Tiffany Nicole Turner, a Minor, by and Through Her Parents and Best Friends, Todd E. and Sandra L. Turner, and Todd E. Turner and Sandra L. Turner v. Children's Hospital, Inc.
| Decision Date | 19 December 1991 |
| Docket Number | 91-LW-4956,91AP-71 |
| Parties | Tiffany Nicole Turner, a minor, by and through her parents and best friends, Todd E. and Sandra L. Turner, and Todd E. Turner and Sandra L. Turner, Plaintiffs-Appellants v. Children's Hospital, Inc. et al., Defendants-Appellees |
| Court | United States Court of Appeals (Ohio) |
APPEAL from the Franklin County Court of Common Pleas.
MILLER & DYE CO., L.P.A., and MR. DAVID A. DYE; MR. WILLIAM A GOLDMAN; and SCHULMAN, FALVEY & BURIC, and MR. ALLEN SCHULMAN, for appellants.
VORYS, SATER, SEYMOUR & PEASE, MR. ALAN T. RADNOR and MR. CARL D. SMALLWOOD, for appellees Children's Hospital, Inc., and Annemarie Sommer, M.D.
JACOBSON, MAYNARD, TUSCHMAN & KALUR CO., L.P.A., MR. DAVID C. CALDERHEAD and MR. PATRICK F. SMITH, for J. William Rupp, II, M.D.
This is an appeal from the Franklin County Court of Common Pleas which granted summary judgment to defendants in this medical malpractice action. Plaintiffs present the following assignment of error:
"The trial court erred in granting defendants' motions for summary judgment, in that material issues of fact did exist, and defendants were not entitled to judgment as a matter of law."
Pertussis, or whooping cough, is an infectious disease which is particularly dangerous to young children. Accordingly, physicians today routinely administer diptheria, pertussis, and tetanus (DPT) vaccine to children in the first several years of life. In Ohio, proof of DPT immunization pursuant to a schedule of inoculations established by public health authorities is required before a child can attend school. R.C. 3313.671(A). However, some scientific evidence and expert opinion holds that a small percentage of children, perhaps one in thousands or hundreds of thousands, may suffer severe adverse consequences from the pertussis component of the drug. Both the drug manufacturer's package insert warnings and leading treatises on pediatrics indicate that the drug is contraindicated in children with "evolving" seizure disorders. [1]
Tiffany Nicole Turner was born to Todd and Sandra Turner on September 28, 1978 after an uneventful pregnancy. At the time, Dr. J. William Rupp was the Turner's family physician. After examining Tiffany and finding her development normal, Dr. Rupp gave Tiffany her first routine DPT shot on November 7, 1978. Five days later, Mrs. Turner contacted Dr. Rupp about Tiffany. She told the doctor that Tiffany had experienced episodes of jerking activity earlier in the day. So, Dr. Rupp told Mrs. Turner to bring Tiffany to his office. That very evening he examined her and took a history from Mrs. Turner. She described two episodes of jerking activity which consisted of stiffening of the torso and rhythmical jerking of the baby's extremities. Dr. Rupp's diagnosis of exclusion was: "rule out seizure disorder, rule out meningitis." He instructed Mrs. Turner to take Tiffany to the emergency room of Children's Hospital immediately.
At Children's Hospital, which is a teaching facility, Tiffany was examined by several doctors. The initial or differential diagnosis prepared by a fourth-year medical student reads:
Since Dr. Rupp did not have staff privileges at Children's Hospital, Dr. Annemarie Sommer, a pediatrician specializing in genetics, served as the attending physician responsible for Tiffany's care. Dr. James M. Highley, an intern serving his residency, was responsible for the daily routine care of Tiffany. Dr. David S. Bachman, a board-certified pediatric neurologist, was called in for consultation on the seizure problem.
Throughout her fifteen-day hospitalization, Tiffany continued to exhibit some seizure activity, even though Dr. Bachman administered anticonvulsant Phenobarbital as a control measure. His initial diagnosis was that Tiffany had a seizure disorder of unknown etiology. This means that the doctor did not know the medical cause of the seizures.
Tiffany was discharged from Children's Hospital on November 28, 1978. "The discharge summary signed by Dr. Sommer indicated a diagnosis of "seizure disorder." There was no mention of DPT. Upon discharge, the parents were instructed to make follow-up visits with Drs. Bachman and Highley, which they did. At the time, Mrs. Turner reported that Tiffany was having about one seizure per day. Tiffany was kept on medication to control the seizures.
Tiffany was then brought to Dr. Rupp for a follow-up visit on January 1, 1979. Mrs. Turner reported that Tiffany's seizures had gotten worse, as she now experienced three short seizures a day. But Dr. Rupp did not conclude that the baby was abnormal. He continued her on the medications suggested by Dr. Bachman and instructed Mrs. Turner to return her to him in one month.
Sometime prior to February 1, 1979, however, Tiffany's parents decided to change physicians. Mrs. Turner wrote Dr. Rupp and informed him that they decided to have their long-time physician, Dr. Thomas E. Pappas, a family practitioner, take charge of the care of Tiffany. She requested that Dr. Rupp send Tiffany's medical records to Dr. Pappas and he did this.
On February 1, 1979, Dr. Pappas saw Tiffany at a time when she was four months of age. She was brought in with a fever and diarrhea. Dr. Pappas noted that Tiffany had a history of generalized seizures which began at six weeks of age. He also noted that she had previously been admitted to Children's Hospital, was worked up" by Dr. Bachman, and was cared for by Dr. Rupp. Dr. Pappas also charted that the baby's seizures had been under good control for about two weeks.
On February 16, 1979, Dr. Pappas saw Tiffany for a check-up. He noted that' Tiffany's seizures were now occurring only once a day. But otherwise, her condition was not remarkable. She was a happy, cheerful infant with good motor strength. He then administered Tiffany's second routine DPT shot along with a second Sabin polio vaccine. Five days later, Tiffany was taken to Dr. Bachman. He noted on his chart that while the child's seizures had been controlled until recently, she had "*** broke through a little bit ***." The doctor communicated this to Dr. Pappas by letter.
Tiffany received a third DPT shot from Dr. Pappas on May 2, 1979. Five days later, Mrs. Turner brought Tiffany back to Dr. Pappas because the child began running a temperature of between 102 and 104 degrees for four days after the shot. Further, the child developed a rash. Dr. Pappas thought the rash was consistent with roseola, a skin condition.
Tiffany received her final DPT shot on June 4, 1980. Mrs. Turner informed Dr. Pappas that Tiffany had been diagnosed as "physically retarded." He noted in his chart that the child appeared happy but had no awareness of him or her mother.
Tiffany's awareness has not improved since, as she is permanently brain damaged. Presently, she functions at the level of a four- or five-month-old child and is profoundly retarded. She currently experiences several grand mal seizures per week, jerking violently and screaming.
On March 8, 1988, Todd, Sandra, and Tiffany Turner filed suit against Children's Hospital; Dr. Bachman and his practice, Neurological Associates, Inc.; Dr. Pappas and his practice, Pappas and Freeman, Inc.; Dr. Rupp; Dr. Sommer; and Dr. Highley. In their complaint, plaintiffs alleged that the defendants committed medical malpractice in connection with the administration of the DPT vaccine to Tiffany in 1979. On June 20, 1990, the trial court granted summary judgment to defendants Dr. Rupp, Dr. Sommer, and Children's Hospital. Drs. Bachman and Pappas settled the case with plaintiffs and were dismissed with prejudice. Plaintiffs voluntarily dismissed Dr. Highley with prejudice.
In its decision, the trial court rejected the plaintiffs' theory that either Dr. Rupp or Dr. Sommer had a duty to warn Dr. Pappas that DPT was contraindicated in Tiffany's case. The court found it undisputed that Dr. Pappas was aware of Tiffany's seizure disorder, had a full history of the child's problems taken during hospitalization, was very experienced in administration of the vaccine, and was familiar with the DPT package insert providing that DPT is contraindicated in children with evolving seizure disorders. The court said that it was Dr. Pappas's "sole duty" to assess the risks of further inoculation, inform the parents of those risks, and decide whether the shot was contra-indicated. The court reasoned that if Dr. Pappas wanted to learn more about which possible causes had been excluded at Children's Hospital, it was his duty to contact the physicians involved. The court further reasoned that the law should not impose a duty to warn subsequent physicians of matters that they should know because such a duty would create an unreasonable burden on the medical profession. The court made an analogy to the products liability law "learned intermediary" doctrine which is predicated on the special role of the prescribing physician in administering drugs and in disseminating drug information. Lastly, the court concluded that in any event Dr. Pappas's decision to inoculate the child was an intervening cause.
In Ohio, medical malpractice is a tort arising from the contractual relationship between physician and patient. Absent some express promise, the physician is not an insurer of patient recovery or guarantor of results. Bowers v. Santee (1919), 99 Ohio St. 361. As part of the contract between the physician and patient, the law implies that the physician possesses the ordinary knowledge and skill...
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