Ohio Cases December 23, 2021: Albanese v. The Ohio State Univ. Wexner Med. Ctr.

Case Description

Sent to S.C. Reporter 2/24/2022

DECISION

PATRICK E. SHEERAN JUDGE

{¶1} This case is before the Court on the issue of whether Defendant Ohio State University Wexner Medical Center (OSUWMC) is liable in a medical negligence case brought by Plaintiffs Kelly S. Albanese and Kelly A. Albanese, the wife and daughter of decedent William A. Albanese (Albanese), respectively. For the reasons that follow, this Court finds that Defendant was negligent regarding the care given to Albanese. A damages hearing will be scheduled.

1. Introduction

{¶2} Mr. Albanese had a history of back problems that led to his having a successful decompression surgery on November 20, 2017. However, he began to experience back pain to the extent that he was admitted to OSUWMC in late December, 2017. Although he was not completely compliant regarding his physical therapy, he was able to walk with the use of a walker, and, when at home, was able to have some movement without the use of the walker. He could drive a car by himself at times, as well, and one goal of his therapy was to "wean" him off the use of the walker.

{¶3} One of the possible outcomes of decompression surgery, even when it is successful, is known as "adjacent segment disorder." Because of the pain that Albanese was undergoing, an MRI of the lumbar spine was ordered to evaluate his

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condition. Specifically, the concern was the L2-L3 segments, which were immediately adjacent to the location of his decompression surgery. The initial MRI was to take place on March 18, 2018, but it had to be rescheduled because Albanese could not lie flat on his back on the MRI table. The solution reached was to have the MRI done while Albanese was under general anesthesia so that his body could be positioned to lie flat. The MRI was scheduled for March 26, 2018, and then rescheduled for March 30, 2018.

{¶4} The evidence shows that on March 30, 2018, Mrs. Albanese drove Mr. Albanese to Doan Hall. Mr. Albanese used his walker to get to the MRI area while Mrs. Albanese parked the car. The anesthesiologist, Dr. Joseph Swan, M.D., was sufficiently concerned that moving Albanese while he was under general anesthesia into a position that caused Albanese discomfort while conscious could possibly cause bodily damage, that he chose to contact Dr. Kahn's staff (Dr. Kahn was out of the country at the time), to discuss the wisdom of performing an MRI on Albanese. Assured that the MRI was needed, Dr. Swan successfully administered anesthesia to Albanese, and the MRI was successfully completed by 5:25 p.m., referred to in the medical records as 1725.

{¶5} Following the MRI, Dr. Swan asked Albanese "How did we do?" and, on receiving a positive response, performed no physical evaluation of Albanese, despite Dr. Swan's previously stated concerns. Albanese was moved to PACU+, a recovery area, where he complained of back pain, and fentanyl was administered to him to ease that pain. Dr. Swan signed Albanese out at 1729, roughly 4 minutes after completion of the MRI. At the PACU+ recovery area, Albanese was sitting up in bed, but was not asked to get out of bed or stand up during his time there. Nurse William Jatsek administered an Aldrete test to Albanese, who scored a 9 out of a possible 10 points. It should be noted that in the OSUWMC guidelines, an "8" or above is considered a

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passing score. The significance of the Aldrete test will be discussed in detail later in this Decision.

{¶6} At 1755 hours, Albanese was moved to Phase 2 PACU, which is the final stop before actual discharge from the hospital. Megan Gilbert, R.N., was the nurse on duty who worked with Albanese. Because she knew that Albanese had had two previous Aldrete tests, and had passed each one, she did not administer another Aldrete test to Albanese. She removed the IV from Albanese at 1806 hours and told him that he was ready to go home. There was testimony from Albanese and his wife that Albanese told Nurse Gilbert that he could not move his legs. Nurse Gilbert had no specific memory of this statement, or, in fact, of Mr. Albanese himself (which is not surprising, given the number of patients she works with), but it is clear that she took no action other than to ask about the medications Albanese took while at home, and, according to the Albaneses, told him that his condition would improve once he took his medications.

{¶7} Albanese received his discharge instructions, and Nurse Gilbert asked for, and ultimately received, the assistance of another nurse, and along with Mrs. Albanese, the three of them were able to move Albanese into a wheelchair so he could be discharged. This assistance was needed again when it was time to move Albanese from the wheelchair to his car.

{¶8} When Albanese arrived at his home, Mrs. Albanese had her brother (Dan Smith) and his wife (Brenda Burger) provide help in getting Albanese from the car into the home, then into his recliner, where he would spend the entire weekend. His condition did not improve over the weekend, which, in 2018, was Easter weekend, and there was no way he could have known that the passage of time for someone in his condition was of critical importance.

{¶9} On Monday, April 2, 2018, Julia Rose, PA, noted the MyChart messages that Albanese had sent over the Easter weekend. She quickly contacted Dr. Kahn, and

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Albanese was instructed to come to the Emergency Room. Albanese, who still could not walk (he spent the weekend in his recliner), was again assisted by Smith, Burger, and Mrs. Albanese in getting to the ER. Dr. Kahn told family members that an immediate surgery was needed to decompress the spine. However, the surgery could not be performed until Wednesday, April 4, 2018, because Albanese had developed chest pains, which had to be addressed by a consult with cardiology. When the surgery was performed, Dr. Kahn found massive disc herniation, with compression on the cauda equina at L2-L3. While Dr. Kahn was able to successfully decompress the spine, the surgery was not able to undo the nerve damage that by then had occurred. It is uncontested that Albanese never recovered the use of his legs.

2. Discussion

{¶10} 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. Failure to establish any single element is fatal to a medical negligence claim. Fritch v. University of Toledo College of Medicine, 10th Dist. Franklin No. 11AP-103, 2011-Ohio-4518, at ¶ 6; Everhart v. Coshocton County Memorial Hospital, 10th Dist. Franklin No. 12AP-75, 2013-Ohio-2210, at ¶ 40 (internal citations omitted).

{¶11} The first question to be addressed, therefore, is what the standard of care is. Dr. John Schweiger testified that the standard of care in this type of case is to establish a baseline prior to anesthesia, followed by post-MRI assessments to make sure that a patient has returned to that baseline. In layman's terms, this essentially means that if a patient was able to walk in, s/he should be able to walk out. In that regard, this Court notes the similar testimony of Dr. Swan, Nurse Beerman, and PA Rose. The evidence is undisputed that Albanese, with the assistance of a walker, was able to-and did-walk into Doan Hall for his MRI. The evidence is also undisputed

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that at no time between the completion of the MRI and the time of his discharge, was a strength assessment of Albanese's legs ever done.

{¶12} After the MRI was completed on March 30, Dr. Swan asked Albanese "How did we do?" He received a "positive response." But to the Court, that question is ambiguous. Does it mean "How are you feeling?" or does it mean "Were you well taken care of during the procedure?" Given that the plural pronoun "we" is used, the latter interpretation is at least somewhat more likely than the former. In either event, however, it is a poor substitute for the failure to assess Albanese's leg strength.

{¶13} Defendant's reliance on the Aldrete test as a test of strength is unfounded, at least in terms of conforming with the standard of care relative to Albanese. Consider the Aldrete test itself: it has five categories: Activity, Respiration, Circulation, Consciousness, and Oxygen Saturation. A patient can score either 0, 1, or 2 points for each of the five elements. For "Activity", a score of 2 means that the patient was able to move the four extremities (arms and legs) voluntarily, or on command. Toe wiggling is sufficient to score a point for "Activity." And, as Exhibit 27 notes, a score of 8 (or better) is sufficient to have the patient discharged. (See Ex. 27. at p. 000005). In Albanese's case, he was given two Aldrete tests, 15 minutes apart; one at 1725 hours, the other at 1740 hours. In the earlier test, he scored a 9, with the lone 'non-2' score coming in Circulation. In the second test, he scored a 10. At least in theory, a score of "0" on the Activity portion would still be sufficient to cause a patient to be discharged, if that patient scored a "2" on the other 4 categories, none of which is relevant to leg strength.

{¶14} Defendant makes much of the testimony of Albanese (and his wife) where Albanese stated that he was unable to move his legs, when in fact he was able to move

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his legs. But this Court takes a less than strictly literal view of Albanese's statement. The key is not whether he could move his legs, but rather whether he could use them. What Albanese was saying in effect was "I cannot USE my legs." The evidence from the entire record is abundantly clear that he could not. And no one, from Dr. Swan to CRNA McKay to Nurse Jatsek to Nurse Gilbert ever tested Albanese to see if he met the baseline standard that has been previously discussed. And this Court finds no plausible explanation in the record as to why Dr. Swan failed to convey his pre-MRI concerns over Albanese's condition to the PACU staff.

{¶15} Even if Albanese never said a word about the use of his legs, or, if he did and Nurse Gilbert didn't hear him say it, it still was incumbent for someone on the medical team-be it Dr. Swan (the most likely candidate) or any of the other caregivers-to assess or order an assessment of whether Albanese could do in leaving what he could do on entering: USE his legs. Thus, the fatal flaw in Defendant's argument is that it relies on the premise that Albanese could move his legs, and that this ability excuses the failure to perform any kind of actual strength assessment. To this Court, it most assuredly does not: movement does not equal use, nor does it equal strength. And it was negligence, a clear departure from the standard of care, for no such assessment to have been made. In short, Albanese should NOT have been discharged from the MRI Center without that assessment. Since no assessment was made, Defendant bears the responsibility for the consequences of that failure.

{¶16} In addition to what happened (or did not happen) at the MRI Center, the evidence is clear that Albanese spent the weekend unable to use his legs in any

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meaningful way whatsoever. Defendant attempts to cast considerable doubt on the claim that Albanese-who weighed in the vicinity of 260 pounds-could be successfully moved from his car to his wheelchair to his recliner by two women and one much lighter (and 58-year-old) man. This Court listened to the testimony of the lay witnesses and finds that the explanations were both plausible and reasonable. That Defendant spends time arguing about inconsistencies as to whether Albanese was wearing a belt or not has little (if any) relevance to the procedures used by the lay witnesses in moving Albanese. The testimony involved the methodology of the movement from car to, ultimately, the recliner, and back again when it was time to take Albanese to the Emergency Room. Whether the witnesses could recall-especially when one considers the difficult task of moving Albanese-whether Albanese was wearing a belt or not is an incredibly minor detail, and is hardly enough to seriously question the truthfulness of the witnesses. This Court finds the explanations, and Mr. Smith's demonstration of what he did to assist, to be both credible and understandable.

{¶17} Defendant also spends a considerable amount of time in its closing statement arguing that it would be beyond the standard of care for Dr. Swan (or anyone else) to have ordered a post-MRI neurological examination. To an extent, this Court might otherwise agree, but finds the argument irrelevant. Certainly, a full-blown neurological examination (whatever that actually entails-Plaintiffs state that it would take 2 minutes; Defendant implies it would be considerably longer) might well exceed the standard of care under the conditions that the medical providers (here, unreasonably) believed to exist. But a full neurological examination is not the issue. NO strength test was ever given Albanese during his March 30, 2018 procedure, which makes Defendant's argument irrelevant. In other words, a neurological examination is not the point: a simple strength test is. As a result of this failure, the very real inability of Albanese to use his legs, which could and would have been discovered if he were simply asked to stand up on his own two feet and move, went undetected. Had his

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condition been detected, as it should have been, then a neurological consult would have been in order. The negligence in failing to do a simple strength test makes Defendant's argument entirely irrelevant.

{¶18} Based on all the foregoing, including a review of the testimony of the witnesses, the arguments of counsel, and the exhibits, this Court finds by a preponderance of the evidence that Mr. Albanese did suffer a neuromotor compromise before his discharge from Doan Hall. To the extent that any exacerbation of that condition was occasioned by the actions of the lay witnesses in moving Albanese from car to recliner (and back again), it is superseded by the negligence of Albanese's medical providers in discharging him in the first place, for in doing so, they placed Albanese in an understandable but undesirable (and regrettable) position where he had little choice but to receive assistance from his family to get into his home.

{¶19} The next issue before this Court is whether the negligence of Dr. Swan and the other medical providers constituted a proximate cause of the permanent injury suffered by Albanese.

{¶20} To answer that question, the Court must determine each of the parties' respective obligations given the facts in this case. The neurological changes (for the worse) that were occurring to Albanese following his discharge from the MRI Center were such that swift surgical intervention was necessary. The sooner that intervention happened, the better it would be for the patient. There is no disagreement by the parties on that point.

{¶21} Albanese was discharged by Defendant on Good Friday evening. His testimony, and the testimony of his wife, indicated that he was told, and reasonably believed, that his condition would improve once he got home and started taking his medications. This Court finds those statements to be credible. In addition, he was under the belief-substantiated by the record-that if there was anything drastic in his

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MRI, he would be notified by Defendant immediately, or at least quickly. He never received any communication from Defendant until Monday, April 2, when he was told to go to the ER.

{¶22} Defendant points out that Albanese ignored various warnings regarding the use of MyChart (which Albanese regularly utilized to send messages), and that Albanese failed to pursue other methods (calling the ER; dialing 911, etc.) that were available to him to help get him the care he required. And, to be sure, MyChart clearly indicates that it is NOT to be used in critical or crucial situations, a warning that appears whenever one opens up his/her individual MyChart page.

{¶23} It is also very likely that had Albanese (or his wife) called the appropriate number ((614)-293-2663), he would have been directed to come to the hospital, and he would have been treated.

{¶24} However, in assessing this failure, the Court is mindful of a number of factors that militated against Albanese or his wife making such a phone call. First, he had just been discharged from the hospital. Second, he was told that if he took his medications on arriving at home, his condition would improve. Third, he was told that if there was anything drastically wrong with his MRI, he would be notified by hospital personnel. Fourth, unlike the doctors, he was unaware of the "time equals tissue" maxim; that time was of the essence here, and that failure to act was going to have possibly uncurable consequences, which in this case, it did.

{¶25} The record is clear that, under all the circumstances, Albanese was not negligent in choosing to wait until Monday, given his understandable belief that his condition would improve as the weekend progressed. When his condition failed to improve, he sent messages making it clear that he did expect to be back in the hospital on Monday. Given his lack of knowledge regarding any medical imperative (the clock is

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ticking!), his failure to respond immediately to something that did not appear on his part to require immediate response is understandable, and, when all the evidence is considered, does not constitute contributory negligence on his part.

{¶26} The fact that the decompression surgery could not be performed until April 4, 2018, as opposed to April 2, 2018, is not relevant. The record shows the extreme decline in Albanese's neuro skills that presented on April 2 .

{¶27} Based on the foregoing, this Court finds that Plaintiffs have proven, by a preponderance of the evidence, that Defendant was negligent in its care of Mr. Albanese, and that said negligence was a proximate cause of the loss of leg movement by Mr. Albanese. On the issue of liability, this Court finds in favor of Plaintiffs, and against Defendant. A damages hearing will be scheduled after Counsel, who are expected to consult with each other, are in a position to provide the Court with at least three (3) mutually agreeable dates for the damages hearing. Counsel shall provide such possible dates to the Court's Staff Attorney (Joseph Hess) by January 21, 2022. He will review those proposed dates, and choose a date that fits all schedules, and, if no proposed date works, will submit a proposed Entry for a Status Conference with Counsel.

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JUDGMENT ENTRY

{¶28} 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 Plaintiffs. The trial on the issue of damages will be scheduled after input regarding dates has been received from the parties.

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Notes:

Albanese passed away after this case was filed, at which time Kelly S. Albanese was appointed as Executor of his Estate.

The Court will use military/hospital hours, as they are recorded in the medical records. Thus, 5:25 p.m. is 1725 hours.

See Joint Exhibit 1, at p. 000054.

See also: Exhibit 45, at p. 000004, where the lower extremity neuro (both R and L legs) was measured on April 2, 2018, and the right leg scored a 10/35, the left leg a 5/35. In terms of percentages, that scores out to 28.6% and 14.3% respectively. See also: Defendant's Closing Argument, at p. 20, lines 6-7, where it asserts that the Aldrete Score does NOT include strength and mobility testing.

This Court notes very approvingly of Dr. Swan's call to Dr. Kahn's staff about his concerns over the use of a general anesthetic for Albanese's MRI. He was not obligated to do that. But this makes the post-MRI lack of strength assessment all the more puzzling.

Thus, Defendant's reliance on Dan Smith's statements that Albanese's legs were "wobbly" are similarly unavailing. Albanese's legs were non-functional. Further, arguments concerning Albanese's daughter's statement that Albanese could be "overly dramatic" involving his health complaints are unavailing. Whatever his past statements were regarding other health problems, the record is clear that he had ample cause to complain here, since he was unable to use his legs at any time after the MRI.

The fact that other patients would not receive such assurances is not relevant here; Albanese DID receive that assurance.

Defendant's Closing Argument, at 26.

See footnote 3.

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