Stewart v. Vivian, CA2015–05–039.

CourtUnited States Court of Appeals (Ohio)
Citation64 N.E.3d 606
Parties Dennis STEWART, Individually and as The Administrator of the Estate of Michelle Stewart, Deceased, Plaintiff–Appellant, v. Rodney E. VIVIAN, M.D., Defendant–Appellee.
Docket NumberNo. CA2015–05–039.,CA2015–05–039.
Decision Date09 May 2016

64 N.E.3d 606

Dennis STEWART, Individually and as The Administrator of the Estate of Michelle Stewart, Deceased, Plaintiff–Appellant,
Rodney E. VIVIAN, M.D., Defendant–Appellee.

No. CA2015–05–039.

Court of Appeals of Ohio, Twelfth District, Clermont County.

May 9, 2016.

64 N.E.3d 609

Stagnaro, Saba & Patterson Co., L.P.A., Peter A. Saba, Cincinnati, OH, for plaintiff-appellant.

Arnzen, Storm & Turner, P.S.C., Aaron A. VanderLaan, Covington, KY, for defendant-appellee.



{¶ 1} Plaintiff-appellant, Dennis Stewart, Individually and as the Administrator of the Estate of Michelle Stewart, Deceased (collectively, "Stewart"), appeals from a judgment entered on a jury verdict in the Clermont County Court of Common Pleas in favor of defendant-appellee, Rodney E. Vivian, M.D., on Stewart's medical malpractice and wrongful death claims. Stewart also appeals the trial court's denial of his motion for judgment notwithstanding the verdict, or alternatively, motion for a new trial, arguing that Dr. Vivian should have been found liable for his negligence in assessing, treating, and caring for Stewart's wife, Michelle, while she was hospitalized at Mercy Clermont Hospital ("Mercy") on a 72–hour psychiatric hold. Michelle died at Mercy a few days after she was found hanging from the bathroom door of her hospital room. For the reasons set forth below, we affirm.


{¶ 2} On February 19, 2010, Michelle attempted suicide by overdosing on drugs. She was treated for the overdose at Mercy Mt. Orab Hospital ("Mt. Orab"). The treating physician at Mt. Orab determined Michelle should be placed on a 72–hour psychiatric hold as Michelle was upset she had survived her suicide attempt and she indicated a continued desire to kill herself. Because Mt. Orab does not have a psychiatric unit, Michelle was transferred to Mercy.

{¶ 3} Michelle was admitted to Mercy just after midnight on February 20, 2010. Although Dr. Vivian was the admitting and treating physician, he was not present at the hospital when Michelle arrived. Leslie Wiggs, a registered nurse, performed the initial assessment on Michelle, which included interviewing Michelle and filling out a "Comprehensive Clinical Assessment and Evaluation Tool" and "Lethality Assessment" form. Wiggs found Michelle cooperative with the assessment, observing that Michelle was only "mildly agitated" upon her arrival at Mercy. While conducting the assessment, Wiggs noted Michelle admitted to being suicidal since age nine, felt like a burden on her family, and had "lots of plans." In notes made about her interaction with Michelle, Wiggs documented that Michelle "continue[d] to state she [was] suicidal," was upset she was found breathing, and had been researching suicide for 25 years. However, Wiggs recalled Michelle stating she would never hang herself because she did not want to "piss and shit" herself.

{¶ 4} The Lethality Assessment form Wiggs completed showed Michelle met

64 N.E.3d 610

more than four risk factors indicating a high level of lethality. According to this form, "[a]ny patient meeting High Lethality should be assigned a ‘Safety Proofed Room.’ " Wiggs explained, however, that this specific form was not supposed to be used at Mercy and Mercy did not have the referenced "Safety Proofed Rooms." According to Wiggs, the form just "showed up in the admissions packet one day."1

{¶ 5} Following her assessment of Michelle, Wiggs spoke with Dr. Vivian via telephone to discuss Michelle's condition. During this conversation, Dr. Vivian ordered that Michelle be placed on "15–minute checks," a level of observation that required a hospital staff member to visually check on Michelle every 15 minutes. According to Wiggs, 15–minute checks were regularly implemented in the psychiatric unit, although there were other types of observation Michelle could have been placed under, including arm's-length observation, one-to-one observation, and constant observation.2 As a psychiatric nurse, Wiggs had the ability to go to the treating physician and ask that the level of observation for a patient be increased if she felt the patient posed a danger to the patient's self or to others. Wiggs never requested Michelle's level of observation be elevated from 15–minute checks as Michelle had never indicated an intent to harm herself while at Mercy.

{¶ 6} After being placed on 15–minute checks, Michelle interacted and was observed by a number of Mercy's staff. Richard Todd Tudor, a registered nurse on the day shift, spoke with Michelle multiple times throughout the day on February 20, 2010. Tudor indicated Michelle was unhappy about being admitted to Mercy and was seeking a transfer to another facility. Tudor noticed Michelle became irritable and agitated as the day wore on, and he made verbal attempts to deescalate her irritability. Tudor did not, however, administer medication to calm Michelle as he had concerns about the additional drugs "cloud[ing] her mentation following [her] medication overdose." Tudor discussed Michelle's irritability with Dr. Vivian, who determined Michelle should not be prescribed medication for her irritability and agitation.

{¶ 7} Based on his interactions with Michelle, Tudor determined Michelle was passively, rather than actively, suicidal.3 Michelle had not made any direct suicide statements to Tudor nor had he been approached by another nurse or staff member regarding any concerns about Michelle's conduct or behavior. Tudor believed the 15–minute checks were an appropriate level of observation for Michelle, and he did not request that Dr. Vivian increase Michelle's level of observation.

{¶ 8} Jamie Christian, a mental health technician at Mercy, also performed 15–minute checks on Michelle. During Christian's interactions with Michelle, Michelle

64 N.E.3d 611

never made any statements that she intended to harm herself. Christian did observe that Michelle had become very upset and agitated after receiving a visit from her mother and sister. According to Christian, Michelle began yelling, cursing, and saying she wanted to leave Mercy. In addition to noticing Michelle's increased agitation, Christian caught Michelle standing on her bed on a couple of occasions. When asked what she was doing, Michelle told Christian she was just anxious because she wanted to leave Mercy and she was not allowed to smoke. Christian reported this behavior to Debbie Drennan, a nurse in the psychiatric unit, but neither Christian nor Drennan reported Michelle's unusual behavior to Dr. Vivian.

{¶ 9} Christian did, however, communicate Michelle's agitation and her desire to be transferred to another facility to Dr. Vivian. According to Christian, Dr. Vivian stated he "was aware of that" and that "she [Michelle] scared him and to keep a very good eye on her."

{¶ 10} Dr. Vivian and Jeanne Toebbe, a clinical psychiatric social worker, both met with and assessed Michelle on February 20, 2010. Dr. Vivian met with Michelle in the early afternoon. Dr. Vivian's interview with Michelle was limited as Michelle refused to cooperate or talk with him. Michelle would not respond to Dr. Vivian's questions, choosing to look away from him or put her head down on a table. When Michelle did talk to Dr. Vivian, she spent the majority of her time discussing how angry she was with her husband. Based on Michelle's refusal to cooperate during the interview, Dr. Vivian was unable to develop a firm idea as to whether Michelle's attempted overdose was a true suicide attempt or merely a cry for help. Dr. Vivian did observe, however, that even though Michelle was sad, preoccupied, and irritable during this assessment, she was alert and oriented to her surroundings.

{¶ 11} As part of his assessment, Dr. Vivian reviewed Michelle's medical records, including Mt. Orab's emergency room report, the admission forms completed by Wiggs, and records pertaining to Michelle's prior 2006 admission to Mercy's psychiatric unit.4 The report from Mt. Orab stated Michelle expressed suicidal ideation, had definite suicidal thoughts, and had a plan. Wiggs' comments on the admission forms also informed Dr. Vivian of Michelle's history of suicidal thoughts. Considering the information contained in these forms, as well as information he gleaned from various Mercy staff members who had observed Michelle's conduct and behavior since her admission to the hospital, Dr. Vivian concluded that 15–minute checks were the appropriate level of observation. He therefore ordered that the checks be continued.

{¶ 12} Dr. Vivian made a written record of his assessment of Michelle, in which he noted that Michelle was a "poor disorganized historian" who had "mood problems for many years" before deciding to "just g[i]ve up." Dr. Vivian found Michelle had "grossly impaired judgment and insight," and he acknowledged that Michelle had continued to state that she "want[s] to be dead."

{¶ 13} Following Dr. Vivian's assessment, Michelle met Toebbe, the hospital's psychiatric social worker. Michelle discussed a variety of issues with Toebbe, including difficulties from her childhood, her daily use of alcohol and marijuana, her interest in seeking treatment for her

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mental health problems,...

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