first night home from the hospital, Brooks awoke. Dawn assisted Brooks with changing his bandages because there was seepage from Brooks' wound. It was unclear to Dawn whether Brooks had urinated on himself, but, according to Dawn, Brooks did not seem to exhibit "clarity." On Brooks' second day home from the hospital, Brooks woke up in the morning and his mental state was "clearer," according to Dawn. Brooks took a nap during the mid-afternoon. In the evening, Brooks had dinner with his family and Brooks later played cards with family members. Brooks retired for the evening at about 11:00 p.m. or 11:30 p.m. At about 2:00 a.m. to 2:30 a.m., Brooks woke Dawn to assist him with changing bedding. Brooks later fell asleep. About 6:00 a.m. on February 7, 2016, Dawn awoke, but, when she awakened, she did not hear any snoring from Brooks. Dawn touched Brooks and Brooks was "cold to the touch." Dawn called 911 and began cardiopulmonary resuscitation. Emergency medical personnel and a sheriffs deputy responded to the scene. A sheriffs deputy informed Dawn that Brooks had died.
{¶17} Susan L. Allen, D.O., a forensic pathologist and a deputy coroner with the Montgomery County Coroner's office, performed an autopsy on Brooks Davison's body, which would include a toxicology report. Based on the foregoing, Dr. Allen opined about Brooks Davison's cause of death, stating: "It is my opinion that the cause of death of Brooks Davison is: Multiple drug intoxication (oxycodone and others)." John A. Gabis, M.D., who was the Ross County Coroner at the time, issued a Coroner's Verdict in which Dr. Gabis listed Brooks Davison's cause of death as "Multiple Drug Overdose Including Oxycodone And Benzodiazepines." A Supplementary Medical Certification, which was signed by Dr. Gabis, lists Brooks Davison's immediate cause of death as "Multiple Drug Overdose Including Oxycodone And Benzodiazepines" and the manner of death as "Accident."
IV. Law and Analysis
A. Dawn Davison is required to prove her civil claims by a preponderance of the evidence. Defendant may be liable for the negligent acts of its employees.
{¶18} Under Ohio law, Dawn Davison is required to prove her civil claims by a preponderance of the evidence. See Merrick v. Ditzler, 91 Ohio St. 256, 260, 110 N.E. 493 (1915) ("[i]n the ordinary civil case the degree of proof, or the quality of persuasion as some text-writers characterize it, is a mere preponderance of the evidence"); Weishaar v. Strimbu, 76 Ohio App.3d 276, 282, 601 N.E.2d 587 (8th Dist.1991). A preponderance of the evidence "is defined as that measure of proof that convinces the judge or jury that the existence of the fact sought to be proved is more likely than its nonexistence." State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, ¶ 54.
{¶19} On the trial of a civil case (or criminal case), the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The Court is the trier-of-facts in this case. The Court therefore is free to give weight to the evidence, and the Court is free to believe all, part, or none of the testimony of the witnesses, including the parties' expert witnesses, who have appeared at trial before the Court in this case. See State v. Green, 10th Dist. Franklin No. 03AP-813, 2004-Ohio-3697, ¶ 24.
{¶20} Under Ohio law, a specialized hospital should be held to a higher standard of care because it specializes. Wilburn v. Cleveland Psych. Inst, 126 Ohio App.3d 153, 156, 709 N.E.2d 1220 (10th Dist.1998); see Johnson v. Grant Hosp., 32 Ohio St.2d 169, 178, 291 N.E.2d 440 (1972) ("[a] general hospital, which ordinarily does not and is not equipped to treat mental patients, should not be held to the same standard of care as a hospital which is operated and equipped to provide care for a patient who has displayed a tendency to commit suicide"); Sabol v. Richmond Hts. Gen. Hosp., 111 Ohio App.3d 598, 602, 676 N.E.2d 958 (8th Dist.1996) ("[c]rucial to Johnson is the idea that a general hospital caring for a suicidal patient cannot be held to the same standard of care as a specialized hospital which routinely deals with such patients").
{¶21} Here, the evidence shows that Defendant is an academic and tertiary medical center, which contains a neurosurgery service and anesthesiology pain service, among other specialties. Defendant therefore should be held to a standard of care consistent with an academic medical center that provides neurosurgery services and services for acute pain.
{¶22} The Ohio Supreme Court has recognized that, in the medical context, "because only individuals practice medicine, only individuals can commit medical malpractice." Natl. Union Fire Ins. Co. v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939, ¶ 14. But the Ohio Supreme Court also has recognized that, under the doctrine of respondeat superior, a hospital "is liable for the negligent acts of its employees." Berdyck v. Shinde, 66 Ohio St.3d 573, 577, 613 N.E.2d 1014 (1993), citing Klema v. St. Elizabeth's Hosp. of Youngstown, 170 Ohio St. 519, 166 N.E.2d 765 (1960). Under the doctrine of respondeat superior, Defendant therefore may be liable for any negligent acts of its employees in the medical care that was provided to Brooks Davison.
B. Dawn Davison has proven claims of medical negligence and wrongful death by a preponderance of the evidence.
{¶23} The Ohio Supreme Court has identified elements to establish negligence of a hospital employee as follows: "To establish the negligence of a hospital employee, an injured party must demonstrate that a duty of care was owed to the injured party by the employee, that the employee breached that duty, and that the injuries concerned were the proximate result of the breach." Berdyck v. Shinde, 66 Ohio St.3d 573, 577, 613 N.E.2d 1014 (1993).
Under Ohio law, cause in fact and proximate cause are distinct. See Ackison v. Anchor Packing Co., 120 Ohio St.3d 228, 2008-Ohio-5243, 897 N.E.2d 1118, ¶ 48. The standard test for establishing cause in fact is "but for" causation. Ackison at ¶ 48. In Anderson v. St. Francis-St. George Hosp., Inc., 77 Ohio St.3d 82, 84-85, 671 N.E.2d 225 (1996), the Ohio Supreme Court explained that "a defendant's conduct is a cause of the event (or harm) if the event (or harm) would not have occurred but for that conduct; conversely, the defendant's conduct is not the cause of the event (or harm) if the event (or harm) would have occurred regardless of the conduct." (Emphasis sic). And in Ackison, the Ohio Supreme Court stated, "Once cause in fact is established, a plaintiff then must establish proximate cause in order to hold a defendant liable." Ackison at ¶ 48. In Jeffers v. Olexo, 43 Ohio St.3d 140, 143, 539 N.E.2d 614 (1989), the Ohio Supreme Court discussed the concept of proximate cause:
"Proximate cause is a troublesome phrase. It has a particular meaning in the law but is difficult to define. It has been defined as: That which immediately precedes and produces the effect, as distinguished from a remote, mediate, or predisposing cause; that from which the fact might be expected to follow without the concurrence of any unusual circumstance; that without which the accident would not have happened, and from which the injury or a like injury might have been anticipated.' 65 C.J.S. § 103 Negligence pp. 1130-1131. * * *" Corrigan v. E. W. Bohren Transport Co. (C.A. 6, 1968), 408 F.2d 301, 303.Accord Aiken v. Indus. Com., 143 Ohio St. 113, 117, 53 N.E.2d 1018 (1944) (noting that in the field of torts "the proximate cause of an event is that which in a natural and continuous sequence, unbroken by any new, independent cause, produces that event and without which that event would not have occurred"). In Clinger v. Duncan, 166 Ohio St. 216, 223, 141 N.E.2d 156 (1957), the Ohio Supreme Court noted: "Ordinarily, the existence of both negligence and proximate cause are, in a jury trial, questions of fact for the determination of the jury under proper instructions from the court."
{¶24} The Court concludes that, as a matter of law, Defendant, through its employees and agents, owed a duty of care to Brooks Davison that complied with accepted standards of care. See Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989) ("[t]he existence of a duty in a negligence action is a question of law for the court to determine. * * * There is no formula for ascertaining whether a duty exists").
The Ohio Supreme Court has stated:
"The modern provision of medical care is a complex process becoming increasingly more complicated as medical technology advances. Large teaching hospitals * * * care for patients with teams of professionals, some of whom never actually come in contact with the treated patient but whose expertise is nevertheless vital to the treatment and recovery of patients.
"* * *
"Medical professionals may be held accountable when they undertake to care for a patient and their actions do not meet the standard of care for such actions as established by expert testimony. * * *" (Citations omitted.) * * *.Lownsbury v. VanBuren, 94 Ohio St.3d 231, 236-237, 762 N.E.2d 354 (2002), quoting Mozingo v. Pitt Cty. Mem. Hosp., Inc., 331 N.C. 182, 188-189, 415 S.E.2d 341 (1992).
{¶25} With respect to the standard of care that should apply to medical professionals, the Ohio Supreme Court has instructed that "the standard of care applicable to medical professionals is to exercise the degree of care that a medical professional of ordinary skill, care, and diligence would exercise under similar circumstances." Cromer v. Children's Hosp. Med. Ctr of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, 29 N.E.3d 921, ¶ 27, citing Bruni v. Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673 (1976), at paragraph one of the syllabus. In Cromer, the Ohio Supreme Court explained:
Although the standard of care for a medical professional is heightened, it does not necessarily supplant all consideration of foreseeability. As part of their standard of care, medical professionals are expected to be able to recognize certain symptoms of illness and injury, and they are expected to be aware of the associated risk of harm. * * * In other words, they are expected to foresee a risk of harm that a medical professional of ordinary skill, care, and diligence would foresee under similar circumstances. And just as with the general negligence standard, it necessarily follows that we would not expect medical professionals to guard against a risk of harm that a medical professional of ordinary skill, care, and diligence would not foresee. See, e.g., Keebler v. Winfield Carraway Hosp., 531 So.2d 841, 844-845 (Ala. 1988), citing Fernandez v. Baruch, 52 N.J. 127, 244 A.2d 109 (1968) (explaining that a physician does not have a duty to take measures to prevent a patient from committing suicide if the patient's suicide was not reasonably foreseeable under generally accepted medical standards). Accordingly, foreseeability of harm is relevant to a physician's standard of care, and a correct, general statement of the law regarding the
standard of care or the breach of that standard includes the element of foreseeability.Cromer at ¶ 28.
{¶26} Whether a standard of care articulated by an expert witness governs a duty of care is a question of fact, determined from all relevant facts and circumstances. See Berdyck v. Shinde, 66 Ohio St.3d 573, 584, 613 N.E.2d 1014 (1993); Burton v. Elsea, 4th Dist. Scioto No. 97CA2556, 1999 Ohio App. LEXIS 6401, at *32 (Dec. 27, 1999), citing Strother v. Hutchinson, 67 Ohio St. 2d 282, 423 N.E.2d 467 (1981) ("disputes as to both the conduct of the parties and the standard of care are questions for the jury"). The Tenth District Court of Appeals has explained:
With few exceptions, the trier of fact must determine the applicable standard of care in a medical malpractice case from the testimony of expert witnesses. In Turner v. Children's Hosp., Inc. (1991), 76 Ohio App.3d 541, 602 N.E.2d 423, we explained:
Ordinarily, the issue of whether the physician has employed the requisite care must be determined from the testimony of experts, unless the standard of care is sufficiently obvious that laymen could reasonably evaluate the physician's conduct. * * * Such expert testimony serves to aid the trier of fact in determining if there was malpractice. For, although customary practice is evidence of what a reasonably prudent physician would do under like or similar circumstances, it is not conclusive in determining the applicable standard required. Id. at 548.Wheeler v. Wise, 133 Ohio App.3d 564, 569, 729 N.E.2d 413 (10th Dist. 1999).
{¶27} Both parties have presented the Court with expert testimony about the applicable standard of care. The Court has carefully considered and weighed all the expert testimony in this case. The Court generally finds the testimony of Defendant's experts to be less persuasive than the testimony of Plaintiff's experts, especially the testimony of Plaintiff's expert witness, Timothy Collins, M.D.
{¶28} At trial, Drs. Bryant and Smith of Defendant's Anesthesiology Pain Service credibly testified about the painful nature of the surgery that Brooks Davison had undergone and the need for increased dosages of opioids to control Brooks Davison's post-operative pain in view of Davison's six-year history of therapy with Suboxone. But, in the Court's view, noticeably absent from Drs. Bryant's and Smith's collective testimony was a conscious realization that, given Brooks Davison's history of opioid dependence (which required medication-assisted therapy with Suboxone), Brooks Davison had a heightened susceptibility to misuse opioids. While Drs. Bryant and Smith may be well versed in the mechanisms of pain management, at the time of Drs. Bryant and Smith's care of Brooks Davison, Drs. Bryant and Smith appear to have been less well versed about pain management with a patient, like Brooks Davison, who had a susceptibility to misuse prescribed opioid medications. Moreover, Heather Freier, C.N.P., who issued Brooks' prescriptions at discharge, also appears to have been less well versed about pain management with a patient, like Brooks Davison, who had a susceptibility to misuse prescribed opioid medications.
{¶29} The theory behind pain management in this case was to overcome the pain that resulted from the back surgery with higher and higher doses of oxycodone. While this certainly helps overcome pain, it also greatly increases the susceptibility of a patient, any patient, to become addicted to opioids. And it was well known, in 2016 and for several years before that, that oxycodone is highly addictive. When one adds that the patient here was a person recovering from an opioid addiction who had been on Suboxone for six years, the risk of misuse of opioid medication was certainly and entirely foreseeable. A person recovering from opioid addiction remains subject to relapse, and the failure to consult with an addictionologist or other suitably qualified professional does not meet the standard of care when caring for a patient whose sobriety was dependent on medication-assisted-therapy with Suboxone.
{¶30} With respect to prescription drugs, it has been stated: "Prescription drugs are likely to be complex medicines, esoteric in formula and varied in effect. As a medical expert, the prescribing physician can take into account the propensities of the drug, as well as the susceptibilities of his patient. His is the task of weighing the benefits of any medication against its potential dangers. The choice he makes is an informed one, an individualized medical judgment bottomed on a knowledge of both patient and palliative." Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1276 (5th Cir.1974). Here, at the time of Brooks Davison's discharge, the evidence shows that neither Dr. Thoman, Ms. Freier or Defendant's Anesthesiology Pain Service appear to have consciously weighed the benefits of the prescribed medications at the prescribed dosages with the potential dangers to Brooks Davison who had a demonstrated history of opioid misuse.
{¶31} Dr. Thoman is a surgeon and was in overall charge of this patient. Having said that, he properly deferred the issue of pain management to the Anesthesiology Pain Service, for the reason that pain control was their specialty, not his. The wisdom of this decision is clear, since Dr. Thoman admittedly had, for example, a very limited knowledge of Suboxone, which is understandable, given that he is not a "pain management" doctor.
{¶32} But while the Anesthesiology Pain Service weighed the benefits of using oxycodone versus the risks of doing so, that evaluation was limited in scope to the goal of reducing Brooks' pain and did not adequately consider the aftereffects of the large doses of oxycodone he was being prescribed. There was, clearly, an insufficient amount of thought given here to the nature of the patient: he had been addicted to opioids; he was in recovery, but that recovery depended in large part on his use of Suboxone. Discharging such a person from the hospital, while he was under the influence of a large dose of opioids, with a prescription requiring him to take large doses of that drug, while leaving him to his own devices while under the influence of oxycodone, was a highly risky, and, quite frankly, irresponsible thing to do. This did not come close to meeting the standard of care.
{¶33} Thus, despite Defendant's contention that its medical professionals' care of Brooks Davison was within the standard of care, it is sufficiently obvious that even a layperson could reasonably conclude that discharging Brooks with oxycodone at a high dose, as well as providing Brooks with a prescription for diazepam, while failing to contact Dr. Tranen before discharge to arrange follow-up care sooner than February 17, 2016, deviated from the applicable standard of care. Indeed, Dr. Bryant agreed at trial that, if no one from Defendant's pain management service ever contacted Dr. Tranen and asked for her insight, then that would be "suboptimal." And, when Dr. Bryant was asked, "And if the patient's given suboptimal care at OSU, I mean, that's -that's not good for the patient?," Dr. Bryant answered, "I can't really argue that." Here, it is sufficiently obvious to the Court that even a layperson could reasonably evaluate that Defendant's providers' decision to discharge Brooks Davison-a person with a susceptibility to misuse prescribed opioid medications-with oxycodone at a high dose, as well as diazepam, without contacting Dr. Tranen before Brooks Davison's discharge from OSUWMC, could foreseeably result in a very adverse outcome, because of Defendant's medical providers' failure to provide care within the the applicable standard of care. See Cromer v. Children's Hosp. Med. Ctr of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, 29 N.E.3d 921, ¶ 28 (medical professionals "are expected to foresee a risk of harm that a medical professional of ordinary skill, care, and diligence would foresee under similar circumstances").
{¶34} And this Court wants to make clear that mere contact with Dr. Tranen- permission for which Brooks ostensibly would have given-would still be insufficient for the clear needs of this patient. It was incumbent on Defendant to NOT voluntarily discharge this patient until: (1) Dr. Tranen was notified about Brooks' upcoming discharge, and the conditions attendant to it; especially given Brooks' prescriptions and the fact that Brooks was on high doses of oxycodone; (2) Dr. Tranen was asked by OSUWMC to immediately follow up with Brooks, and (3) if Dr. Tranen were not immediately available to see Brooks, OSUWMC afforded an opportunity for Dr. Tranen to provide her input into a suitable aftercare plan for Brooks following his discharge from the hospital to assist Brooks with maintaining his sobriety. While this may-or may not- have resulted in a different outcome in this case, Defendant surely would have a stronger argument that it met the standard of care had it done these things here.
The argument that Defendant would have to do this for every patient who is in recovery from addiction, or even a patient who potentially may seek recovery, is without merit. First, this patient was treated with Suboxone; not all persons who are in recovery are treated with Suboxone. Second, and more importantly, the presence of an addictionologist, or other professional skilled in addiction issues, would greatly help in the decision-making process and would certainly go a long way to meeting the standard of care.
{¶35} Defendant urges, however, that even assuming for the sake of argument that its medical providers failed to act within the applicable standard of care, Dawn Davison has failed to prove by a preponderance of the evidence that Defendant's providers' medical negligence proximately caused Brooks Davison's death. In support of this contention, Defendant relies on the expert testimony of Cody J. Wenthur, Pharm.D., Ph.D., who essentially opined that, based on his analysis of toxicology results from Brooks Davison's post-mortem examination, Brooks may have taken a higher dose of oxycodone than prescribed. Defendant also calls the Court's attention to the deposition testimony of Timothy P. Rohrig, Ph.D., and discrepancies in the number of pills that were found in the Davison home at the time of Brooks' death. Defendant also seemingly suggests that Brooks Davison may have secretly kept a supply of oxycodone at the Davison home, which was unknown to Dawn Davison, and Brooks may have taken such oxycodone in addition to the oxycodone prescribed by Ms. Freier, and this, in turn, may have contributed to Brooks Davison's death.
{¶36} Importantly, upon questioning at trial, Dr. Wenthur acknowledged that his opinion in this case was based, in part, on published studies of living patients-not human corpses. Dr. Wenthur further acknowledged that post-mortem lividity could have an effect on his conclusions and the location where blood was drawn from Brooks' body also could affect his conclusions. Defendant's claim that scientific evidence conclusively disproves Plaintiff's theory of causation is not persuasive.
{¶37} Based on the credible testimony of Dawn Davison, immediately before Brooks' surgery in February 2016, Brooks took his sobriety seriously and Brooks had worked hard to maintain sobriety. Although it is theoretically possible that Brooks may have had a secret supply of oxycodone at the house, in the Court's view, such a scenario is very doubtful and, at best, is clearly speculative given Brooks' commitment to maintain his sobriety, as shown by having nothing but clean drug tests for six years before his operation. Moreover, the speculative nature of this claim is even more evident when one considers the relatively short time between Brooks' discharge and his death.
Objectively, for the six years immediately preceding his operation, Brooks Davison did not have a single positive test for opioids.
{¶38} Thus, notwithstanding any discrepancies in the number and type of pills that were found at the Davison home at the time of Brooks' death, the evidence shows that Defendant, through its medical providers, prescribed oxycodone, in large doses, which has been determined to have caused Brooks' death. Dawn Davison thus has offered sufficient evidence to establish that Defendant, through Ms. Freier with Dr. Thoman's approval, and the approval of the Anesthesiology Pain Management Service, provided Brooks Davison-a person in recovery with a susceptibility to misuse opioid medication- with the instrumentality that caused his death. See Gedra v. Dallmer Co., 153 Ohio St. 258, 91 N.E.2d 256 (1950), paragraph two of the syllabus (holding that "[i]n a negligence action, it is not sufficient for plaintiff to prove that the negligence of defendant might have caused an injury to plaintiff but, if the injury complained of might well have resulted from any one of several causes, it is incumbent upon plaintiff to produce evidence which will exclude the effectiveness of those causes for which defendant is not legally responsible"). Given Brooks' susceptibility to misuse opioid medications, the Court finds that Brooks' death was foreseeable and Defendant's actions, through its medical professionals, constituted the proximate cause of Brooks Davison's death. See Young v. Miller Bros. Excavating, Inc., 2d Dist. Montgomery Case Nos. 11306, 11307, 1989 Ohio App. LEXIS 2978, at *27 (July 26, 1989) ("[i]t is elemental that a showing of foreseeability is necessary to prove that a given instrumentality or lack thereof was the proximate cause of damages suffered by a claimant"). In short, while Defendant, through its employees, did manage Brooks' pain, it did not give due consideration to the consequences of ignoring what it means to be a person with an opioid addiction.
{¶39} As to the issue of damages, it is manifest that Defendant's medical professionals' negligence, which proximately caused Brooks Davison's death, resulted in damages. See R.C. 2125.02(A)(1) (surviving spouse, children, and parents of a decedent are rebuttably presumed to have suffered damages by reason of a wrongful death).
V. Conclusion
{¶40} The Court finds that Dawn Davison has proven her claims of medical negligence and wrongful death by a preponderance of the evidence for reasons set forth above. The Court holds that, under the doctrine of respondeat superior, Defendant is liable for the negligent acts of its medical professionals for the medical care that was provided to Brooks Davison. The Court further holds that Dawn Davison is entitled to a judgment in her favor on the issue of liability.
JUDGMENT ENTRY
IN THE COURT OF CLAIMS OF OHIO
{¶41} For reasons set forth in the Decision filed concurrently herewith, the Court holds that Plaintiff Dawn Davison is entitled to a judgment in her favor on the issue of liability in this cause. The Court directs the Clerk to issue an Original Scheduling Notice that sets this matter for a trial on the issue of damages.