Whitmer v. Zochowski

• Decision Date: 30 June 2016
• Docket Number: 15AP–60.,Nos. 15AP–52,15AP–65,s. 15AP–52
• Citation: 2016 Ohio 4764,69 N.E.3d 17
• Parties: Carl WHITMER, Individually and as Administrator for the Estate of Carl A. Whitmer, Deceased, Plaintiff–Appellee, v. Adam ZOCHOWSKI, M.D. et al., Defendants–Appellants. Carl Whitmer, Individually and as Administrator for the Estate of Carl A. Whitmer, Deceased, Plaintiff–Appellee, v. Jeffrey H. Donaldson, M.D. et al., Defendants–Appellees, (Mount Carmel Health Systems, Defendant–Appellant).
• Court: Ohio Court of Appeals

69 N.E.3d 17

2016 Ohio 4764

Carl WHITMER, Individually and as Administrator for the Estate of Carl A. Whitmer, Deceased, Plaintiff–Appellee,

v.Adam ZOCHOWSKI, M.D. et al., Defendants–Appellants.

Carl Whitmer, Individually and as Administrator for the Estate of Carl A. Whitmer, Deceased, Plaintiff–Appellee,

v.Jeffrey H. Donaldson, M.D. et al., Defendants–Appellees,

(Mount Carmel Health Systems, Defendant–Appellant).

Nos. 15AP–52

15AP–65

15AP–60.

Court of Appeals of Ohio, Tenth District, Franklin County.

June 30, 2016.

On brief: Colley Shroyer & Abraham Co., LPA, and David I. Shroyer, Columbus, for plaintiff-appellee Carl Whitmer, Individually and as Administrator of the Estate of Carl A. Whitmer, Deceased. Argued: David I. Shroyer.

On brief: Hanna, Campbell & Powell, LLP, Akron, Douglas G. Leak ; Hammond, Sewards & Williams, and Frederick A. Sewards, Columbus, for defendants-appellants Adam M. Zochowski, M.D., and Central Ohio Surgical Associates, Inc. Argued: Douglas G. Leak.

On brief: Reminger Co., LPA, Warren M. Enders, Columbus, and Tyler Tarney, for defendant-appellant Mount Carmel Health Systems. Argued: Warren M. Enders.

KLATT, J.

{¶ 1} Defendants-appellants, Adam M. Zochowski, Central Ohio Surgical Associates, Inc., and Mount Carmel Health Systems ("Mount Carmel"), appeal a judgment of the Franklin County Court of Common Pleas in favor of plaintiff-appellee, Carl Whitmer.¹ For the following reasons, we affirm that judgment.

{¶ 2} In the early morning of May 8, 2010, Carl A. Whitmer crashed his automobile. First responders transported Whitmer to the emergency department of Mount Carmel West. Upon his admission, Whitmer was diagnosed with facial fractures, a left clavicle fracture, and traumatic brain injury. The traumatic brain injury that Whitmer sustained included a frontal lobe contusion, a left occipital lobe contusion, a small subarachnoid hemorrhage, and a subdural hematoma.

{¶ 3} A subdural hematoma forms when blood vessels on the surface of the brain tear, causing blood to collect between the brain and the dura, which is a membrane surrounding the brain. Whitmer's subdural hematoma, which was on his left side, exerted a mass effect on his brain: it pushed his brain to the right. Physicians measure the extent of that displacement by determining the midline shift, i.e., the distance the subdural hematoma pushes the middle structures of the brain away from the brain's center line. Whitmer's CT scans from immediately after the accident showed a midline shift of eight millimeters.

{¶ 4} Dr. Mark Fleming, a neurosurgeon, examined Whitmer and reviewed Whitmer's initial CT scan results. During his examination, Fleming observed no focal signs, which are indicators of neurological deficits. Focal signs include weakness or paralysis, particularly on the side of the body controlled by the side of the brain injured ; garbled speech; and the inability to understand speech. Fleming determined that Whitmer's subdural hematoma was not significant enough in volume or effect to justify surgical removal.

{¶ 5} After initial treatment in the emergency department, Whitmer was transferred to the neurological intensive care unit ("ICU"), where he was intubated and sedated. Whitmer remained in a coma for the next few days.

{¶ 6} On May 9, Whitmer underwent another CT scan. That CT scan showed a decrease in the midline shift from eight millimeters to five millimeters. The next CT scan, taken May 12, showed no significant change from the May 9 CT scan.

{¶ 7} Also on May 9, Dr. Jeffrey Donaldson, a plastic surgeon, examined Whitmer. Based on his examination and Whitmer's CT scans, Donaldson determined that a portion of Whitmer's eye socket was dislocated and Whitmer's upper maxilla, which includes the upper teeth, was detached from the rest of his skull. Donaldson recommended that Whitmer receive surgery to correct these issues within 7 to 14 days.

{¶ 8} Whitmer began to exhibit signs of consciousness on May 12. Whitmer became more awake and aware as the next two days passed.

{¶ 9} On May 14, Fleming, the neurosurgeon who had evaluated Whitmer upon his admission to the hospital, reexamined Whitmer. Fleming concluded that Whitmer was making "steady progress," and he ordered that a new CT scan be performed in two weeks. (Pl.'s Ex. 1, May 14, 2010 Neurosurgery Progress Note.) Fleming also pronounced Whitmer ready to leave the ICU and begin rehabilitation.

{¶ 10} On May 15, Whitmer was transferred from the ICU to the neurological stepdown unit. While in the ICU, Whitmer had received the pain medication Dilaudid intravenously. However, in the stepdown unit, Whitmer began receiving pain medication orally. The trauma surgeon assigned to Whitmer ordered the administration of one to two tablets of 5–325 milligram Percocet every four hours, as needed.² The trauma surgeon also allowed the administration of one tablet of 625 milligrams of acetaminophen every four hours, as needed. Whitmer did not request any pain medication on May 16, 17, or 18.

{¶ 11} On May 17, Dr. Adam Zochowski, a trauma surgeon, replaced the previous trauma surgeon assigned to Whitmer. When a patient has multiple serious injuries, such as Whitmer, the trauma surgeon assigned to the patient oversees and coordinates the treatment of the patient. The trauma surgeon calls on specialists to consult regarding the patient's injuries and determines when the patient will undergo necessary treatment. Moreover, the trauma surgeon examines the patient each day during rounds. The trauma surgeon leads the trauma service, which, in this case, included two residents.

{¶ 12} By May 17, Whitmer's condition was stable, and he was cleared for surgery to fix his facial fractures. Whitmer agreed to the surgery, which was scheduled for May 19. However, on the morning of the surgery, Whitmer refused to go forward. Whitmer's father tried to talk him into having the surgery, but Whitmer was too scared.

{¶ 13} Also on May 19, after three days of refusing pain medication, Whitmer began requesting that medication. At 1:29 a.m., Whitmer described his pain as a nine out of ten and said he hurt "all over."³ (Mount Carmel Ex. 3, Medication Administration Record for May 19, 2010.) A nurse gave him one Percocet tablet. At 10:01 a.m., Whitmer complained of ten-out-of-ten pain "all over." Id. In response, a nurse gave Whitmer two Percocet tablets. Then, at 5:51 p.m., Whitmer complained of eight-out-of-ten pain in his face, and a nurse gave him two Percocet tablets. By the end of the day, Whitmer had taken five tablets of Percocet.

{¶ 14} On May 20, Whitmer again complained of pain and sought pain medication. At 9:19 a.m., Whitmer complained of five-out-of-ten pain "all over." (Mount Carmel Ex. 4, Medication Administration Record for May 20, 2010.) At 2:57 p.m., Whitmer complained of a ten-out-of-ten headache and pain "all over." Id. At 10:15 p.m., Whitmer complained of a ten-out-of-ten headache. Each time Whitmer complained of pain, a nurse gave him two Percocet tablets, so by the end of the day, Whitmer had taken six tablets of Percocet.

{¶ 15} On May 21, the number of Whitmer's pain complaints increased, and the pain medication appeared to have less effect. At 6:30 a.m., Whitmer complained of an eight-out-of-ten headache. A nurse gave him one tablet of acetaminophen. At 9:40 a.m., he complained of ten-out-of-ten pain "everywhere." (Mount Carmel Ex. 5, Medication Administration Record for May 21, 2010.) This time, Whitmer received two Percocet tablets, but he continued to complain of ten-out-of-ten pain when a nurse checked on him at 10:40 a.m. At 2:35 p.m., Whitmer complained of a seven-out-of-ten headache. The nurse gave Whitmer a tablet of acetaminophen, but an hour later, at 3:35 p.m., Whitmer was suffering ten-out-of-ten pain. At 5:11 p.m., Whitmer was again complaining of a ten-out-of-ten headache. A nurse gave him two Percocet tablets. At 9:10 p.m., Whitmer was suffering from a six-out-of-ten headache. Again, he received two Percocet tablets. By the end of May 21, Whitmer had taken two tablets of acetaminophen and six tablets of Percocet.

{¶ 16} According to the family members and friends who visited Whitmer on May 19, 20, and 21, Whitmer was suffering from increasingly severe headaches over the course of those three days. On May 19, Whitmer told his sister, Melanie Hoover, that his head was bothering him. Hoover recalled that, the next day, Whitmer was more agitated about the headache, and he did not want the lights on or blinds open. On May 21, Whitmer said that his head felt "like it [was] going to explode" and he was in "the worst pain [he had] felt in [his] life." (Tr. Vol. IV at 208.)

{¶ 17} Whitmer's friend, Chad Lewis, visited Whitmer in the late afternoon of May 21. Lewis described Whitmer holding his head and rolling back and forth in bed. Whitmer repeatedly said "that his head was freaking killing him." (Tr. Vol. IV at 178.) Whitmer's father recollected that on May 21:

Carl was complaining of headaches. The lights were off, blinds were shut, his head was covered and he was complaining of severe headaches. He said at one time his freaking head was killing him, if he had a gun he would blow his head off. * * * [I]f you were in there, you had to keep it at a whisper. The TV wasn't allowed to have the sound on. * * * [H]e was just very agitated if he got noise or people talking loud.

* * *

His blankets were basically pulled up over his head, and every once in a while he would say something or talk to you, but not too often, but other than to complain about his pain.

(Tr. Vol. VII at 230–31.)

{¶ 18} According to a note in Whitmer's medical record, Whitmer refused to participate in physical therapy on May 21. At noon, the physical therapist found Whitmer with his head covered by a blanket, his eyes barely open. At 4:00 p.m., Whitmer agreed to get up, but he then changed his mind.

{¶ 19} Meanwhile, Whitmer's parents convinced him that he needed plastic surgery before the broken bones in his face healed in the wrong...