,q^uprenie 1.1,1--ourt of 00to - ohio supreme court flemming v. nestor, 363 u.s. 603 ... state ex...
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In the
,q^uprenie 1.1,1--ourt of 00toCYNTHIA A. ADAE, et al.,
V.
Plaintiffs-Appellees,
UNIVERSITY OF CINCINNATI, et al.,
Defendants-Appellants.
Case No. 2013-0323
On Appeal from theFranklin CountyCourt of Appeals,Tenth Appellate District
Court of AppealsCase No. 12AP-406
MEl2:][T BRIEF OF DEFENDANT-APPELLANT UNIVERSITY OF CINCINNATI
KENNETH S. BLUMENTHAL* (0008908)*C:ouy2sel ofRecoYd
JONAT'HAN R. STC?UD'I' (0083839)Rourke & Blumenthal, LLP495 S. High StreetSuite 450Columbus, Ohio 43215614-220-9200614-220-7900 [email protected]
MICHAEL R. THOMAS (0011638)Kirby, Thomas,l3randenburg & D'Aznico LPA4 Sycamore Creek DriveSpringboro, Ohio 45066937-748-1004rwashburnoa cl oppertlaw. com
Counsel for Plai.ntiffs-AppelleesCynthia Adae, et al.
MICHAEL DEWI'^,TE(0009181)Attorney General of Ohio
ALEXANDRA T. SCIIIMMER* (0075732)Solicitor General
* C:`ouns•el of f RecordMICIIAEL.I. HENDERSHOT (0081842)Chief Deputy SolicitorSAMIJLL C. PETI;R.SON (0081432)Deputy SolicitorANNE BERRY STRAI`1, (00122-56)Principal Assistant Attorney General30 East Broad Street, 17th FloorColumbus, Ohio 43215614-466-8980614-466-5087 faxalexandra. schimmer(a;ohioattorneyl;eneral. gov
Counsel for Defendant-AppellantUniversity of Cincinnati
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TABLE OF CONTENTS
Page
TABLE OF CONTENTS ............................................. . ....... ....................................................
TABLE OF AU THORITIES .. ......... . . iii.... . . .................................................................................. iii
INTRODUCTION ...........................................................................................................................
STATEiV1ENT OF THE CASE AND FACTS ..............................................................................>.3
ARGUMENT ............................................................................ . ................ ... ......................5
Appellant's Proposition of Law:
An ativard for injury to person ot- prapea•ty against a state college or university must
he reduced by the value of'any settlerTaent hetiveen plaintiffs and any other persnn for
the sarne injuries that resulted in the ai-vczrd against the college or university. ..... ............5
A. The plain language of R.C. 3345.40(B)(2) demonstrates that settlement proceeds are"benefits" to plaintiffs, which must be deducted from judgments awarded againststate colleges and universities........................................ ...................................................... 5
B. The text and strLXcture of the reznainder of R.C. 3345.40 show that the GeneralAssembly intended for (B)(2) to be broadly interpreted in favor of state colleges anduniversities . ... ........................ .................... ......... ......... ......... .........,.................................8
C. To remain consistent uith other provisions of the Revised Code, settlement proceedsmust be treated as "benefits" for purposes of R.C. 3345.40(B)(2) . .............. ......... .......:..10
D. The Tenth District's narrow interpretation of the terna "benefits" creates incentivesthat the General Assembly could not have intended ............................................... ..........13
E. Vogel v. Wells does not control the outcome of this case and does not present anobstacle to reversing the decision below. .. ................... ...................................................14
CONCLUSION... . ........................................................................................... . ......... . .................... 16
CERTIFICATE OF SERVICE ................... ......... .......................................................unnumbered
APPENDIX:
Notice of Appeal, Feb. 22, 2013 ..................... .......................... Exhibit A
Decision; 1Oth Appellate District Court of Appeals, Jan. 8, 2013 ......................... Exhibit B
Judgznent Entzy, 10th Appellate District Court of Appeals, Jan. 10, 2013............ Exhibit C
i
Deeisiozi and Entry (damages), Court of Claims of Ohio, April 6, 2012 ..............Exhihit D
Decision and Entry (liability), Court of Claims of Ohio.. June 1, 2011 ................. Exhibit E
R. C. 3345.40 ...........................................................................................................Exhibit F
ii
TABLE OF AUTHORITIES
CASES
Adae v. Stczte,135 Ohio St. 3d 1447, 2013-Ohio-2062 ......... ......... ......... ....,....:..........
PAGE(S)
..........................4
AdcznzsExpress Co. v. Beckwith,100 Ohio St. 348 (1919) ..................................................... .... ........... . ..........................9
Aubry v. bTniv. of Toledn Med.CIY.,2012-Ohio-1313 (10th Dist.)...... ..................... .......................................................................... 4
Flemming v. Nestor,363 U.S. 603 (1960) ......... ......... ..,................ ...................>.....................................................7
Hodge v. Middletown Hosp. Ass 'n,62 Ohio St. 3d 236 (1991) ....................>...................... .................., ...................................10, 11
lt,jenefee v. Queen City iVetro.49 Ohio St.3d 27 (1990) .....................................................................,.................................;.5, 9
Morris v. Savoy,61 Ohio St. 3d 684 (1991)................. ...........................11
Rosette v. C'ountrywide Home Loans, Inc.,105 Ohio St. 3d 296, 2005-Ohio-1736..................................................................................... 12
Seifert v. Burroughs,38 Ohio St. 3d 108 ( 1988) ........................................................................ ....... .. ................1, 13
Sharp v. Union Carbide Corp.,38 Ohio St. 3d 69 ( 1988)............................................................................................... . ............ 6
Sora•ell v. Thevenir,69 Ohio St.3d 415 (1994) .. ......... ................... .......................................................................11
State ex r•el. Carna v. Teays Valley Local Sch. Dist. Bd. of E, duc.,131 Ohio St. 3 d 478, 2012-Ohio-1484 ................................. .....................................................7
State ex r°el. Merydith Const. Co. v. Dean,95 Ohio St. 108 (1916) .....................................................................................,.....................,.10
State ex Yel. Myers v. Board of Education,95 Ohio St. 367 (1917). ...... ......... ...........;.................................................................................7
Stale v. Wilson,77 Ohio St. 3d 334 (1997) .......................................... ..,...... ......... ...:....................................10
iii
Vogel v. Wells,57 Ohio St. 3d 91 (1991) ............ ......... ......... ......... ......... ............................................ passim
Wesi^ield Ins. Co. v. Galatis,100 Ohio St. 3d 216, 2003-Ohio-5849 ......................................................................... ,..........16
Whitacre v. Bd nf 'duc.,42 Ohio App. 2d 19 (2d Dist. 1974) ........................................................................... ............. )
Wilson v. Kasich,134 Ohio St. 3d 221, 2012-Ohio-5367....................................................................................... 6
}'oe v. Oh. Dept. ofAgNic.,2010-Ohio-2178 (C;t. Cl.) .................................................... ....10
STATUTES, RULES, AND CONSTITUTIONAL PROVISIONS
136 Ohio Laws, pt. II (1975) .........................................................................................................11
R.C. 2305.27 ......... .. . .... .. . ........... ..................................................................... . .... ..11.
R.C. 2307.27 .................................................................................................. ;................... ..........11
R.C. 2307.28(A). . .......... .. . ............................................................................................12
R. C. 2317.45 . ..... .... ... ................. .... ....... ..... .. ............ ....... . . . ......... ............ . ... ..... ....... ............ .11
R.C. 2743.02 ...... ............................. .....;... ........................................................................9, 10, 11
R. C. 2744.05 .......................................................................................................,....................14, 15
R.C. 3345.40 . ....... ... ......... . .. ..... ......................................................................... passim
R.C. 3345.40(B) ............................................................. ................. ....... .. . ................12
R.C. 3345.40(B)(1) ....,.. ... ...... .............................. ...................................................................,.....8
R.C. 3345.40(B)(2) ..................................... ................................................ ............ ...... pczssian
R.C. 3345.40(B)(3) ................. ......... ......... .................... ....,................................................,....,.,.9
OTHER AIIT tIURi`I'TEs
American I-ieritage Dictionary (5th ed. 2011) ..........................................................................6, 15
Black's Law Dictionary .......................................................................................................6, 14; 15
Oxford English Dictionary ...... ......... ......... ......... ......,............ .........,...,.......................................6
av
INTRODUCTION
"The law of Ohio is well-settled that an injured party is entitled to only one satisfaction
for his injuries. . . ." &if^rt v. Bw°Noughs, 38 Ohio St. 3d 108, 110 (1988). The judgment below,
however, allows more than one satisfaction. It awards to Cynthia and S-loward Adae $2 million
above what the Court of Claians determined would fullv compensate them. The extra $2 million
results from the Tenth District's judgment that a $2 million settlement with other defendants
cannot be credited against the $3.3 million judgment against the University of Cinciztnati despite
the conimon-1aw one-satisfaetion rule and a statute that tracks the rule (R.C. 3345.40(B)(2)).
The Tenth District misread a stattite that bolsters the common-law single-satisfaction rule
when that rule is applied in favor of the State's colleges and uz7iversities. The statute requires a,
set-off against a tort judgment for "any" "benefit" a plaintiff receives. An identical statute--
implicated by the lower court's reasoning, but not its holding---recluires set-offs for judg-ments
against municipalities.
The consequence of the Tenth District's error means millions more in liability for the
State's colleges, universities, and municipalities. And not one of those extra dollars will
compensate a plaintiff for injuries as determined by a court or jury. Every dollar paid by the
colleges, tiniversities, and municipalities will duplicate awards that fully compensate plaintiffs.
This sort of double recovery is exactly why the General Assembly passed special statutes
preserVing the single-satisfaction rule and even strengthening it when state colleges, universities,
and municipalities are involved.
4'he Tenth District lost its way and construed "benefits" in a way that is incompatible
with the plain language of the statute. I3enefits include money received to settle a legal claim.
That conclusion is compelled by the ordinary meaning of the term "benefits." And, more
broadly, it is compelled by the language of R.C. 3345.40 as a wllole.
The T'enth District also went astray by interpreting the statute in a way that undermines
its purpose. The statute protects colleges and universities against double recoveries by reducing
a tort judgment by the amount of "benefits" that a plaintiff receives from "aray ... source."
Despite this expansive language, the Tenth District used a cramped view of benefits. That
narrow view creates an anomaly by exposing state colleges, universities, and municipalities to
more risk of double recoveries than. other state entities. More anomalous, the decision exposes
state colleges, universities, and municipalities to more risk of a double recovery than private tort
defendants. And perhaps most anomalous, the decision exposes state colleges, tmiversities, and
municipalities to more risk of a double recovery than under common law----if the Tenth. District
is right, such entities would have been better off if the General Assembly had done nothing at all.
The Tenth District also misjudged statutory intent because it overlooked the General
Assembly's careful history of defining benefits narrowly when it intended a narrow meaning. In
statutes dating back decades, the General Assembly has subdivided "benefits" into those that are
and are not deductible from tort awards. But there is no parsing R.C. 3345.40. The statute
instead commands setoff of all benefits from "any" source. The General Assembly swept
broadly when it defined benefits in R.C. 3345.40(B)(2)
Finally, the Tenth District read too much into this Court's decision in Vogel v. Wells, 57
Ohio St. 3d 91(1 991). Vogel did not mandate the T'enth DistTict's holding. Vogel addressed
only the question before the Court: Are gifts "benefits"? The answer was a simple and intuitive
"no." Unlike gifts, settlement proceeds are benefits. Vogel did not foreclose the com.monsense
conclusion that"benefits"include money received from a settlement. But if Vogel means what
the Tenth District said, then it must be overruled.
2
STATEMENT OF THE CASE AND FA.CTS
In the summer of 2006, Cynthia Adae noticed symptoms that she attributed to possible
heat stroke. Adas v. Univ. of Cincinnati, 2011-Ohio-3146; ¶3 (Ct. of Cl.) ("Trial Op. I").
Ms. Adae went first to the Clinton Memorial Hospital After FIours Care Clinic before eventually
going to the emergency room at Clinton Memorial Hospital. Id. ¶¶4-5. After being seen by an
emergency room doctor, Ms. Adae was admitted to the hospital where she was examined by a
family practice resident who was an employee of Clinton Memorial. Id. ¶6. Later that morning,
the resident's supervisor (a University of Cincinnati faculty member) also examined Ms. Adae.
Id. ¶8. The supervisor ordered additional testing before discharging Ms. Adae with instructions
to follow up with her primary-care doctor. Id. ¶9.
Ms. Adae continiaed to experience pain. Id. ¶10. Three days after being discharged from
Clinton Memorial, she went to the emergency room at Middletown Regional Hospital. Id. ¶10.
She again underwent a series of tests and was eventually discharged with prescriptions intended
to treat a sinus infection and address her ongoing pain. Id. ¶11.
Ms. Adae's condition continued to deteriorate. Several days after her most recent
discharge from the hospital, she returned to the emergency room at Middletown Regional
Hospital. Id. ¶15. I3y then, she was experiencing flu-like symptonis, iitambness and weakness in
her extremities, and slurred speech. Id. ¶14. The doctors eventually discovered an epidural
abscess that, even after treatment, left Ms. Adae with continuing physical disabilities. Id. ¶16.
Together with her husband Howard, Ms. Adae sued most of the individuals and entities
whotreated or examined her in 2006: they filed a suit in common pleas court against the non-
state defendants and a suit in the Court of Claims against the state defendants. Adae v. Slate,
2013-Ohio-23, ¶ 10 (10th Dist.) ("App. Op."). In the common pleas court, the Adaes settled
3
with Clinton Memorial Hospital prior to trial for $2 million and the other defendants were
dismissed. Id. That left only an action. in the Court of Claims, and only the University of
Cincinnati as a defendant. Id. Tj 11.
The trial in the Court of Claims was bifurcated into two segments: one addressing
liability and the other addressing damages. Id. The University of Cincinnati was found liable
and the Court of Claims awarded Ms. Adae and her husband $3,311,761.84 to compensate for
Ms. Adae's injuries. Icl. ^,,112. Of that total award, $284,000 was provided as compeztsation for
lost income, $75,000 was provided for purposes of modifying the Adaes' house, $2.4 million
was provided to pay for Ms. Adae's life-care plan, and $500,000 was awarded as coznpensation.
for pain and suffering. Adae v. .S`tate, 2012-Ohio-3855, ¶J;24-26 (Ct, of Claims) ("Trial Op. II").
The Adaes had originally agreed that any award in the Court of Claims would be set off
by the $2 million they received from Clinton Memorial. Id fi27; see also Pl's Closing Arg. Br.,
at 7, No. 2007-08228 (Ct. Cl. Feb. 24, 2012) (stating that the amount that "is needed to provide a
reasonable quality of life for [Ms. Adae's] remaining years is $3,498,308.41 less the $2,000,000
this Court will set off, i.e. $1,498,308.41"). The Court of Claims refused a set-off, citing the
just-released Tenth District opinion in Aubryv. Univ. o,f"Toledo Aled. Ctr., 2012-Ohio-1313 (10th
Dist.). Id. The Tenth District affnned, citing Aubry and this Court's decision in 17ogel. App.
Op. ¶^, 19-30.
The University appealed and this Court accepted jurisdiction. Adcze v. State, 135 Ohio
St. 3d 1447, 2013-Ohio-2062.
4
ARGi.TMENT
Appellant's Proposition of Law:
An award for injury to person or property against a state college or university must bereduced by the value of any settlenzent between plaintiffs and any other person foy thescrnte injuries that resulted in the award agcrinst the college or univeysity.
The purpose of R.C. 3345.40 is to limit the kind and amount of damages that can be
awarded against a state college or university. Cf Menefee v. Queen City Metro, 49 Ohio St. 3d
27, 29 (1990) (purpose of identically worded R.C. 2744.05(B) is to "conserve the fiscal
resources" of the state's municipalities.). Eliminating double recoveries is essential to achieving
this purpose. But the Tenth District's decision bas the opposite effect-it exposes state colleges
and universities to greater risk of double recoveries than other state entities, greater risk of
double recoveries than private tort defendants, and greater risk of doubl.e recoveries than the
colleges, universities, and municipalities wotild face under common law. Such a result is
contrary to what the General Assembly intended, as seen in the language and structure of
R.C. 3345.40 and similar statutes. This Court's Vogel decision does not comniand a different
result.
A. The plaiag language of R.C. 3345.40(B)(2) demonstrates that settlement proceeds are"benefits" to plaintiffs, which must be deducted from judgments awarded againststate colleges and universities.
Any benefits that a plaintiff receives must be set off against a judgment awarded against a
state college or university. R.C. 3345.40(B)(2). In this respect, the language of R.C.
3345.40(B)(2) is unequivocal. The set-off requirement applies regardless of wllether the benefits
come froni insurance payments or from "any other source." Id. The only question then, is
whether settlemeirt proceeds are beixefits for the purpose of R.C. 3345.40(B)(2). They are.
The plain meaning of benefits includes settlement proceeds. The term "benefits" is not
defined in statute, but "[w]here a particularterin employed in a statut.e is not defined, it will be
5
accorded its plain, everyday meaning." Shaap v. Union Caa°bide C_'otl)'., 38 Ohio St. 3d 69, 70
(1988); see also Wilson v. Kasich, 134 Ohio St. 3d 221, 2012-Ohzo-5367 ^,(13 ("The [C]ourt's
paramount concern in statutory construction is the legislative intent in the statute's enactment,
and to discern this intent, we read words and phrases in context according to the rules of
grammar and common usage."). Under the plain, everyday meaning of the terni, settlement
proceeds-especially, as here, proceeds from a $2 million settlement-certainly gualifv as
"benefits" to a plaintiff. Any other interpretation of the statute would be contrary to the
commonly understood meaning of the word benefit.
One need look no ftirther than standard dictionaries to confirm that the term "benefits" is
broad and includes settlement proceeds. The first definition of "benefit" in The Aznerican
fleritage Dictionary is "[s]omething that promotes or enhances well-beiiig; an advantage" and
the second is "[h]elp; aid." Id. at 168 (5th ed. 2011). Settlement proceeds satisfy eitlzer of these
two definitions. A plaintiff who settles a claim rather than proceeding to trial certainly derives
an advantage from having favorably resolved that claim. And the proceeds from such a
settlement are certainly a help and aid to the settling party. Other dictionaries confirm this broad
understanding of "benefits." Black's Law Dictionary defines "benefit" as an "advantage;
privilege" as well as "profit or gain; esp., the consideration. that moves to the promisee." Id. at
128 (8th ed. 2005). Settlement proceeds exemplify the definition of "benefit" as found in
Black's; they are a prime example of consideration that moves to a promisee. In this case the
settlement proceeds were the consideration given in exchange for the Adaes' agreement to
dismiss their pending lawsuit against Clzriton Memorial. Finally, the Oxford English Dictionary
likewise sets forth a broad meaning for the word "benefit," defining it as "advantage, profit, [or]
6
good," including "pecuniary advantage" and describing that usage as "[t]he ordinary sense."'
This uniformly broad definition of benefit, which is consistent across a variety of sources,
undermines the Tenth District's conclusion that the term "benefits" in R.C. 3345.40(B)(2) should
be narrowly constTued.
The language of R.C. 3345.40(B)(2) itself further supports treating settlement proceeds as
"benefits" under the statute. The statute refers to benefits from "insurance or any other source."
R.C. 3345.40(B)(2) (emphasis added). Butthe Tenth District's decision wotild effectively
eliminate the broad "any other source" category and would effectively classify only insurance
payments as benefits under R.C. 3345.40(B)(2). That interpretation cannot be correct. S`tate ex
rel. Carna v. Teays Valley Local Sch. Dist. Bd. of 1_,,'cluc., 131 Ohio St. 3d 478, 2012-Ohio-1.484
Tlg (A court "must give effect to every word and clause in [a] statute."); see also State ex rel.
Myers v. Board of Education, 95 Ohio St. 367, 373 (1917) ("No part [of a statute] should be
treated as superfluous unless that is manifestly required, and the court should avoid that
construction which renders a provision meaningless or inoperative.") Reference to Social
Security or similar programs cannot save the Tenth District's overly narrow reading of the statute
because they still do not give meaning to the "any other source" clause. Such public progranis
would not qualify as "other source[s]" because they still qualify as insurance-they are merely
social insurance programs. See Fleinnzing v. Nestor°, 363 U.S. 603, 609 (1960) ("The Social
Security system may be accurately described as a form of social insurance.").
Other portions of R.C. 3345.40(B)(2) also indicate that settlement proceeds are benefits.
Specifically, the statute says that benefits include payments that a plaintiff "receives or is entitled
to reeeive." R.C. 3345.40(B)(2). It is the first half of that phrase, the "receives" portion, that
' C)EI) Online, December 2012, Oxford University Press. http://wvv-w.oed.com/view/Entiy/17694?result=l&rskey=XQ1HNa.& (accessed 7uly 22, 2013) (first non-archaicmeaning).
7
shows that settlement proceeds are benefits-and that the Tenth District's narrow construction of
the statute cannot be correct. A plaintiff is entitled to receive insurance payments. She is
entitled to receive Social Security payments. She is entitled to receive worlcers compensation or
disability payments. But a plaintiff merely receives a settlement payment. (In cases wlaere a
plaintiff is entitled to benefits, it is the erititlernent that matters. It does not matter whether a
plaintiff has actually received the benefits; if she is entitled to them, they must be counted as a
set-off under R.C. 3345.40(B)(2)). There is no entitlement to a settlement; it is something that
must be negotiated between a plaintiff and defendant with no guarantee that any agreement will
be reached or that any payment will ever be received. Settlement paymezits are in that sense the
most common form of benefits that a plaiiitiff can receive without entitlement.
That settlements are benefits is further confirmed by applying the Tenth District's logic
to judgments. Under the Tenth District's reading of R.C. 3345.40(B)(2), only those things
specifically discussed in Vogel qualify as benefits. But judgments, just like settlements, fall
outside of the narrow set of Vogel categories. Judgments are certainly benefits. They assign
fault to another defendant for the sanle injuries litigated in a suit against a college or university.
It would be truly anomalous to conclude that judgments against other defendants could not be
offset, but that is what the logical extension of the Tenth District's decision would require. That
catv.tot be correct, and the decision below must therefore be reversed.
B. The text and structure of the remainder of R.C. 3345.40 show that the GeneralAssembly intended for (B)(2) to be broadly interpreted in favor of state colleges anduniversities.
The requirement that all benefits, from any source, be used to set-off judgments against
state colleges and universities is one part of a broad statute that gives colleges and universities
more protection than other tort defendants. Other provisions of R.C. 3345.40 include a
prohibition of subrogation, R.C. 3345.40(B)(2), an absolute bar on punitive damages, R.C.
8
3345.40(B)(1), and a limitation of $250,000 on noneconomic damages. R.C. 3345.40(B)(3).
Taken together, these requirements show that the General Assembly intended R.C. 3345.40, to
provide expansive protection for state colleges and universities. C'f. Menefee, 49 Ohio St. 3d at
29. That expansive protection requires courts to broadly interpret the term "benefits" as used in
R.C. 3345.40(B)(2).
A narrow reading of benefits treats colleges and universities less favorably than other
state defendants despite the favored treatment schools receive in the rest of R.C. 3345.40. The
additional protections in R.C. 3345.40 distinguish it from R.C. 2743.02's more general
provisions applicable to other an-ns of the state. The general provision does not prohibit
subrogation, bar punitive damages, or limit noneconomic damages. S'ee R_C. 2743.02. Despite
those differences, the Tenth District's decision treats state colleges and universities less
favorably than other state defendants. Such an interpretation of R.C. 3345.40(13)(2) inverts the
General Assembly's intent and simply does not make sense.
Nor would it make sense to interpret R.C. 3345.40 as providing less protection for state
colleges and universities then they would get under common law. 13ut again, the Tenth District's
decision does just that. At common law, it was well-established that an "injured party may not
receive full satisfaction from more than one of the wrongdoers" and if "partial satisfaction may
have been made by other persons charged with the commission of the wrong or injury, then such
partial satisfa.ction will inure to the benefit of all parties responsible in law for the coinmission of
the wrong." Adarns: Express Co. v. Beckwith, 100 Ohio St. 348, 354, 356 (1919); accord,
Whitacre v. Bd. of Educ., 42 Ohio App. 2d 19, 24 (2d Dist. 1974) (award reduced based on
settlement). So not only does the Tenth District's decision leave state colleges and universities
in a worse position than other state entities, it leaves them in a worse position than if the General
9
Assembly had done nothing at all and simply left in place existing common law regarding
settlem.ents.
C. To remain consistent with other provisions of the Revised Code, settlement proceedsmust be treated as "benefits" for purposes of R.C. 3345.40(B)(2).
As discussed above, the overall purpose of R.C. 3345.40 is to protect state colleges and
universities from double recoveries and other threats to their fiscal stability. But the I'enth
District's interpretation of that statute has the odd result of providing less protection compared to
other state entities. Such a result is not what the General Assembly intended.
By construing the term "benefits" narrowly, the Tenth District undermined the General
Assembly's intent and placed R.C. 3345.40 in tension with other provisions of the Revised Code.
'T'he "I'enth District's interpretation chafes against the maxim that statues "must be presumed to
harmonize with existing statutes on kindred subjects not either expressly or impliedly repealed."
State ex rel. MerydithC'onst. Co. v. Dean, 95 Ohio St. 108, 115 (1916); see also State v. Wilson,
77 Ohio St. 3d 334, 336 (1997) (courts must exaniine a statute in context). The decision below
creates several statutory discordances.
First, as already noted, the Tenth District's decision treats colleges and universities worse
than other ar-ins of the state. Under the decision below, state colleges and universities have no
opportunity to set off judgments against them. But when other state entities are sued, R.C.
2743.02(D) requires that any damage award be reduced "by the aggregate of insurance proceeds,
disability award, or other collateral recovery." The term "other collateral recovery" includes
recovery other than insurance, see I-Iodge v. Middletown flosl). As.r'n, 62 Ohio St. 3d 236, 239
(1991) (interpreting forrn.erR.C. 2305.27), and the Court of Claims has consistently treated the
phrase as including settlement proceeds. See, e:g., Yoe v. Oli. Dept. ofA6oric., 2010-Ohio-2178,
^, 26 (Ct. Cl.) (reducing award of $1,023,459.60 to $0 because of prior settlement for $1,950,000).
10
Becatise R.C. 2743.02(D) ensures that the state generally gets the benefit of settlement set-offs,
the Tenth District's narrow interpretation of R.C. 3345.40(B)(2) ascribes to the General
Assembly an intent to treat state colleges and universities worse than other state entities. If the
Tenth District is correct, then the General Assembly decided to expose state colleges and
universities to a greater risk of large money judgments compared to all other state defendants.
That makes no sense. The "I'enth District's decision must therefore be reversed in order to
eliminate the tension between R.C. 2743.02(D) and R.C. 3345.40(B)(2).
Second, the Tenth District's decision clashes with past statutes that have defined benefits.
When the General Assembly wants a narrow interpretation of benefits it says so. It does not
simply use the broad term "benefits" and leave the scope of that term up to the varying
interpretations of different courts. That is, while R.C. 3345.40(B)(2) applies to all benefits, other
statutes specify to which benefits they apply. For example, the prior version of R.C. 2307.27
distinguished benefits where the "premium was paid" by the plaintiff from "other collateral
recovery," making only other collateral recovery deductible from an.y award. Cited in Ilodge v.
Middletown Ilosp. Ass'n, 62 Ohio St. 3d 236, 238 n.2. Similarly, former R.C. 2317.45
extensively defined "other collateral benefits" and set up a process for the court to deduct
specifically identified benefits from awards under certain circumstances. Cited in S`orrell v.
Thevenir, 69 Ohio St. 3d 415, 419 n.1 (1994). And former R.C. 2305.27 likewise distinguished
insurance that the plaintiff funded from "other collateral recovery" and made only the latter
deductible from darnage awards. 136 Ohio Laws, Part Tl, 2809, 2812 (1975) (cited in Mo7°Yis v.
Savoy, 61 Ohio St. 3d 684, 693 (1991). With these examples as backdrops, when drafting R.C.
3345.40(B)(2), if the General Assembly had wanted to limit "benefits" to proceeds from specific
11
sources-say insurance or Social Security---it knew how to do so. But it did not. It instead
defined benefits expansively to include money derived from "any other source."
The common thread running tlvrough all of these other statutory provisions is this: the
General Assembly knows how to make some benefits deductible for set-off purposes and some
not. When the General Assembly could have easily used different language to convey the
meaning the Tenth District attaches to benefits (but did not) this Court will not "presume
imprecision on the part of the General Assembly." Rosette v. Country,-^nide Horne Loans, Inc.,
105 Ohio St. 3d 206, 2005-Ohio-1736, ^14. All means all, and in R.C. 3345.40(B)(2) the
General Assembly declined to distinguish classes of benefits as it has in numerous other statutes.
The Tenth District erred by adding a nonexistent distinction. to that statute when it declared that
settlement benefits are not deducted tivhile insurance benefits are.
Third and finally, the Tenth District's decision creates tension with the general statute
govemung settlement set-offs (R.C. 2307.28(A)). [Jntil now, it has been unnecessary to
determine whether and how the statute for colleges and universities (R.C. 3345.40(B)(2))
interacts with the more general statute governing settlement set-offs (R.C. 2307.28(A))
(settlement "reduces the claim against" other tortfeasors). That is because, until now, R.C.
3345.40(B) was understood to require set-offs at least to the extent required by R..C. 2307.28(A).
The Tenth District's decision raises a variety of new questions. Chief among them is the
question of whether and how R.C. 2307.28(A) may apply to state colleges and universities. This
C:ourt need not address that question in the first instance. It simply needs to reverse the Tenth
District's narrow interpretation of the term "benefits," and allow any questions about the
relationship between R.C. 2307.28(A) and R.C. 3345.40(B)(2) to tmfold without the Tenth
District's overly restrictive in.teipretation of R.C. 3345.40(B)(2) obstructing the analysis.
12
D. The Tenth District's narrow interpretation of the term "benerits" creates incentivesthat the General Assembly could not have intended.
Not only does the Tenth District's interpretation of R.C. 3345.40 clash with the plain
meaning of the statute and conflict with other statutes, but it incentivizes behavior
counterproductive to the statute's aims: The judgment below encourages plaintiffs to pursue
double recoveries for their injuries and it discourages them from attempting to settle with state
colleges and universities. And it does so in such a way as to eliminate transparency, keeping the
details of settlements secret from the court.
The rule announced by the Tenth District means that a plaintiff can always recover from
a state college or university the full value of any judgment in that plaintift's favor. Thefact that
the plaintiff may have settled with all other defendants-and may have already recovered the full
value of the judgment-is irrelevant under the Tenth District's interpretation of R.C.
3345.40(B)(2).
As a result, the Tenth District's rule encourages plaintiffs to settle with as many other
defendants as possible before finally pursuing the state college or university for every dollar of a
judgment. In those circumstances, every dollar that plaintiffs obtained in settlement would be
additional recovery beyond the amount a court determined would make them whole. The Tenth
District's rtzle therefore guarantees that many plaintiffs will receive a double recovery for their
injuries. Such a result flies in the face of established Ohio law, see Seifert, 38 Ohio St. 3d at 110
("The law of Ohio is well-settled that an injured party is entitled to only one satisfaction for his
injuries ...."), and cannot be what the General Assembly intended.
The Tenth District's interpretation of R.C. 3345.40(B)(2) also distorts incentives for
settlements with state colleges and universities. If plaintiffs know that they can obtain the full
value of ajudgment from a state college or university, regardless of other settlements, then many
13
plaintiffs will pursue claims against colleges and universities to final judgment rather than settle.
Ald any settleinents with state colleges and universities will be priced inappropriately because
the plaintiff will start from a projected judgment value that excludes settlements with otlier
defendants.
In addition to incentivizing double recoveries, the Tenth District's decision also
eliminates transparency and allows those double recoveries to occur in secret. The benefits set-
off provision is only one half of R.C:3345.4Q(13)(2). The other half of that statute requires
plaintiffs to disclose to the court any benefits they receive, Id. But if settlement proceeds do not
constitute "benefits" for the purposes of set-off, then they do not constitute "benefits" for the
purposes of disclosure either. As a result of the Tenth District's decision, plaintiffs will be able
to conceal from the court, and from a defendant state college or university, the details of any
settlement that may have been reached.
E. Vogel v. TVells does not control the outcome of this case and does not present anobstacle to reversing the decision below.
The `I'enth District leaned heavily on this Court's decision in Vogel, but the lower court
misinterpreted that precedent. App. Op. at ^119-24. That decision is not the sweeping
pronouncement that the Tenth District took it to be; its reach extends no further than the narrow
issue presented in that case-----whether gifts constitute "benefits." And if Vogel did purport to
r.each. beyond the facts of that case, it should now be limited or overruled.
All that vNas asked of this Court in Vogel was to decide whether three different payments
constituted "benefits" for purposes of the set-off provision of R.C. 2744.05. Vogel, 57 Ohio St.
3d at 98. The payments were: a gift from the decedent's father for funeral expenses, a gift f.'rom
the decedent's enlployer, aiid Social Security payments provided to the decedent's widow and
two minor children. Relying on the second definition of "benefit" found in Black's I-aw
14
Dictionary, the Court determined that Social Security payments were benefits while gifts, such as
those from the decedent's father and employer, were not. Id. The definition of "benefit" taken
from Black's was sufficient to resolve the question before the Court in Vogel. It was
unzt.ecessary for the Court to speak more broadly in that case and so it did not. 'l'he Court in
Vogel simply held that gifts are not benefits for the purposes of the statute.
This case, however, presents a different question: whether settlement proceeds constitute
benefits. T'o put it in the context of Vogel, this case asks whether settlement proceeds are more
like Social Security payments or more like gifts. Settlement proceeds are much closer to social
insurance than to gifts, and nothing in t'ogel requires the Court to hold otherwrise.
Settlements are entirely unlike gifts. A gift is "something that is bestowed voluntarily
and without compensation." American IleritageDictionary, 741 (5th ed. 2011). It is not
something that a plaintiff receives (and certainly not something a plaintiff is "entitled to
receive") "for injuries or loss." See R.C. 3345.40(B)(2); see also R.C. 2744.05(B). By
comparison, a settlement is not something given voluntarily nor is it something that is given
without compensation. Indeed, compensation is an essential part of any settlement-a potential
plaintiff receives payment in exchange for an agreement to release the settiing party from any
future legal action. A gift is given with no strings attached; a settlement is laced with conditions.
But if the Court now believes that Vogel resolved the question of whether settlement
proceeds may constitute benefits (and that Vogel means that they caniiot), then that decision must
be clarified, limited, or overruled. A narrow interpretation of the term "benefits" that excludes
settlement proceeds cannot stand. Such an interpretation controverts the cornmon meaning of the
word, ignores the structure and purpose of R.C. 3345.40 more generally, and requires indulging
in the proposition that the General Assembly enacted a statute that gives state colleges less
15
protection from double recoveries than other defcndants. If that is truly what Vogel said, then it
was wrongly decided. It would be an unworkable decision and departing from it would create no
hardship because no party could reasonably anticipate an injury and therefore could not be said
to have relied on that decision. ,SeeWestfield Iris. Co. v. Galatis, 100 Ohio St. 3d 216, 2003-
nhio-5849 syl. 111(setting forth considerations for deciding whether to depart from an earlier
decision).
CONCLUSION
For these reasons, the Court should reverse the judl;nlent of the Tenth District below.
Respectfully submitted,
MICH.AEL DEWINE (0009181)Attorne General Ohio
ALEXANDREI T. SCI MIVIER* (0075732)Solicitor General
*Counsel of RecordMICHAEL J. I=1.ENI)Ii:RSI1OT (0081842)Chief Deputy SolicitorSAMI3EL C. PETERSON (0081432)Deputy SolicitorANNE BERRY STRAIT (001.2256)Frincipal Assistant Attorney General30 East Broad Street, 17t11 FloorColumbus; Ohio 43215614-466-8980614-466-5087 faxalexandra. schimmer(cohioattorneygeneral.gov
Counsel for Defendant-AppellantUniversity of Cincinnati
16
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Merit Brief of Defendant-Appellant University of
Cincinnati was served by U.S. mail this 22nd day of July, 2013, upon the following counsel:
Kenneth S. BlumenthalJonathan R. StoudtRottrke & Blumenthal, LLP495 S. High StreetSuite 450Columbus, Ohio 43215
Michael R. ThomasKirby, Thomas, Brandenburg & D'Amico4 Sycamore Creek DriveSpringboro, Ohio 45066
Counsel for Plaintiffs-AppelleesCynthia Adae, et al.
APPENDIX
31tt the
49buPrenle Court of Obio
CYNTI-IIA A. ADAE, et al.,
1'lazntiffs-Appellees,
V.
UNIVERSITY OF CINCINNATI, et al.,
Defendants-Appellants,
Case No.
On Appeal from theFranklin CountyCourt of Appeals,Tenth Appellate District
Court of AppealsCase No. 12AP-406
NOTICE OF API'EAI, OF DE FFNDA.NT-APBELLAN'I'UNIVERSITY OF CINCINNATI
KENIti'ETH S. BLUMENTHAL* (0008908)*C'ounsel of Record
Rourke & Blumenthal LLP495 S. 11igh StreetSuite 450Columbus, Ohio 43215614-220-9200
Iv11CHA.EL,1Z. Tl-IOMAS (0011638)Kirby, Thomas, Brandenburg & D'Amico4 Sycarnore Creek DriveSpringboro, Ol1io 45066937-74$-1004
Counsel for Plaintiffs-AppelleesCynthia Adae, et al.
M1CI-1AEI. DEWINE (0009181)A.ttorrmey Cieneral of Ohio
ALEXA-NTDRA T. SCHIMMER* (0075732)Solicitor General
*Counsel ofRecordMICHAEL J. HEN13E_RSHOT (0081842)Chief Deputy Solicitor?s:N^VE BERRY STRAIT (0012256)Principal Assistant Attomey General30 East Broad Street, 17th FlootColumba.s, OI-sio 43215624-466-8980614-466-5087 [email protected]
Counsel for Defendant-AppellantUniversity ofCinciziitati
EXHIBIT A
NOTICE OF APPEAL OF DEFENDANT-A1'PEL:LANTLf NIVERSIT^.' OF CINCINNATI
Defendant-Appellant University of Cincinnati gives notice of its jurisdictional appeal to
this Court, pursuant to Ohio Supreme Court Rule 5.02 and 7.01, from a decision of the Tenth
District Court of Appeals captioned Adae v. UniveYsity of Cincinnati No. 12AP-406 and
journalized on January 10, 2013. Date-stamped copies of the Tenth District's Tournal Entry and
(3pinioFi and the Opinion of the Court of Claians are attached as Exhibits A and B, respectively.
For the reasons set forth in the accompanying Memorandum in Support of Jurisdictioxi,
this case involves a question of public and great general interest.
Respectfully submitted,
iu1ICI-IAEI, D£;WINE (0009181)Attorney General of Ohio
x fV . - ^...- -?-.- C-e-° ^ -.. _
ALEXANDRA T. SCHIMMER* (0075732)Solicitor General
*CvunseZ of RecordMICHAEL J. HENDERSHOT (0081842)Cbief Deputy SolicitorANNE BERRY STRAIT (0012256)Principal Assistant Attorney General30 East Broad Street, 17th FloorColumbus, Ohio 43215614-466-898061.4-466-5087 [email protected]
Counsel for Defendant-AppellantUniversity of Cincinnati
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Notice of Appeal of Defendant-Appellant University
of Cincinnati was served by U.S. mail this 22nd day of February, 2013, upon the following
counsel:
Kenneth S. k3lumentlialRourke & Blumenthal LLP495 S. High StreetSuite 450Columbus, Ohio 43215
Michael R. ThomasKirby, Thomas, Brandenburg & T3'Arra.icQ4 Sycamore Creek DriveSpringboro, Ohio 45066
Counsel for Plaintiffs-AppelleesCynthia Adae, et al.
'
Alexandra T. ScbiznmerSolicitor General
0A015 - Q70
IN TI-iE COURT OF APPEALS OF OHIO
TENTH APPELLATE DIS'I'1Z.ICT
Cynthia A. Adae et al.,
Plaintiffs-Appellees,
v. No. 12AP-4o6(Ct. of Cl. No. 2007-08228)
State of Ohio et al.,(REGULAIZ. CALENDAR)
Defendants-Appellees,
University of Cincinnati,
Defendant-Appellant.
D E C I S I O N
Rendered on January 8, 2013
Rourke & Blumenthal, LLP, and Kenneth S. Blumenthal;Kirby, Thontas, Brandenburg & 17`anzico, LPA, andMichael R. Thonias, for plaintiffs-appellees.
Michael DeWine, Attorney General, and Anne Berry Strait,for defendant-appellant.
APPEAL from the Court of Claims of Ohio.
PER CURIA1b1.
^¶ 1} Defendant-appellant, University of Cincinnati ("appellant`° or "UC"),
appeals the Court of Claims of Ohio's judgment in favor of plaintiffs-appellees,
Cynthia A. Adae and Howard R. Adae (collectively, "appellees"), on their claims for
medical malpractice and loss of consortium. For the following reasons, we affirm.
EXHIBIT B
OA015 - Q71
No. 12AP-4o6
I. BACKGR:OUND
2
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0A015 - Q72
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No. 12AP-4o6 3
seems like [Mrs. Adae's] problem may have more so been either some kind of infectious
process or possibly a thyroid abnormality."
{^ 6} On July i, 2oo6, Mr. Adae telephoned Dr. Avera about Mrs. Adae's
hospitalization and relayed that Mrs. Adae was suffering from continuing pain. Upon
Dr. Avera's recommendation, Mr. Adae transported his wife to the Middlelown Regional
I-lospital ("MRH") emergency room, where Mrs. Adae was seen by Tao Nguyen, M.D. At
MRH, CT scans were taken of Mrs. Adae's chest and head, which produced a negative
result for pulmonary embolism, but revealed a sin-iis infection. Although Dr. Nguyen
requested copies of Mrs. Adae's medical records from CMH, CMH's records department
was closed for the weekend. Dr. Nguyen discussed Mrs. Adae's case with Dr. Avera and
instructed Mrs. Adae to follow up with Dr. Avera on Monday, July 3. Mrs. Adae was
discharged with a prescription. for pain medication.
{¶ 7) Also on July z, three days after her discharge from. CMH, the CMH
laboratory reported to the resident on duty that Mrs. Adae's blood cultures were
showing "gram positive cocci in clusters." The following day, the laboratory reported to
Dr. Pesante that Mrs. Adae's blood cultures were positive for staphylococcus aureus, a
type of bacterial infection. Neither the resident on duty on July x nor Dr. Pesante
contacted Dr. Bain or the attending physician on-call about Mrs. Adae's blood culture
results. The trial court found it unclear whether any CMH employee atteznpted to
contact appellees or. Dr. Avera. Dr. Avera testified, however, that, had she learned of the
positive blood culture results, she would have immediately admitted Mrs. Adae to the
hospital and would have "empirically started her on antibiotics and then attempted to
find the source of the infection." (Dr. Avera Deposition 26.)
{T 8} Mrs. Adae was imable to secure an appointment with Dr. Avera until
Wednesday, July 5, 20o6. On the evening of July 4, 20o6, Mrs. Adae began to
ehTerience flu-like symptoms, nulnbness and weakness in her extremities, and slurred
speech. Mrs. Adae also fell at least once and dropped things several times that evening.
By the time of her appoizitment with Dr. Avera, Mrs. Adae could barely walk. Dr. Avera
noted that Mrs. Adae's blood sugar was extremely elevated, and she believed that Mrs.
OAOl5 - Q73
No. 12AI'-4o6 q.
Adae was suffering from diabetic ketoacidosis. Accordingly, Dr. Avera sent Mrs. Adae to
MRH for admission.
{^ 9} At MRH, Mrs. Ad-ae's symptoms progressed to paralysis of her lower
extremities. An MRI of Mrs. Adae's back revealed a spinal epidural abscess, a rare,
infectious disease process that, left untreated, results in neurological deficits,
progressive paraplegia, and death. This diagnosis was made approximately one week
after Mrs. Adae initially reported to CMH. On the morning of July 6, 2oo6, Mrs. Adae
underwent neurosurgery, described as a decompressive laminectomy of Ti-T6 with the
evacuation of the epidural abscess. She remained hospitalized until July 18, 2oo6. As a
result of the delay in diagnosis, Mrs. Adae was rendered an incomplete paraplegic and
has suffered the loss of her bladder and bowel functions.
{¶ 10} In October 2007, appellees filed a medical malpractice action in the
Clititon County Court of Common Pleas against CMI-I and several of the resident
physicians employed in its family practice residency program., Appellees also initiated
this Court of Claims action against UC, based on the care rendered by its employee, Dr.
Bain, in her role as attending physician for the family practice residency program at
CMH.2 Appellees alleged that Dr. Bain was negligent in failing to order appropriate
testing to determine the cause 4f Mrs. Adae's syznptoms, in ignoring Mrs. Adae's self-
reported fever, and in discharging Mrs. Adae before obtaining the results of her blood
cultures. In the Court of Claims, appellees alleged that Dr. 13ain's negligence was the
sole proximate cause of their damages. In its answer, UC asserted, among other
defenses, that others' conduct caused andJor contribu.ted to appellees' damages.
{q] 11} The Court of Claims stayed appellees' action pending the resolution of the
Clinton County proceedings, which terminated after appellees entered into a settlement
agreement with CMH and its insurer for 82 million. Thereupon, the Court of Claims
reactivated and bifurcated this case. The Court of Claims conducted a trial as to liabilitv
from August 23 to 25, 2olo. At the close of trial, appellees moved for a partial directed
i Although appellees also initially named Dr. Avera, Dr. Nguyen, and MRH as defendants, thosedefendants ivere ultiinatelv dismissed.2 Appellees originaTl3> nained C;MH and Dr. Pesante as defendants in the Colart of Clainis, but the court suasponte dismissed those defendants J a a Pre-Screening Entry.
0A015 - Q74
No. 12AP-4o6 5
verdict, as to UC's affirmative defense of apportionment of liability to non-parties. They
argued that UC failed to present any competent evidence from wlaich the court could
assign. a percentage of liability to any non-party. On June 1, 2011, the Court of Claims
found in. fa`ror of appellees on the question of liability. The court specifically found that
UC was liable for the care rendered by Dr. Bain and that "Dr. Bain's negligence [was] the
sole proxiniate cause of [Mrs. Adae's] outcome." Having concluded, based on the
evidence, that Dr. Bain's negligence was the sole proximate cause of appellees' damages,
the court denied appellees' motion for a partial directed verdict as moot.
{T, 12} On April 6, 2012, after a damages trial, the Court of Claims entered
judgment in favor of appellees in the amount of 83,311,-6i.84. The court noted that, at
the time of trial, the parties contemplated that any award of damages would be reduced
by the amount of appellees' settlement with CMH pursuant to R.C. 3345•4o(B)(2)-
Neverthele.ss, the Court of Claims held that recent authority from this court precluded a
setoff of the settlement amount. UC filed a timely notice of appeal.
II. ASSIGNMENTS OF ERROR
{TI 13} UC presently asserts the following assignments of error:
1. The Court of Claims erred in finding that the $2 millionsettlement received by the Adaes from [CMH] was not abenefit subject to the setoff requirement of R.C.3345•4o(B)(2)•
2. The Court of Claims erred in finding that the Adaes hadpresented evidence sufficient to sustain their burden of proofas to the necessity and cost of their proposed life care plan,because the [Adaes'] witness, Carole A. Miller, M.D., was notqualified iinder Evid.R. 702(J3) to testify as an expert witnessin that regard.
3. The Court of Claims erred in au^arding damages for lostincome because the [Adaes] failed to produce sufficientevidence to support their claim.
Notably, UC does not assign as error the trial court's findings of liability or that Dr.
Bain's negligence was the sole proximate cause of appellees' damages.
oA015 - Q75
No. 12AP-4o 6
III. DISCUSSION
A. First Assignment of Error
6
}lj 14} I7C's first assignment of error involves a question of statutory
interpretation, namely interpretation of R.C. 3345.40(B)(2). Statutory interpretation is
a question of law that we review de novo. Aubry v. L'nzv. of Toledo Med. C.tr., ioth Dist.
No.1i.AP-5o9, 2o12-Ohio-1313, ¶ 10, citing State v. Banks, loth. Dist. No. xiAP-69, 2o1l-
Ohio-4262, ¶ 13. The primary goal of statutory interpretation is to determine and give
effect to the General Assembly's inteiit in enacting the statute. Id. To determine
legislative intent, we first consider the statutory language in context, constriiing the
words and phrases according to rules of grammar and common usage. Bartchy v. State
Bd. of Edn., 120 Obio St.3d 205, 2oo8-Ohio-4826, ¶ 16, citing State ex rel. Stoll v.
Logan Cty. Bd. of Elections, 117 Ohio St.3d 76, 2008-0hio-333, t 34. If the statutory
language is plain and unambiguous, a court may not resort to rules of statutory
interpretation, but must apply the statute as written. Banks at ¶ 13, citing State v.
Palmer, loth Dist. No. o9AP-956, 2o1o-Ohi0-2421, ¶ 2o, rev'd on other grounds, 131
Ohia St.3d 278, 2012-OhiO-58o.
{1; 151 R.C. 3345.4o(B)(2) limits tort damages recoverable against a state
ui-iiversity or college and provides, in pertinent part, as follows:
(B) Notwithstanding any other provision of the Revised Codeor rules of a court to the contrary, in an action against a stateuniversity or college to recover damages for injta.ry, death, orloss to persons or property caused by an act or omission ofthe state university or college itself, by an act or omission ofany trustee, officer, or employee of the state university orcollege while acting within the scope of his employment orofficial responsibilities * * -x, the following rules shall apply:
(2) If a plaintiff receives or is entitled to receive benefits forinjuries or loss allegedly irrcurred from a policy or policies ofinsurance or any other source, the benefits shall be disclosedto the court, and. the amount of the benefits shall bededucted from any award against the state university orcollege recovered by the plaintiff. No insurer or other personis entitled to bring a civil action under a subrogation
OA015 - Q76
No. 12AP-4o6
provision in an insurance or other contract against a stateuniversity or college ivith respect to such benefits.
7
J¶ 161 There is no dispute that this action falls within the parameters of R.C.
3345•4o(B), as an action against a state university to recover damages for injury or loss
caused by an act of a university employee, within the scope of her employment. Rather,
the parties' dispute centers around the applicability of the setoff rule in R.C.
3345.4o(B)(2). The trial court concluded that the settlement proceeds frozn CMH and
its insurer did not constitute "benefits" and that UC was, therefore, not entitled to a
setoff under R.C. 3345.4o(B)(2)• UC now argues that the trial court erred by concluding
that the settlement proceeds are not "benefits."
{¶ 1.7} In general, the appropriate measure of damages in a tort action is that
which will make the plaintiff whole. See Robinson v. Bates, 112 Ohio St.3d 17, 2oo6-
Ohio-6362, T 1_i, citing Pryor v. Webber, 23 Ohio St.2d 104, 107 (1970). As a corollary,
the state has a legitimate interest in preventing double recoveries by tort victims.
McKinley v. Ohio Btcr. of Workers' Comp., 170 Ohio App.3d 161, 20o6-Ohio-5271, ¶ 18
(4th Dist.), citing Holeton v. Crouse Cartage Co., 92 Ohio St.3d 115, z21-22 (2001).
Under the common-law collateral-source rule, evidence of compensation a plaintiff
received from collateral sources was not admissible to diminish the damages a tortfeasor
was required to pay for his negligent act. Pryor at paragraph two of the syllabus.
Accordingly, under the collateral-source rule, a plaintiff who has, for example, had his
medical expenses paid by another may still recover full damages for those expenses from
a defendant who is liable for the plaintiff's injury. Id. at 1n8, quoting 2 Harper and
James, The Law of Torts, Section 25.22 at 1343. ""i`o this extent, [the] plaintiff may get
double payment on account of the same iteins.' " Id. In this way, the collateral-sotirce
rule operated as an exception to the traditional measure of daznages and "'preven.t[ed]
the jury from learning about a plaintiff's income from a source other than the
tortfeasor' " so that a tortfeasor would not be given an advantage from third-party
payments to the plaintiff. Jaqzaes v. IVIanton, 125 Ohio St.3d 342, 2oxo-Ohio-1838, ¶ 7,
quoting Robinson at ¶ 11.
OA015 - Q77
No. 12AP-4o6 8
{¶ 18} State legislatures, including the General Assembly, have wrestled with.
statutory approaches to the collateral -s otirce ri.ile in the evolving landscape of tort law.
See Hanson, Ohio's Collateral Source Rule Following Robfnson v. Bates and the
Enactment of Ohio Revised Code Section. 2315.20, 40 U.Tol.L.Rev. 711, 720-21 (2009).
Since Pryor, which defined the Ohio collateral-source rule, the General Assembly has
enacted many statutes to limit the effect of the rule. Among the earliest of those statutes
were former R.C. 2743.02(B), former R.C. 2744•05(B)(1), and R.C. 3345•40(B)(2)> which
generally provide that the state, political subdivisions, and. state universities and
colleges are not responsible for certain damages paid by a collateral source.3 Currently,
in non-medical-malpractice cases against private defendants, R.C. 2315.2o(A) provides
that a "defendant may introduce evidence of any amount payable as a benefit to the
plaintiff as a result of the damages that result from an injury, death, or loss to person or
property that is the subject of the claim upon which the action is based," unless the
collateral source has a right of subrogation. Unlike R.C. 3345•4n(B)(2)9 which limits
damages by creating a statutory iight to setoff of "benefits k* * from a policy or policies
of insurance or any other source," R.C. 2315.2oo addresses the admissibility of evidence.
{¶ 19) The primary question here is whether the proceeds from appellees'
settlement Nvrith CMH constitute "benefits" under R.C. 3345•40(B)(2). In concluding
that they did not, the Court of Clainas relied on this court's recent decision in Aubry,
which addressed the statutory language of R.C. 3345•40(S)(2). This court premised its
Aubry decision upon the Supreme Court of Ohio's interpretation of the term "benefits"
in R.C. 2744•o5(B). See Vogel v. Wells, 57 Ohio St.3d 9z (lggi).
{¶ 20} In Vogel, the plaintiff filed wrongful death and sin-vivorship actions
against Wells and the city of r^kron, arising out of an automobile accident that resulted
in the death of the plaintiff's decedent. After the jury returned a verdict in favor of the
plaintiff and against Akron, the trial court granted a setoff and reduced the jury's
damage award by amounts that the plaintiff received or would receive from Social
3 While R.C. 3345•4o(B)(o-) and 2744.05(B)(1) contain the "benefits" language quoted above, former R.C.2743.02(t3), curreiltly R.C. z743.02(D), more broadly states that awards agairist the state "shall bereduced by the aggregate of insrirance proceeds, disability award, or other collatet•al recovery received bvtheclainiant."
OA015 - Q78
No. 12AP-06 9
Security, veterans' benefits, and gifts from the decedent's father and employer, including
the payment of funeral expenses. I'he court premised the setoff on former R.C.
2744.05(B), which protiided as follows:
"If a claimant receives or is entitled to receive benefits forinjuries or loss allegedly incurred froln a policy or policiesof insurance or any other source, the benefits shall bedisclosed to the court, and the amount of the benefits shallbe deducted from aiiy award against a political subdivisionrecovered by that claimant. No insurer or other person isentitled to bring an action under a subrogation provision inan insurance or other contract against a political subdivisionwith respect to such benefits."
(Emphasis added.) Vogel at 97-98. On appeal, the Ninth District Court of Appeals
concluded that Akron was not entitled to a setoff of amounts the plaintiff received from
the decedent's employer and father, and the court restored those amotints to the
judgment.
{^1 211 The Supreme Court, in Vogel, expressly adopted a definition of the word
"benefits" to be used with respect to R.C. 2744.o5(B). In determining whether the trial
court properly set off amounts received by the plaintiff, the Supreme Court stated, at 98,
as follows:
In order to determine what funds come under the purview ofthe collateral source setoff provisions of R.C. 2744.05(I3), wemust first ascertain what the term "benefits" means inrelation to the statute. The term "benefits" is nowheredefined in the statute. IIowever, a benefit has been definedelsewhere as "[f]inancial assistance received in time ofsickness, disability, unemployment, etc. either frominsurance or public programs such as social security."Black's Law Dictionary (6 Ed.zg9o) 15$. Under thisdefinition, tvhzch we adopt here, neither the gift from thedecedent's employer nor the payixient of funeral expenses bythe decedent's father constituted benefits tinder R.C.2744.05(13), and the court of appeals was correct in restoringthese funds to the decedent's estate.
(Emphasis added.)
oA015 - Q79
No. 12AP-4a6 10
{^r 22} In Aubrz^, this court applied the Supreme Court's adopted definition of
"benefits" to the statutory language in R.C. 3345.4o(B)(2), which. is identical to the
statutory language at issue in Vogel. Aubry involved medical malpractice claims arising
out of a surgical procedure performed by an employee of the Univei sity of Toledo
Medical Center, under the supervision of a doctor who was not a university employee.
The appellants filed an action in the Cotirt of Claims against the University of Toledo
Medical Center, arisxng out of its employee's negligence, and filed similar claims in the
Lucas County Court of Common Pleas against the supervising doctor. The appellants
settled their coznxnon pleas court case for $295,0oo. The Court of Claims stibsequently
entered judgment in favor of the appellants and apportioned liability for appellants'
damages equally between the two doctors. In its final judgment, the Court of Claims
deducted the $295,000 settlement from the portion of the total damages apportioned to
the University of Toledo Medical Center. 1'his court reversed with respect to the setoff
after concluding that the settlement proceeds did not meet the Vogel definition of
"benefits." Because the setklement proceeds were not "benefits," they were not stlbject
to setoff under the statute. Aubry at ¶ 34.
{¶ 23} UC makes several argun-ients in its attempt to avoid application of Aubry
here. For example, it argues that the proceeds of appellees' settlement with CMII
constitute "benefits," even under the Vogel definition. UC also argues that, to the extent
Aubry can be read to hold that settlement proceeds with non-party tortfeasors are not
"benefits" for purposes of R.C. 3345.4o(B)(2), Aubrg is wrongly decided and should be
overruled. Finally, UC argiies that this case is factually andjor procedurally
distinguishable from Aubry.
{¶ 24} We first reject UC's argument that th.e CMH settlement proceeds are
"benefits" under the definition set forth in Vogel. Mixing the Vogel definition with the
statutory language of R.C. 3345.4o(B)(2), UC contends that the settlement paynient was
"'[fjinanca.al assistance received in time of sickness, disability, unemployment, etc.' "
from insurance or from "any other source." UC maintains that use of the phrase "any
other source" in R.C. 3345•4o(B)(2) precludes the restriction of "benefits" to payineiits
from insurance or public programs, such as Social Security. It contends that the
OA015 - Q80
No. 12AP-4o6 ^t
definition of "benefits" adopted in. Vogel ignores the statutory language stating that
benefits may arise from "insurance or any other source." (Emphasis added.) Former
R.C. 2744.05(B), at issue in Vogel, contained language identical to the "any other
source" language in R.C. 3345•4a(B)(2), however, and the Supreme Court adopted a
definition of "benefits" that limited thein to payments from insurance or public
programs. A different definition must come from the Supreme Court itself; we continue
to rely on Vogel.
J¶ 251 UC also argues that AubrJ is distinguishable from this case or,
alternatively, that we should limit or overturn Aubry. It maintains that, unlike in
Aubry, a refusal to set off appellees' settlement proceeds from CMI-i would result in
appellees receiving a double recovery. With no setoff in Aubry, the plaintiffs were
entitled to recover $337,500 from the defendant, in addition to the 5295,000 settlement
from the other alleged tortfeasor, which amounted to less than the $675,000 in total
damages calculated by the Court of Claims. Here, with no setoff, appellees are entitled
to recover the fitll 83,311.,761.84 judgment from UC and are entitled to retain the $2
million settlement from CMt-t, for a total recovery of approxilnately $5.3 million, well in
excess of the total damages determined by the Court of Claims.
{T 26} UC argues that Aubry, by its terms, does not apply Where the plaintiff
would receive a double recovery. UC relies on a statement in relation to the Aubr,y
defendant's reliance on 1Ulitchel v. Borton, 70 Chio App.3d 141 (6th Dist.199o). In
.Mitchel, the court found that sick pay received by a public-employee-plaintiff fell within
the collateral-source rule in R.C. 2744.05. Mi:tchel, however, was decided prior to the
Supreme Court's decision in Vogel. Nevertheless, this court also distinguished the sick
pay benefits in Mitchel from the settlement proceeds in Aubry. We noted that, unlike in
Mitch:el, where recoupm.ent of lost wages in addition to the sick pay received would
likely result in double compensation, the plaintiffs in Aubry would not reap a double
recovery because the University of Toledo Medical Center and the non-party doctor
were liable only for their proportionate share of the damages "[u]nder the apportioned
liability scheme employed in this case." Id. at ¶ 33. That staternent, however, is mere
dicta, as our ultimate holding in Aubry was that "the settlement proceeds appellants
OA415 - Q81
No. 12AP-4o6 12
received * * * do not fall within the scope of 'benefits,' as that term is used in R.C.
3345.4.o(B)(2)." Id. at ¶ 34.
{¶ 27} The question of statutory interpretation is a question of law. Id. at ¶ l.o.
Both Aubry and this case, as well as Vogel, involve interpretations of identical statutory
language. Interpretation of the plain statutory language does not depend upon the facts
or procedural history of a given case, and the meaning of the language does not change
based on the effect of its application. Accordingly, we discern no basis for diverging
from this court's very recent holding in Atcbry based on factual and/or procedural
differences between.Aitbry and this case.
{T, 28} Beyond tl-iis court's express application of the Vogel definition to R.C.
3345.4o(B)(2), the potential for a double recovery, in and of itself, does not mandate a
setoff. 'With respect to R.C. 2744.05(B), the Supreme Court of Ohio has held that "a
collateral benefit is deductible only to the extent that the loss for which it compensates is
actually included in the [judgment from which a setoff is sought]." I3uchrnan v. Bd. of
Edn. of TIVayne Trace Local 5chool Dist., 73 Ohio St.3d 260, 269 (1995). It is the
defendant's burden. to prove the extent to which it is entitled to a setoff. Id. at 270. "The
law precludes an off-set without proof of a double recovery (i.e., that the Uudgment]
includes the amounts paid by collateral sources)." Baker u. Cleveland, 8th Dist. No.
93952, 2O1o-0hio^-5583, T 53. The record here contains no evidence from which we
could determine, without speculation., what portion of the settlement proceeds
duplicated amounts included in the Court of Claims' judgment. The settlement
agreement includes no admission of liability by CMH and no allocation of the settlement
funds to specific damages. Furthermore, because the trial court found UC solely
responsible for appellees' damages, a finding that UC did not appeal, UC is responsible
only for damages that th.e court found stemmed from the negligence of its employee.
{^ 29} Finally, UC argues that the Aubry decision is simply wrong, to the extent it
creates an exclusion of settlements with non-party tortfeasors from the dei"inition of
"benefits," as the General Assembly's clear intent in enacting R.C. 3345-40(B)(2) was to
abrogate the collateral-source rule and to prevent plaintiffs from collecting double
recoveries from public fur.lds. The collateral setoff requirements applicable to claims
oA015 - Q82
No.12AF-4ob 13
abainst state universities or colleges, under R.C. 3345.40(B)(2), differ from the setoff
requirements applicable to claims against other state entities. R.C. 2743.02(D), for
example, provides that "[r]ecoveries against the state shall be reduced by the aggregate
of insurance proceeds, disability award, or other collateral recovery received by the
claimant." The General Assembly expressly recognized the difference between R.C.
2743.02(D) and 3345•4o(B)(2) by including within R.C. 2743.02(D) that it does not
apply to civil actions against astate university or college because "[t]he collateral
benefits provisions of division [R.C. 3345.40(B)(2)] apply under those circumstances."
Had the General Assembly intended that the collateral recoveries sub,ject to setoff under
those statutes were co-existent, the exception in R.C. 2743.02(D) would be rendered
meaningless. Accordingly, we reject UC's argument that Aubry is contrary to clear
legislative intent.
{¶ 30) Based on this court's recent precedent in Aiibry, we conclude that
appellees' settlement proceeds from CMH do not fall within the scope of "benefits,"
under R.C. 3345.40(B)(2). The Supreme Court has expressly adopted a definition of the
term "benefits" in the context of identical statutory language, and this court has applied
that definition to R.C. 3345.4o(B)(2). Absent contrary direction from the Supreme
Court of Ohio or a statutory amendment by the General Assembly, Aubry compels the
conclusion th.at no setoff was permitted in this case. For these reasons, we overrule UC's
first assignment of error.
B. Second Assl.gnment of Error
{^( 31) In its second assignment of error, UC argues that the Court of Claims erred
by finding sufficient etidence regarding the necessity and cost of appellees' life-care plan
because appellees' witness, Carole A. Miller, M.D., was not qualified under Rvid.R.
702(B) to offer expert testimony in that regard. Specifically, UC argues that Dr. Miller
cvas not qualified to testify about the necessity of various components of appellees'
proposed life-care plan (specifically, the amount of in-home care required), about what
Mrs. Adae will need to maintain a good quality of life, and about Mrs. Adae's life
expectancy. Although UC frames its second assignment of error as contesting the
oA.015 - Q83
No. 12AP-4o6 14
sufficiency of the evidence, its sole argument is that the Court of Claims erred by
admitting Dr. Miller's testimony under Evid.R. 702(B).
{^ 32} Under Evid.R. 702(S), a witness may testify as an expert if the witness's
testimony relates to matters beyond the knowledge or experience possessed by lay
persons or dispels a misconception among lay persons; the wztness is qualified as an
expert by specialized knowledge, skill, experience, training or education regarding the
subject of the testimony; and the witness's testimony is based on reliable scientific,
technical or other specialized information. The witness "need not have complete
knowledge of the field in question, as long as the knowledge he or she possesses will aid
the trier of fact in pei-forming its fact-finding function." State v. Drummond, i.ii Ohio
St.3d 14, 2oo6-Ohio-5o84, ¶ 13, citing State v. .Baston, 85 Ohio St.3d 418, 423 (1999)•
The determination of whether a witness possesses the necessary knowledge, skill,
experience or training to testify as an expert is left to the trial court's discretion.
Camphell U. The Daimler Group, Inc., 115 Ohio App.3d 783, 793 (ioth Dist.1996), citing
Scott v. Yates, 71 Ohio St.3d 219 (1994). A court's determination of tilrhether a witness is
qualified to testify as an expert will not be reversed absent an abuse of discretion. Scott
at 221. Abuse of discretion connotes more than an error of law or judgment; it implies
that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 33} Dr. Miller's credentials are undisputed. She is a facLilty member of the
Department of Neurological Surgery at The Ohio State University Medical Center and is
a board-certified physician, with 40 years of experience in neurosurgery and 45 years of
experience in treating patients with injuries similar to Mrs. Adae's. Dr. Miller
previously testified that, although she does not manage patients with spinal cord
injuries, she regularly sees patients at the Spine Center with a range of spine problems
and peripheral nerve lesions. She testified that "I know the kinds of struggles and the
difficulties that patients who have spinal cord injuries and who have this level of
disability have" because "I see them all the time." (Dec. 21, 2ozl Dr. Miller Deposition
56.) Dr. Miller also testified that she has reviewed life-care plans on many pre-'rzous
occasions. IIC contends that Dr. Miller lacked specialized knowledge, skill, experience,
OA015 - Q84
No. r2AP-4o6 15
training or education in managing long-term physical problems or rehabilitation of
patients with spinal cord injuries and that she was, therefore, unqualified to testify
about the reasonableness or medical necessity of the various components of appellees'
proposed life-care plan.
{^,, 34} "Under Ohio law, any doctor licensed to practice medicine is competent to
testify on medical issues." Schooley v. Ohio Dept. of Rehab & Corr., ioth Dist. No.
05AP-828, 2oo6-Ohio-2:072, ¶:i3, citing Canczdy v. Dept. of Rehab. & Corr., :roth Dist.
No. 93AP-596 (Nov. 2, 1993), and Rouse U. Riverside Methodist Hosp., 9 Ohio App.gd
2o6 (ioth Dist.i983). In Rouse, at 212, this court stated that the witness, a pathology
specialist, was not precluded from testifying that medical bills were the direct result of
excess radiation. The fact that the witness's specialty was pathology, rather than
radiation, affected oz-ily the weight to be given the doctor's testimony, not its
admissibility.
{¶ 35} Upon review, we conclude that the triai court did not abuse its discretion
by admitting or relying upon Dr. Miller's testimony regarding the reasonableness and
necessity of the life-care plans adn-iitted into evidence. As a licensed physiciari, Dr.
Miller was competent to testify on medical issues. See Schooley. The trial court could
easily have concluded that Dr. Miller's extensive experience dealing with patients
suffering from spinal cord injuries, despite her lack of day-to-day management of
patient care or rehabilitation, con.stituted specialized knowledge that would assist the
court in its fact-finding functions. Moreover, the trial court was in a position to weigh
Dr. Miller's testimony, as it was subject to vigorous cross-examination by liC's counsel.
{^( 361 For similar reasons, we conclude that the trial court did not abuse its
discretion by admitting Dr. Miller's opinion that Mrs. Adae would have a normal life
expectancy if she receives appropriate medical care. Dr. Miller noted that Mrs. Adae is
not obese, has her diabetes well-controlled, and has only mild hypertension. She
emphasized that appropriate medical care is essential for avoiding complications that
might be related to her spinal cord injury and urinary dysfunction. In addition to Dr.
Miller's testimony, the trial court admitted into evidence a mortality table, which is
generally admissible in evidence upon the issue of a plaintiffs life expectancy. See, e.g.,
t}A015 - Q85
No. 12A.P-4o6 x{,
Wood v. P'enwell, ioth Dist. No. 84AP-132 (Nov. 1, 1984). Again, Dr. Miller's testinzony
was subject to cross-examination, and the trial court was presented with contradictory
opinions from IJC's expert witness, Michael Yaffe, M.D. '1'he court was able and entitled
to assess and weigh the differing opinions regarding Mrs. Adae's life expectancy.
Because we discern no error in the trial court's admission of expert testimony by Dr.
Miller, we overrule UC's second assignment of error.
C. Third Assignment of Error
{^ 37} In its third and final assignment of error, UC claims that the Court of
Claims erred by awarding damages for lost income because the record lacked sufficient
evidence upon which the court could base such an award. Sufficiency is "'"a term of art
meaning that legal standard which is applied to determine whether the case may go to
the jury or whether the evidence is legally sufficient to support the jury verdict as a
matter of law." " * In essence, sufficiency is a test of adequacy. Whether the evidence
is legally sufficient to sustain a verdict is a question of law.'" Eastley v. Volkman, 132
Ohio St.3d 328, 2o12-Ohio-2179, ¶ll, quoting State v. 7'hompkins, 78 Ohio St.3d 380,
386 (1997), quoting Black's Law Dictionary 1433 (6th Ed.199o). 'I`he standard for
review of the sufficiency of the evidence in a civil case is whether the verdict could
reasonably be reached from the evidence. 171 re J.B., ivth I)ist. No. o8AP-i1o8, 2009-
Ohio-3o83, T 2o, citing Brooks-Lee v. Lee, loth Dist. No. 03AP-z'49, 2005-Ohio-2288,
1I i9.
{^, 38} R.C. 33454Q(A)(2)(a)(i) defines "actual loss" as ir-icluding "[a]il wages,
salaries, or other compensation lost by an injured person as a result of the injury,
including wages, salaries, or other compensation lost as of the date of a judgment and
future expected lost earnings of the injured person." (Emphasis added.) The measure
of damages for impairment of earning capacity is the difference between what the
plaintiff was capable of earning before her injury and what she is capable of earning
thereafter. Ratlzff v. Colasurd, loth Dist. No. 98AP-So4 (Apr. 27, 1999), citing Deyo v.
Adjutant General's Dept., zoth Dist. No. 93t1PI12-1667 (Aug. 16, x994).
{^, 39} Predictions about future-earning capacity are necessarily somewhat
speculative. See Andler v. Clear Chann.el Broadcasting, Inc., 670 F.3d 717, 726 (6th
oA415 - Q86
No. 12AP-4o6 17
Cir.2o12), citing Fastnian v. Stanley Works, 18o ()hio App.3d 844, 2oog-Ohio-634
(ioth Dist.). An exact calculation of what the plaintiff could have earned but for her
injury is not required; the plaintiff must prove damages with reasonable certainty.
Andler at 726; _F,astman at ¶ 24. titihen calculating ea.rning capacity, experts often
consult actuarial tables, Bureau of Labor Statistics figures or other averages along with
the plaintiffs historical earnings. Ancller at 728. See also Taylor v. Freezlonz Arms,
Inc., 5th Dist. No. CT2o08-oo71, 2oo9-Ohio-6o9i, ¶ 16. In Andler, at 728, the Sixth
Circuit explained that concern over an econornist's use of Bureau of Labor Statistics
averages suggested "a confusion of the concepts of lost earnings and lost earning
capacity," noting that lost-earning capacity does not necessarily rely on the plaintiffs
historical earnings. For example, a plaintiff who is unemployed or underemployed at
the time of injury may nevertheless recover damages for lost-eaming capacity. Id. at
727.
{^ 40} Mrs. Adae worked on the family farm from 1978 until her injuries,
although she was never paid a wage or salary. Although Mrs. Adae has re.sumed limited
work in the roadside farm market, slie cannot contribute to the farming operations to
the extent she previously did. To establish Mrs. Adae's lost-earning capacity, appellees
presented the expert testimony of economist David W. Boyd, Ph.D. Dr. Boyd testified
that the present value of Mrs. Adae's lost-earning capacity was $284,459.73, and the
trial court awarded that value for Mrs. Adae's reduced-earning capacity.
{^1 41} In his analysis of Mrs. Adae's earning capacity, Dr. Boyd relied on reports
that, prior to her injury, Mrs. Adae worked. ten hours per day, six or seven days pei• week
on the farm, and that, since her injury, she has been limited to working four and one-
half hours per day. In his calculations, Dr. Boyd assumed, for purposes of Mrs. Adae's
pre-injury earning capacity, that Mrs. Adae worked ten hours per day, five days per
week, fifty weeks per year. For purposes of her post-injury earning capacity, Dr. Boyd
assumed Mrs. Adae was capable of working four and one-half hours per day, five days
per week, fifty weeks per year. UC has not con.tested Dr. Boyd's reliance on those
reports or assumptions as to Mrs. Adae's working hours.
QAd15 - Q87
No. 12AP-4o6 18
{¶ 421 Dr. Boyd testified. that he calculated Mrs. Adae's reduced-earning capacity
by using the average hourly wage published by the United States Bureau of Labor
Statistics for Ohio farm, nursery, and greenhouse workers and laborers. That wage was
$10.43 per hour in 2007. Dr. Boyd stated that his analysis is not necessarily based on an
assumption that Mrs. Adae was being paid as a farm worker, but on the assumption that
her earning capacity is captured by the average wages of farm workers reported by the
Bureau of Labor Statistics. According to Dr. Boyd, that methodology is standard in
cases with iiidividuals, such as Mrs. Adae, who are not paid a wage for their work. He
testified that, although Mrs. Adae did not directly collect a wage, there is, nevertheless,
value to her work and that she had a capacity to earn income. I)r. Boyd stated that
$10.43 per hour, as reported by the Bureau of Labor Statistics, represents the minimum
value of Mrs. Adae's lost-earning capacity.
{^ 43^ tiC contends that, to prove lost income and earning capacity, appellees
-were required to present evidence of lost earnings to the farming operations because
Mrs. Adae was not an hourly worker and did not receive a salary. Appellees did not
present the farm's financial statements, but we do not find the absence of such
statements fatal to appellees' entitlement to damages for loss of earning capacity.
Rather, the trial court was entitled to weigh Dr. Boyd's expert opinion, informed by UC's
cross-examination of Dr. Boyd. Upon review, we conclude that the trial court was
entitled to rely on Dr. Boyd's expert testimony as to Mrs. Adae's lost-earning capacity
and that Dr. Boyd's testiniony constituted sufficient evidence to support the trial court's
award of damages. Accordingly, we overrule UC's third assignment of error.
IV. CONCLUSION
{Ti 44} Having overruled each of UC's assignments of error, we affirm the
judgment of the Court of Claims of Ohio.
Judgment affirmed.
KI,ATT, BRYANT and TYA.CK, JJ., concur.
oAO15 - Y68
IN 'I'HE COURT OF APPE, ALS OF OHIO
TENMI APPEUA'fE DISI`RICT
Cynthia A. Adae ei al.,
P1aiii !'if& -Appelleess,
V.
State of Ohio et al
Defei-.tdarzts-Appt^Ilees,
I^ iaz`rer5ityof C€.tlcffi.t:ia tz,
Def ei-idant-Appell ant.
No. 1? AP- 4C3 €3(Lf. of Cl. No. 20,0; i?h2`?8)
(REGULAR CALEND.'ifZ)
JUDGMENT ENTRY
1,'ar the reasc^ils stated in the decisien of this court i-ziidered hereiia oii
,la:n^iar.y,9, 2r^i.3, api?e11az-it`s assignz-nents of error are overruled, and it is the jud^^zieiit aa^tc^
order of this carizt that tlie judgmeilt of tIae CO-Lizt of Clainiy of OIzio is affirmed. Costs
assessed to appellaiTt.
Ji:tclg^ AN'illaam A. Matt, P.J.,.,
- .zS i .4 .i'^^.?.... _ . ...
Judge Pe^" S3ryailt
L
',., -:^ S^*^^^
JtlC^^e, G. Gc`t7 y-1 )- a C k (;.>'s
EXHIBIT C
[Cite as Adae v. Univ. of Cincirenati, 2412-Ohio-3855.1
s^ 4
Court of Claims of OhioThe Ohio Judicial Center
65 South Front Street. Third FloorColumbus, OH 43215
614.387.9840 or 1.800.824.8263www.cco.state.oh.us
CYNTHIA A. ADAE, et al.
Plaintiffs
V.
UNIVERSITY OF CINCINNATI, et al.
Defendants
Case No. 2007-08228
Judge Alan C. Travis
DECISION
{¶ 1} Plaintiffs brought this action alleging medical negligence and loss of
consortium, The issues of liability and damages were bifurcated. After a trial on the
issue of liability, the court rendered judgment in favor of plaintiffs. The case then
proceeded to trial on the issue of damages.
{112} As an initial matter, regarding the deposition transcript of Jeffrey
Strakowski, M.D., which was admitted into evidence as Defendants' Exhibit N, all
evidentiary objections set forth therein are OVERRULED.
{¶ 3} Plaintiffs alleged that Jennifer Bain, M.D., an employee of defendant
University of Cincinnati, was negligent in failing to timely diagnose and treat the spinal
epidural abscess suffered by plaintiff Cynthia "Cindy" A. Adae, and that such failure
resulted in her sustaining permanent neurological deficits. After trying the issue of
liability, the court concluded that Dr. Bain deviated from the standard of care in failing to
investigate the symptoms associated with Cindy's condition and that Bain's negligence
EXHIBIT D
was the sole proximate cause of Cindy's outcome. Judgment was entered in favor of
plaintiffs in an amount to be determined at the trial on the issue of damages.
{¶ 4} At the damages trial, Cindy and her husband of 33 years, plaintiff Howard
"Rau" Adae, Jr., testified as to the nature of Cindy's condition subsequent to the spinal
injury and how it has affected them. According to Cindy, she has no function in her right
foot, little function in her right leg, "pretty good" function in her left leg, weak grip
strength in her hands, she requires catheterizing four or five times a day in order to pass
urine, and she requires digital stimulation of the bowel once or twice a day in order to
pass stool. She noted that she also suffers from occasional muscle spasms in her legs,
and that she takes medication to subdue them when they occur, but that Rau is able to
stop them immediately by applying pressure to her legs. She wears an orthotic brace
on her right foot and ankle which allows her to perform therapeutic walking for a short
time each day, but she is otherwise wheelchair-bound. Notwithstanding her
neurological deficits, Cindy stated that she believes her health is good overall. Though
she was diagnosed with type-1 diabetes as a child, she related that this condition has
remained under control for several years, and she noted that she has a family history of
individuals living to their 80s and 90s.
{J( 5} Cindy stated that she sleeps in a hospital bed in the first-floor living room of
the family's two-story home. Rau testified that at 7:00 a.m. each morning, he assists
Ciridy in getting from the bed to her bedside commode chair. Cindy related that she
wears diapers in order to capture urine that leaks once her bladder has filled, and that
the diapers often become soaked overnight, especially during the periods in which she
takes Lasix, a water pill, to control the bodily swelling that she has suffered on and off
since her injury. Rau stated that when leaks occur, he puts on surgical gloves to clean
and sanitize the affected area, lubricates and inserts a catheter to drain the bladder, and
then removes the catheter and sanitizes the area once more. Cindy stated that she is
unable to catheterize herself.
{¶ 61 Rau testified that on most mornings, he gives Cindy a sponge bath, then
retrieves her clothes and provides some assistance as she dresses. Cindy stated that
she is capable of dressing herself for the most part, but that it requires a great deal of
effort and she tires quickly, particularly when it comes to putting on pants, which takes
several minutes and requires her to rock side to side in her bed. After she is dressed,
Cindy then performs exercises in bed, and Rau stated that he assists her with range of
motion exercises by raising her legs and bending her knees. When this is done, Rau
puts Cindy's orthotic device on her right foot and ankle, which she stated that she
cannot do herself, and he then prepares breakfast and gives Cindy her medications.
Cindy related that they both prepared meals before her injury, but that she is unable to
do so now inasmuch as their kitchen lacks wheelchair accommodations. Rau also
related that Cindy can administer her own medications, including the insulin injections
she takes four times each day for her diabetes, but that he usually administers the first
and last injections because she is fatigued at those times.
11171 Rau stated that after finishing breakfast at about 8:00 a.m., he leaves the
house to work on the family farm, where they raise fruit, field crops, and cattle, and from
late May through the autumn, they operate a retail farm market open to the public. Rau
stated that Cindy worked on the farm with him since 1978, and that before her injury she
performed all manner of jobs, such as bailing hay and pruning trees in the apple
orchard; she also managed the sales room when it was open, including supervising the
part-time seasonal employees: Rau recalled that he and Cindy used to both work on
the farm from about 8:00 a.m. until dusk, year round.
}y'l 8} Cindy explained that after her injury, her role on the farm has been limited
to working a few hours a day when the sales room is open, where she answers
telephones, converses with customers, and supervises the seasonal employees. Rau
stated that Cindy's inability to perform the work that she used to do on the farm has hurt
the business in that much of the work, such as pruning, is not being done, and that this
has had a negative effect on the quality of the produce. He stated that he cannot afford
to hire someone to perform all the work that she used to do, and that it is difficult to find
employees who will work under the tough hours and conditions.
{^l 9} Rau testified that on the days when Cindy can work in the sales room, he
drives her there in a golf cart at about 8:00 a.m., when he leaves the house for work;
otherwise, Cindy stays in the house and can contact him by mobile phone if she needs
assistance, typically after a bladder or bowel accident. Rau stated that at 10:00 a.m.,
he takes a short break to check on Cindy and assist her with a therapeutic standing
exercise, which requires removal of her orthotic brace and getting out of her wheelchair.
Rau further stated that he takes a lunch break at noon, at which time he helps Cindy
onto her commode chair so that he can help empty her bowel, which he does by laying
on the floor, putting on a lubricated glove, and inserting a finger into the rectum to
digitally stimulate the bowel until a movement occurs, which may take up to ten minutes.
Cindy stated that she is unable to perform this task on her own. Rau stated that he then
prepares lunch, and when they are finished, he puts Cindy's orthotic brace back on so
that she can use a walker to therapeutically ambulate for a few minutes around the first
floor of the home.
{¶ 101 According to Rau, he returns to work around 1:30 p.m., and during the
sales season he drives Cindy back to the sales room via golf cart, but outside the sales
season she remains in the house. He stated that he takes a short break at 3:00 p.m. to
check on her if she is in the house, and that at 5:00 p.m., he returns to catheterize her
bladder. He explained that on most evenings, he pushes her wheelchair outdoors and
around the house to the walk-in basement doors so that she can access a shower stall
that he constructed for her there; he related that the original shower is on the second
floor. He noted that during inclement weather, in lieu of going outdoors to access the
basement, he helps her scoot down the stairs. Cindy stated that she is unable to
transfer herself into the shower and requires assistance. According to Rau, when Cindy
is finished, he helps her put on her put on pajamas and then wheels her outside and
back to the first floor, where they have a supper that he prepares. Rau stated that
Cindy gets tired much more easily than she used to, usually retiring to bed around 7:30
p.m., at which time he performs more farm work or household chores such as laundry or
cleaning, which Cindy can no longer perform. He catheterizes her again before he goes
to bed, and may also stimulate another bowel movement at that time.
{¶ 111 Cindy and Rau both testified that the care provided by Rau is necessary,
and that they fear Cindy would have to move to a nursing home if she could no longer
receive that level of care. As for their living arrangements, Rau testified he built ramps
and added the basement shower stall to make their home more accessible for Cindy,
but that he does not believe the house can practically accommodate other items such
as an elevator or first-floor shower, and he noted that he served as the general
contractor for the original construction of the home. He related that instead of
attempting any other modifications to the existing home, he and Cindy would like to
build a handicapped accessible home on the farm property. Cindy testified that she
would also like to have a vehicle equipped for the mobiiity-impaired so that she could
more easily leave the house and regain some independence. She stated that she and
Rau currently leave the house for church every week, for doctor's appointments, and for
an occasional meal at a restaurant, but that she and Rau no longer dine out or travel to
the degree they would like.
{^ 12} Plaintiffs offered expert testimony, by way of deposition, from Carolyn
Miller, M.D., a board-certified neurosurgeon practicing at the Ohio State University
Medical Center. Dr. Miller reviewed Cindy's medical records and saw her for an
examination. Dr. Miller testified that as a result of the spinal cord injury, Cindy has
tetraparesis, or weakness in all four limbs, most pronounced in her legs, including no
function at all in the right foot; reduced grip strength and some lack of sensory ability in
both hands; muscle spasms in her legs; inability to empty her bladder without a catheter
and urine leakage when the bladder becomes filled; and, inability to pass stool without
digital stimulation of the bowel. According to Dr. Miller, Cindy's injuries are
probably permanent and she will thus never be able to functionally ambulate for the rest
of her life, and she will require a caregiver for the rest of her life to assist with tasks such
as catheterizing, changing of diapers and sanitizing after bladder, bowel stimulation and
occasional extraction of hard stool, and therapeutic exercises. Dr. Miller testified that
Cindy should not be left alone for more than a few hours at a time, and that she needs
to have someone available to respond quickly when she has bowel or bladder issues,
particularly because staying sanitary is key to avoiding infections and skin breakdown.
Dr. Miller opined that Cindy's life expectancy is dependent upon the level of care she
receives, and that if she is properly cared for she should have a normal life expectancy.
{gj 13} Defendants offered expert testimony, by way of deposition, from Jeffrey
Strakowski, M.D., a physician at Riverside Methodist Hospital in Columbus who is
board-certified in physical medicine and rehabilitation. (Defendants' Exhibit N.) Dr.
Strakowski, who reviewed Cindy's medical records and performed an independent
medical evaluation of her, testified that her spinal cord injury resulted in an assymetric
incomplete tetraparesis, meaning that she has incomplete motor function in all four
limbs, and that she also has incomplete bowel and bladder function. He related that his
examination demonstrated that Cindy has some weakness in her hands, but that they
remain substantially functional; that she has right leg strength of 2 or 3 on a scale of 5,
as opposed to Dr. Miller's finding of 0/5 strength; that she has left leg strength of 3 or 4
on a scale of 5; and, that she has thoracic back pain and loss of sexual function.
{¶ 14} Dr. Strakowski testified that Cindy requires a caregiver to assist her in
passing urine and stool, and in transferring to and from her wheelchair. Concerning the
need for assistance in emptying the bladder, Dr. Strakowski explained that it is
important to keep Cindy from soiling herself so that she does not develop a skin
infection. Dr. Strakowski acknowledged that the therapeutic walking that Cindy
engages in while wearing her foot and ankle brace is beneficial for both exercising the
lower limbs and avoiding osteoporosis. In Dr. Strakowski's opinion, Cindy needs a
caregiver to perform much of the same kind of assistance that Rau now provides,
particularly in regard to the bowel and bladder issues and transferring to and from the
wheelchair.
J¶ ]5} Defendants also presented expert testimony from Michael Yaffe, M.D.,
who is board-certified in internal medicine and practices in Columbus at the McConnell
Heart Hospital and the Ohio State University Medical Center. Based upon his review of
Cindy's medical records, Dr. Yaffe opined that Cindy has less than a normal life
expectancy as a result of co-morbid conditions, specifically hypertension and diabetes.
He explained that hypertension causes both hypertrophy of the heart muscle and renal
dysfunction, and that Cindy has exhibited a manifestation of hypertrophy inasmuch as
she suffered a flash-pulmonary edema, and has also exhibited symptoms of kidney
disease. He further explained that diabetes may cause damage to organs, especially
the heart, and that most diabetes patients do not reach normal life-expectancy even if
their blood sugar is well-controlled. He acknowledged, though, that Cindy takes
hypertension medication and that her diabetes has been under control for several years.
{¶ ].6} Plaintiffs and defendants both offered testimony from professional life care
planners regarding the costs associated with Cindy's care and well-being. William
Burke, Ph.D., a rehabilitation counselor who develops long-term plans of care for the
disabled and performs vocational assessments, testified for plaintiffs. Burke developed
a life care plan for Cindy based upon his review of her medical records, as well
evaluations that he performed at her home in 2008 and by telephone in 2011.
(Plaintiffs' Exhibit 9A.) Burke's plan places the cost of Cindy's medical care,
medication, medical supplies and equipment, orthotics, therapy, mobility and
transportation equipment, and support services (e.g. a live-in personal care attendant)
at $89,637 annually for the remainder of her life. Burke's plan does not include the cost
of architectural renovations to the existing home or construction of a wheelchair-
accessible new home, but he has been to plaintiffs' home and found that it lacked
appropriate accommodations for Cindy's needs. Burke testified that he coordinates with
contractors and architects to modify and build homes, and that he believes $75,000 is a
reasonable cost estimate for making the appropriate accommodations in a new home.
Burke also opined that as a result of her injuries, Cindy can no longer perform the type
of labor that she once performed on the farm.
{¶ 171 The most significant areas of disagreement between the life care planners
who testified in this case concerns the amount of time that a caregiver will be present
and the compensation of that caregiver. To that end, Burke testified that his
recommendation is for Cindy to have what Rau essentially now serves as, a live-in
caregiver who would be available at all times, but could leave the home for short
periods. Burke stated that the caregiver is needed to perform essentially the same work
that Rau is currently doing, although he acknowledged that Cindy might be able to
perform some meal preparation in a handicapped-accessible kitchen.
{¶ 18} He explained that the primary caregiver would work 260 days a year, and
a back-up caregiver would work 134 days a year while the primary is off-duty. Burke
concluded in his report that in order to hire a quality, trustworthy individual to serve in
this role, which entails the sensitive quasi-medical duties described earlier, an hourly
wage of $12 is appropriate. He stated that the plan offered by defendants' life care
planner, which provides for 40 hours of care per week, is impractical in that it is difficult
to find someone to work that amount of hours spread across seven days a week, that
hiring an agency to provide this care would not be cost-effective, that the plan does not
allow time for the caregiver to buy. groceries or run other errands, and that it would not
allow Cindy to remain at home if Rau were no longer able to care for her.
{¶ 19} Defendants presented the testimony of Dorene Spak, a rehabilitation
counselor who prepares lifecare plans and performs vocational assessments. Based
upon her review of Cindy's medical records, Spak prepared a life care plan.
(Defendants' Exhibit K.) She testified that her plan has much in common with Burke's,
but she noted some differences such as her recommendations of a dietician, a
knee/foot orthotic in place of the ankle/foot orthotic that Cindy currently uses, occasional
psychological counseling for Cindy's depression rather than the ongoing counseling
recommended by Burke, and, most significantly, her recommendation of part-time rather
than full-time care.
{^1 20} Regarding that level of care, Spak stated that Cindy needs assistance with
her bowel and bladder issues, transferring to and from the wheelchair, therapeutic
ambulation, and performing household chores, and that this all amounts to less than six
hours of work per day; she explained that the weekly 40 hours of care called for in her
plan can be allocated throughout the week as needed. She acknowledged that the
need for care can arise at any time, that her plan leaves Cindy without a caregiver other
than Rau most of the time, and that she is unsure how long Cindy could live on her own
if Rau were no longer able to care for her. According to Spak, figures published by the
United States Bureau of Labor Statistics show that a home health aide in southern Ohio
earns an average $9.57 per hour, and in her opinion, this is a reasonable wage for the
caregiver contemplated in her plan.
{¶ 21} Lastly, plaintiffs offered the deposition testimony of David Boyd, Ph.D., an
economist at Denison University. Boyd testified that, based upon generally accepted
economic principles and methodologies, the life care plan prepared by Burke has a
present-day value of $2,452,277, assuming that Cindy enjoys the normal life
expectancy for a Caucasian woman her age, as established by the Bureau of Labor
Statistics, being 82.7 years. Boyd further testified as to Cindy's lost earning capacity for
her work at the family farm, explaining that he used the standard methodology for
individuals such as Cindy who are not paid a wage for their work. He stated that if
Cindy worked 10 hours per day, 5 days per week, prior to her injury, as related in
Burke's life care plan, for 50 weeks per year until age 67, and if the value of such work
is equivalent to the Bureau of Labor Statistics' average hourly wage of $10.43 for
workers and laborers at Ohio farms, nurseries, and greenhouses, then the estimated
present value of her pre-injury earning capacity is $471,031.30. He stated that if after
her injury, Cindy now works an average of 4.5 hours per day, 5 days per week, for 50
weeks per year until age 67, at the same $10.43 hourly wage, the estimated present
value of her post-injury earning capacity is $186,571.57. Finally, he stated that if
Cindy's post-injury earning capacity is subtracted from her pre-injury earning capacity,
this results in a total lost earning capacity of $284,459.73.
ۦ 22} Upon review of the evidence adduced at trial, the court finds that the life
care plan prepared by Burke more accurately reflects the care that Cindy requires in
order to lead a quality life than does the plan prepared by Spak. Drs. Miller and
Strakowski offered substantially similar descriptions of the nature, extent, and
permanency of Cindy's injuries. The life care plans offered by Burke and Spak have
much in common as well, differing most significantly in terms of the hours and wages
associated with the caregiver that each of them agrees is needed. The court finds that
the type of care that Cindy needs is essentially the care that Rau currently provides,
including several bladder catheterizations daily, cleanup and sanitization of bladder
accidents at any time of the day, bowel stimulations once or twice daily, therapeutic
exercise, massaging of leg spasms at any time of the day, attiring, placement of the
right ankle brace, transfers to and from the wheelchair, and various household tasks.
The need for such care is spread throughout the day, can arise at anytime, and requires
that someone be available to quickly respond at all times. The importance of minimizing
the exposure of urine to Cindy's skin is undisputed; under Rau's care, she has not been
forced to remain in urine-soaked diapers or bedsheets, and she should not have to do
so if he were no longer around.
€^, 23} Although defendants argue that Burke's opinion on an appropriate wage
for the caregiver is inadmissible because Burke stated that he relied in part upon data
furnished by the Mid-Ohio Independent Living Center, which was not admitted into
evidence, his opinion is indeed admissible in that it is based upon his perception that
$12.00 an hour is reasonable. See Evid.R. 703; R.C. 2317.36. Further, Burke and
Spak both used similar methodology in gathering data for the preparation of their
reports.
{¶ 24} Boyd's testimony establishes that the present value of the life care plan
developed by Burke is $89,637 annually for the remainder of Cindy's life. The court
finds that plaintiffs have demonstrated that the most reasonable estimate of Cindy's life
expectancy is the Bureau of Labor Statistics' figure of 82.7 years. Dr. Miller credibly
stated that if Cindy continues to receive appropriate care, she should have a normal life
expectancy, and the court finds Dr. Miller's opinion on this issue to be more persuasive
than Dr. Yaffe's. Thus, as set forth in Boyd's calculations, the present value of Cindy's
life care plan for the period from 2011 to 2038 is $2,452,277.11. (Plaintiffs' Exhibit 11.)
111251 Related to the life care plan, the court also finds that plaintiffs are entitled
to damages in the amount of $75,000 for the cost of either incorporating handicapped
accessible features into the construction of a new home or modifying their existing
home. Burke testified that this was a reasonable figure for such work, based upon his
experience working with contractors to perform this type of work, and the court finds his
testimony to be credible.
{^1 26} It is clear that Cindy's injuries will prevent her from ever performing the
type of farm work that she once performed, and she will be limited to the type of
customer service role that she now fulfills in the farm market. Based upon the totality of
the evidence, the court finds that Cindy has a reduced earning capacity as a result of
her injury, and based upon Boyd's calculations, the value of her resultant lost income is
$284,459.73. Moreover, the court finds that plaintiffs are each entitled to damages for
pain and suffering in the amount of $250,000.
{^,; 27} The court notes that at the time of trial, the parties contemplated that any
award of damages would be reduced, pursuant to R.C. 3345.40(B)(2), by the amount of
a settlement that plaintiffs reached with Clinton Memorial Hospital. R.C. 3345.40(B)(2)
provides that any award against a state university or college shall be reduced by the
amount of °benefits" a plaintiff receives or is entitled to receive "for injuries or loss
allegedly incurred from a policy or policies of insurance or any other source * * *."
However, in a recent decision, the Tenth District Court of Appeals determined that the
word "benefits," as it appears in R.C. 3345.40(B)(2), refers to "`[f]inancial assistance
received in time of sickness, disability, unemployment, etc., either from insurance or
public programs, such as social security."` See Aubry v. Univ. of Toledo Med. Ctr., 10th
Dist. No. 11AP-509, 2012-Ohio-1313, ¶22, quoting Black's Law Dictionary 158 (6th
Ed.1990). In the instant case, inasmuch as plaintiffs' settlement with Clinton Memorial
Hospital does not constitute a benefit under the definition set forth in Aubry, the court
concludes that the statute does not operate to reduce plaintiffs' award by the amount of
that settlement.
{¶ 28} In light of the foregoing, the court finds that plaintiffs are entitled to recover
total damages in the amount of $3,311,761.84, which includes the $25 filing fee paid by
plaintiffs. Accordingly, judgment shall be entered in that amount.
^ ^..
CYNTHIA A. ADAE, et a!.
Plaintiffs
V.
Court of Claims of OhioThe Ohio Judicial Center
65 South Front Street, Third FloorColumbus, OH 43215
614.387.9800 or 1.800.824.8263www.cco.state.oh.us
UNIVERSITY OF CINCINNATI, et al.
Defendants
Case No. 2007-08228
Judge Alan C. Travis
JUDGMENT ENTRY
{¶ 29} This case was tried to the court on the issue of plaintiffs' damages. 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 in the amount of
$3,311„761.84, which includes the $25 filing fee paid by plaintiffs. Court costs are
assessed against defendants. The clerk shall serve upon all parties notice of this
judgment and its date of entry upon the journal.
ALAN C. TRAVISJudge
cc:
Anne B. StraitNaomi H. MaletzAssistant Attorneys General150 East Gay Street, 18th FloorColumbus, Ohio 43215-3130
Michael R. Thomas4 Sycamore Creek DriveSpringboro, Ohio 45066
Kenneth S. BlumenthalMichael J. Rourke495 South High Street, Suite 450Columbus, Ohio 43215
001Filed April 6, 2012To S.C. reporter August 24„2012
4'
^lL^^ ^^ kCOUR; ^X .a: Court of Claims of Ohiooi' of'110 The Ohio Judicial Center
65 South Front Street, Third FloorColumbus, OH 43215
2011 JUN - I AM 9 : 59 614.387.9800 or 1.800.824.8263www.cco.state.oh.us
CYNTHIA A. ADAE, et al.
Plaintiffs
Case No. 2007-08228
Judge Alan C. Travis
V.
UNIVERSITY OF CINCINNATI, et ai.
Defendants
DECISION
Plaintiff, Cynthia Adae,' brought this action against defendants, the University of
Cincinnati (UC) and Clinton Memorial Hospital Regional Health System (CMH),2 alleging
a claim of medical malpractice. Plaintiff's spouse, Howard Adae, asserted a claim for loss
of consortium. The issues of liability and damages were bifurcated and the case
proceeded to trial on the issue of liability.
in late June or early July 2006, plaintiff developed a spinal epidural abscess, a rare,
infectious disease process which, if left untreated, results in neurological deficits,
progressive paraplegia and death. Plaintiff alleges that a UC physician, Jennifer Bain,
M.D., was negligent in failing to diagnose the disease. As a result of the delay in
diagnosis, plaintiff was rendered an incomplete paraplegic and has suffered loss of both
her bowel and bladder functions. Mr. Adae testified that he assists plaintiff with her
medical needs and disabilities on a day-to-day basis. Based upon the testimony and other
evidence presented, the chronology of events that gave rise to plaintiff's claim is as follows.
On Tuesday, June 27, 2006, afiterworking into the early evening hours at herfamify-
owned fruit farm, plaintiff began to experience symptoms which she attributed to possible
'References to "plainifE" in this decision are to Cynthia Adae.
2UC operates a Family Medicine Residency Program at the privately-owned CMH facilities locatedin Wilmington, Ohio. UC faculty serve as attending physicians for the residency program. References to"defendant" in this decision are to UC.
EXHIBIT E
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heat stroke, Later that day, plaintiff used a home thermometer to take her temperature;
she obtained a reading of 104 degrees.
On Wednesday, June 28, 2006, plaintiff began to experience intense pain in her
back and chest. The pain intensified and she felt more ill as the day progressed. That
evening, plaintiff went to the CMH After Hours Care Clinic where she was seen by Anne
Phelan Adams, M.D. According to Dr. Adams' Care Record (Joint Exhibit 1, Volume 1, Tab
4), plaintiffs chief complaintwas chest pain, sometimes radiating into her left shoulder and
arm, which she reported to have experienced intermittently for two days. Plaintiff s blood
pressure was recorded as 200/100 with a heart rate of 128. Dr. Adams concluded that
plaintiff was at high risk for Acute Coronary Syndrome (ACS) and transferred her to the
hospital's emergency room for further evaluation.
Plaintiff arrived at the CMH emergency room at 10:15 p.m., where she was seen by
David C. Lee, M.D. According to Dr. Lee's Emergency Services Record (Joint Exhibit 1,
Volume 1, Tab 5), plaintiff stated that her chest pain had occurred intermittentiyfor a period
of two or three weeks, that her pain sometimes started in her back and sometimes started
in her chest area, that the pain at times increased with deep breathing, and that the pain
at times radiated down her left arm. Plaintiff further stated that she had a fever, "felt hot,"
and that her maximum temperature had been 103 to 104 degrees. Dr. Lee noted that
plaintiff's temperature at the time was 99.3 degrees, that she had a heart rate of 140, and
that both her blood pressure and blood sugar levels were elevated. She was given aspirin
and various other medications, and a series of diagnostic tests were performed. Dr. Lee
also ordered blood cultures. He had plaintiff admitted to the hospital for further observation
and testing to rule out myocardial infarction and ACS. Dr. Lee also listed an "infectious
etiology" in his differential diagnoses which included pneumonia and endocarditis.
On Thursday, June 29, 2006; at 3:00 a.m., plaintiff arrived at her CMH patient floor
and was seen by Maisha Pesante, M.D.,3 a first-year resident in the UC Family Medicine
3 Dr. Pesante was an employee of CMH.
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Case No. 2007-08228 - 3- DECISION
Program. According to Dr. Pesante's history and physical examination, plaintiffs chief
complaint was severe chest and back pain. (Plaintiffs' Exhibit IA.) Plaintiff told
Dr. Pesante that she had been in pain for approximately two days, that her pain level was
an eight on a scale of ten, that the pain was located primarily in the area below her left
shoulder blade, and that it radiated to her chest. Plaintiff also stated that the chest pain
was sharp, waxing and waning, and that it was worse with certain positions such as leaning
to the left or lying down. She further related that she had a fever of 104 degrees for two
days, that decongestant improved her symptoms, that she felt better when sitting up, and
that she could not lie down. Dr. Pesante noted that plaintiffs pain limited her ability to
move her arms, and that plaintiff experienced pain when moving her chin to her chest.
Plaintiffs blood pressure at the time was 208/86, she had a heart rate of 145, and her
temperature was 99.2.
In her differential diagnoses and treatment plan, Dr. Pesante first listed ruling out
ACS, including "angina versus thyroid abnormality versus Gi versus musculoskeletal
versus viral meningitis." (Plaintiffs' Exhibit IA.) The remainder of the plan was directed
to plaintiff's diabetes and hypertension issues. Although itwas not stated in the history and
exam notes, Dr. Pesante testified in her deposition that she was aware that blood cultures
had been ordered in the emergency department and that the results were pending.
(Defendants' Exhibit D.)
Later in the morning of June 29, Dr. Bain came on duty as attending physician.
Dr. Bain testified that the normal protocol for CMH staff was to meet with the residents who
had been on duty, discuss their cases, review the patients' emergency room and After
Hours Care records, if any, and then begin making rounds. During rounds, Dr. Bain
performed her own history and physical exam of patients. In her Progress Note (Plaintiffs'
Exhibit 1 E), Dr. Bain noted that plaintiff had reported a two-day history of chest and back
pain rated a level eight on a scale of ten, that the pain was "substernal and actually pain
below the shoulder blades [and] radiated anteriorly to the substernal area." She further
noted that the pain was reported to be worse when lying down, that plaintiff felt better
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Case No. 2007-08228 - 4- DECISION
sitting up straight, and that aspirin had helped to relieve her pain. Dr. Bain noted that
plaintiff had a fever for two days prior to admission that had reached 104 degrees at its
highest. Upon examination, she found that plaintiffs systolic blood pressure was down
from 208 to the 160s, and that her pulse had dropped from 145 to 100. She reported that
plaintiff was "afebrile" (without fever) and that "[s]he has been afebrile." She also reported
that plaintiff was "lying in bed although propped up comfortably," but noted that plaintiff
flinched with some movements. Plaintiff told her that her pain was somewhat better.
Dr. Bain recorded that plaintiffs lungs were clear but that she was not taking any deep
breaths because of the pain she was experiencing. She found that plaintiff had some pain
with complete flexion of her neck, although she otherwise had a good range of motion.
In evaluating plaintiff s presenting symptoms, Dr. Bain recorded that ACS had been
ruled out, that plaintiffs blood tests were normal, with the exception of her elevated blood
sugar level, and that her cardiac enzymes were normal, as was her EKG. Dr. Bain further
recorded that the treatment team suspected that plaintiffs chest pain was musculoskeletal,
but that a CT scan of her chest would be ordered to rule out the possibility of an aneurysm.
(The results of the scan revealed no abnormalities.) Dr. Bain ordered additional lab work
and a CT scan of plaintiffs abdomen to evaluate her liver and gall bladder, and additional
thyroid testing to be performed on an outpatient basis. No further action was taken with
regard to the infectious process that was at issue. Piaintiff's blood cultures were negative
at the time. Plaintiff was discharged at approximately 5:00 that afternoon with instructions
to follow up within the next week with Leah Avera, M.D., her primary care physician.
On Saturday, July 1, 2006, Mr. Adae telephoned Dr. Avera. He told her about
plaintiffs hospitalization, and related that she continued to experience back pain.
According to Dr. Avera, he also commented to the effect that plaintiff "may have had a
temperature." Dr. Avera recommended that he take plaintiff to the Middletown Regional
Hospital emergency room (MRH) forfurther evaluation. (Deposition, Page 14, Lines 8-13.)
That afternoon, plaintiff went to MRH and was seen by Tao Nguyen, M.D.
According to Dr. Nguyen's Medical Record (Joint Exhibit 1, Volume 1, Tab 6), plaintiffs
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chief complaint at that time was right shoulder and back pain, which had been "ongoing for
five days." She also reported that she could not lie down because it was too painful to do
so. In addition to various other tests, Dr. Nguyen ordered a CT scan of plaintiffs chest,
which produced a negative result for pulmonary embolism. Further, although it was not
ordered by Dr. Nguyen, a CT scan was taken of plaintiffs head; that test revealed a sinus
infection. Dr. Nguyen called CMH in an attempt to get copies of plaintiff's medical records,
but learned that the records department was closed until Monday. He called Dr. Avera
and discussed the case with her. Plaintiff was discharged with prescriptions for antibiotics
to treat the sinus infection and Percocet for pain; she was instructed to see Dr. Avera on
Monday, July 3.
Also on Saturday, July 1, a call was made from the CMH laboratory to Geetha
Ambalavanan, M.D., the resident on duty that day. The lab reported that plaintiffs blood
cultures were showing "gram positive cocci in clusters." The next day, July 2, the lab called
Dr. Pesante to report that the cultures were positive for staphylococcus aureus.4 Neither
Dr. Ambalavanan nor Dr. Pesante contacted either Dr. Bain or Dr. Gick, who was the UC
attending physician on call for that weekend. It is unclear whether either resident, or any
other CMH staff, attempted to contact plaintiff or Dr. Avera. According to Dr. Avera, if she
had learned of the positive results, she would have immediately had plaintiff admitted to
the hospital. She stated that she would have "empirically5 started her on antibiotics and
then attempted to find the source of the infection." (Deposition, Page 26, Lines 16-19.)
On Monday, July 3, 2006, plaintiff called Dr. Avera's office to schedule an
appointment. She testified that she was told that Dr. Avera did not have any openings in
her schedule that day, so she made an appointment for Wednesday, July 5. She spent
the day at home.
¢Staphyfococcus aureus was described as a type of bacteriai infection.
5 Empiric therapy was described as that which is initiated prior to determination of a firm diagnosis.For example, such therapy could involve use of broad-spectrum antibiotics before identifying the specificorganism that is causing an infection.
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Case No. 2007-08228 - 6- DECISION
Tuesday, July 4, 2006, plaintiff again spent the day at home. That evening, she
began to a experience flu-like symptoms, numbness and weakness in her extremities, she
fell at least once, dropped things several times, and had some slurred speech.
On Wednesday, July 5, 2006, plaintiff went to Dr. Avera's office as scheduled. At
that point, she could barely walk. Plaintiff testified that Mr. Adae carried her to the car and
then into the office when they arrived. Upon examination, Dr. Avera noted that plaintiffs
blood sugar was extremely elevated. She also noted that plaintiff had been "somewhat
non-compliant" with her check-ups, that her "labs were not checked regularly" and that she
"se€f-adjust[ed] her insulin doses." (Defendants' Exhibit F-1.) Dr. Avera felt that plaintiff
was suffering from diabetic ketoacidosis, and immediately sent her to MRH for admission.
(Deposition, Pages 38-41, Lines 20-13.)
At MRH, plaintifPs symptoms progressed to paralysis of her lower extremities, and
the spinal epidural abscess was ultimately diagnosed. She underwent neurosurgery on
July 6, 2006, and remained hospitalized until July 18, 2006; she has been disabled since
that time. Plaintiff contends that Dr. Bain was negligent in failing to order appropriate
testing to determine the cause of her back and neck pain, in ignoring her self-reported
104 degree temperature, and in discharging her from the hospital before obtaining the
results of the blood cultures that would have positively identified an infectious process.
Plaintiff contends that Dr. Bain's negligence is the sole proximate cause of her injury.
In order to prevail on a claim of medical ma€practice or professional negligence,
plaintiffs must first prove: 1) the standard of care recognized by the medical community;
2) the failure of defendant to meet the requisite standard of care; and 3) a direct causal
connection between the medically negligent act and the injury sustained. INheeler v. Wise
(1999), 133 Ohio App.3d 564; Bruni v. Tatsumi (1976), 46 Ohio St.2d 127. The
appropriate standard of care must be proven by expert testimony. Bruni, at 130. That
expert testimony must explain what a medical professional of ordinary skill, care, and
diligence in the same medical specialty would do in similar circumstances. €d.
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Plaintiffs presented the testimony of three experts. The first to testify, by way of
videotaped deposition, was Finley W. Brown, Jr., M.D., a board-certified family physician.
Dr. Brown opined that Dr. Bain did not meet the standard of care in her treatment of
plaintiff's complaints of fever and back pain.6 He testified quite emphatically and
repeatedly that "fever arad back pain is spinal epidural abscess until proven otherwise and
has to be worked up and ruled out" because of the potential for catastrophic
consequences. He criticized Dr. Bain's treatment because she did not do any specific
workup as to the cause of plaintiff's back pain, and never tried to determine why plaintiff
could not lie flat. Although plaintiff s complaints had varied as to the location of her pain,
Dr. Brown noted that the back pain was substantiated in both the medical records and the
nursing notes. He pointed out that in the nursing notes for 4:00 a.m. and 4:15 a.m. on
June 29, it was stated that plaintiff complained of upper mid-back pain, and that from
7:05 a.m. to 3:40 p.m. there were five separate notations of complaints of "mid upper-back
pain."
With regard to plaintiffs self-reported fever, Dr. Brown testified that it was a"serious
issue" because the fever had been present for a number of days and it was up to
104 degrees in the days before she presented to the emergency room. He stated that the
fever "indicated more likely than not infectious disease and required [a] detailed workup
and evaluation to find the source of the infection, diagnose it, and treat it." (Deposition,
Page 14, Lines 19-24 and Page 15, Lines 1-2.) Dr. Brown explained that "[a]n infectious
process usually invo€ves, if it's significant, the body responding to the infection by
increasing the numberofwhite cells that are involved in fighting the infection [and] gobbling
up the bacteria" to get rid of it. (Deposition, Page 22, Lines 3-8.) He noted that plaintiff
had an elevated white blood cell count at CMH which, he explained, "certainly strongly
suggests * * * an infectious disease." (Deposition, Page 22, Lines 9-11.) He also noted
6 9t is undisputed that Dr. Bain's treatrnent and care of pla"sntiff's cardiac and diabetic symptoniscomplied with the appficable standard of care.
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that plaintiff's blood count showed other abnormalities which were consistent with an acute,
aggressive response to an infectious process. Further, Dr. Brown noted that plaintiff's
blood sugar was elevated, an indication that she was under poor diabetic control.
Dr. Brown explained that diabetics are known to have an impaired immune response and
do not fight infection as well as non-diabetics. He also noted that, six hours before her
discharge from the hospital, plaintiffs pulse rate, respirations, and blood pressure were
elevated, all of which were consistent with a patient having an infectious process. He
testified that "the answer to all these issues, the cause of her back pain, the cause of her
fever, where her infection was * * * the high blood sugars, none of those were resolved and
[pfaintiff] was still uncomfortable * * * still ill." (Deposition, Page 27, Lines 2-9.)
Based upon the foregoing, Dr. Brown further opined that "plaintiff should never have
been discharged from [CMN] until the [b(ood] cultures came back especially considering
how ill she was at discharge," (Deposition, Page 14, Lines 6-10.) He stated that "if the
physicians taking care of her kept her in the hospital and practiced in a reasonable way,
practiced a reasonable level of medicine, what they would have done is recognized that
this back painwas not diagnosed and called in a neurologist and an orthopedist who would
have ordered imaging studies and the diagnosis of epidural abscess would have been
made." (Deposition, Page 29, Lines 3-10.) It was his opinion that if plaintiff had been in
the hospital on July 1, when the gram stain positive culture came back, the lab would have
called her floor, the proper physician(s) would have been notified, and plaintiff would have
had "the best chance to avoid the [permanent] neurologic injuries that she has."
(Deposition, Page 30, Lines 12-14.) It was further Dr. Brown's opinion that Dr. Bain was
at least 90 percent responsible for plaintiff's outcome.
The court notes that Dr. Brown acknowledged that spinal epidural abscess is an
uncommon condition, and that he could not recall having diagnosed it in any of his patients
during his 40 years in practice. However, he insisted quite credibly that "100 percent of
patients of mine who present with fever and back pain have epidural abscess until proven
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otherwise, so I've done the workup, I've thought they might have that, and I've made the
effort to rule it out." (Deposition, Page 10, Line 24 and Page 11, Lines 1-4.)
Plaintiffs next presented the videotaped testimony of C. Keith Beck, M.D., who is
board-certified in both internal medicine and infectious disease. Dr. Beck also opined that
Dr. Bain failed to meet the standard of care in her treatment of plaintiffs fever and back
pain. Dr. Beck noted that plaintiff was "a middle-aged woman with a long history of
diabetes. She presented with an obvious infectious syndrome. When a middle-aged
person with diabetes has an infection with the constellation she presented, it is highly likely
that she has a bacterial infection requiring specific therapy." (Deposition, Page 15, Lines 4-
9.) Dr. Beck testified that, as such, it was "mandatory" for Dr. Bain "to recognize the high
potential for morbidity" and to do two things: 1) provide empiric therapy to treat the
bacterial infection and; 2) make a diagnosis of what was causing the infection. Dr. Beck
opined that Dr. Bain failed in both of those respects.
In explaining what he meant by "an obvious infectious syndrome," Dr. Beck testified
that plaintiff "had what we call a systemic inflammatory response syndrome. She gave a
history of fever prior to admission. She had tachycardia and an elevated respiratory rate,
which are components of inflammatory response. She also had an elevated white blood
count ***. And she had localizing symptoms pointing to the back and neck which were
of a severe nature." (Deposition, Page 16, Lines 8-9 and 0-4.) He further explained that,
"all of these things combined, as well as some ancillary laboratory tests which were the
result of an inflammatory process, made it highly likely that she had a bacterial infection
at the time of presentment and at the time of discharge from CMH." (Deposition, Page 16,
Line 5 and Page 17, Lines 1-4.) Dr. Beck testified that plaintiffs back and neck pain were
also significant evidence of an infectious syndrome. Dr. Beck was critical of Dr. Bain
because she did not take any steps to determine the source of plaintiff's infection.
According to Dr. Beck, the appropriate diagnostic steps under the circumstances
would have included an NiR! of plaintiffs neck and spine and that, if such a workup had
been done, plaintiff would have been in the hospital when her blood cultures came back
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Case No. 2007-08228 - 10 - DECISION
positive. (Deposition, Page 18, Lines 1-9 and 0-4.) Dr. Beck testified that a 104 degree
temperature just before presentment to the hospital was very significant for an adult and
"overwhelmingly" indicated a high likelihood of bacterial infection. (Deposition, Page 19,
Lines 1-2.) Dr. Beck stated that a fever of that nature was "crying out for both empiric
therapy to protect [from] further damage and * * * mandat[ed] a diagnostic effort to reveal
the cause of the fever so that specific therapy and resolution of the process" could be
assured. (Deposition, Page 20, Lines 7-9 and 0-2.) It was Dr. Beck's opinion that if
treatment had been appropriately rendered, plaintiffs spinal abscess would have been
discovered before it caused permanent neurological damage.
Finally, Dr. Beck opined that Dr. Bain was "overwhelmingly" responsible for plaintiff's
outcome. He explained that "[i]n the teaching hospital situation, the attending physician
of record is medically, legally and morally responsible for the conduct of the residents and
* * * [b]y looking at the medical records and the depositions in this case, Dr. Bane [sic] had
adequate information and access to adequate information such that she should have
guided the course to meet the standard of care. That is the paramount role of the
attending physician. And in this case, she did not meet that standard of care. Had her
actions as the physician of record for this patient met the standard of care, the patient
would have remained in the hospital on appropriate antibiotics, and the issue of a call back
for blood cultures would be really a moot point because it never would have happened."
(Deposition, Page 32, Lines 6-9 and Page 33, Lines 2-9, 0-7.)
With respect to any physicians who treated plaintiff after her release from CMH,
Dr. Beck reiterated that "their interactions would not have happened had Dr. Bane [sic] met
the standard of care. So virtually all of the responsibility, in terms of preventing the bad
outcome, had the standard of care been met at [CMH], all the rest is a moot point."
(Deposition, Page 34, Lines 3-8.)
Plaintiffs' third expert was Carole Ann Miller, M.D., a board-certified neurosurgeon.
Although Dr. Miller offered her opinion regarding the standard of care of a reasonable
clinician, she did not offer opinions with respect to the standard for family practitioners.
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According to Dr. Miller, a reasonable clinician faced with a patient exhibiting plaintiffs
constellation of symptoms would have, after first ruling out the acute cardiac issues,
proceeded to work up the infectious syndrome and determine its cause. She noted that,
although plaintiffs fever at CMH decreased from the self-reported 104 degrees, she had
also been taking aspirin and was given aspirin in the emergency department that would
have masked the fever. She also noted that plaintiffs white blood cell count increased
while she was at CMH, a factor that would also signify infection. Dr. Miller testified that
plaintiff's expression of her pain, radiating from her shoulder to her chest, is a typical
description of epidural abscess; she did not believe that it was consistent with pain
experienced from the type of farm work that plaintiff had been doing. Moreover, Dr. Miller
pointed out that the nurses' notes described exactly where plaintifPs back pain was and,
indeed, that location was where the abscess was ultimately found. She testified that she
had not found any description in the CMH records that Dr. Bain performed a physical
examination focused on the cause of plaintiffs back pain. She opined that, if an MRI had
been performed on pfaintiff s spine at CMH, it would have shown an abnormalitythat would
have led to the diagnosis of spinal epidural abscess. According to Dr. Miller, if a proper
workup had been performed and empiric antibiotic therapy commenced, the infection could
have been eliminated before it had caused irreparable neurological harm.
In response to plaintiffs' evidence, defendants presented the testimony of Dr. Bain,
the deposition testimony of Drs. Pesante, Ambalavanan, Gick, Nguyen, and Avera, and the
videotaped deposition of their expert, Terrance L. Baker, M.D.
Dr. Bakerwas board-certified in family practice, geriatrics, and emergency medicine.
He opined that Dr. Bain complied with all applicable standards of care. He stated that her
history and physical examination of plaintiff complied with the standard of care, as did her
discharge diagnoses. (Deposition, Page 22, Lines 2-4.) Dr. Baker related that, in his
experience and medical practice, he sees one or two cases of spinal epidural abscess per
year. He testified that because of its rarity, epidural abscess "is not a condition that many
family doctors actually see in the course of their practice." (Deposition, Page 14, Lines 14-
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15.) Dr. Baker further related that it is "not unusual for multiple practitioners, multiple
health care providers to actually see the patient, examine the patient, [and] believe that the
patient's signs and symptoms are musculoskeletal in nature, which is exactly what
occurred in * * * the case of [plaintiff]." (Deposition, Page 14, Lines 17-21.) It was his
opinion that the diagnosis is typically not made until the patient "develops focal sensory or
motor symptoms of some sort which then suggest to the practitioner that [there is]
something going on either in the brain or in the spinal cord and that [requires] advanced
testing." (Deposition, Page 15, Lines 4-7.) He furthertestifred that he did not believe that
there were any "classic" symptoms of spinal epidural abscess.
Dr. Baker testified that plaintiff's complaints that she could not lie flat were not
significant, and that "in and of itself' such complaints were not an indication that further
investigation was required. (Deposition, Page 29, Lines 5-7,) He stated that "[ijn patients
such as [plaintiff] who work on a farm and who are regularly involved in * * * performing
farm activities * * * it would not be unusual to have musculoskeletal pain of this type and
we see it all the time and * * * it is not * * * itself reflective of anything more serious than
what it is." (Deposition, Page 28, Lines 18-21 and Page 29, Lines 1-3.) Dr. Baker was
further of the opinion that neither plaintiff's elevated heart rate nor blood sugar level, nor
her self-reported temperature of 104 degrees, were symptoms that should have led to a
diagnosis of spinal epidural abscess while she was hospitalized at CMH. Similarly, he did
not believe that plaintiff's elevated white blood cell count signified an infectious process,
but rather, that it "simply implies that there is a stress being applied to the body."
(Deposition, Page 40, Lines 8-12.)
Finally, Dr. Baker testified that the standard of care did not require that plaintiff
remain at CMH until her blood culture results were known; that an MRI be performed on
her neck and back; or that empiric antibiotics be initiated. With respect to those issues, he
opined that blood cultures can take four to five days to process and that it would not be
economically feasible to remain hospitalized for that purpose. He explained that, in 2006,
an MRI was a highly advanced testing device that was utilized only for specific medical
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symptoms which were not present in plaintiffs case. He described the use of empiric
antibiotics as akin to "shotgunning, sort of shooting from the hip **^just hoping you hit
something." (Deposition, Page 62, Lines 6-9.)
Upon review of all the evidence presented, the court finds that Dr. Bain failed to
meet the standard of care in her treatment of plaintiff's fever and back pain. The court
further finds that Dr. Bain's negligence is the sole proximate cause of piaintiff's outcome.
The court is persuaded by plaintiffs' experts that Dr. Bain could have discovered the spinal
epidural abscess had she taken appropriate steps to do so. Of particularly persuasive
value was Dr. Brown's emphatic testimony that fever and back pain constitute spinal
epidural abscess until proven otherwise, and that a diagnosis was mandated. Equally
persuasive was Dr. Beck's testimony regarding plaintiff's obvious infectious syndrome, and
the appropriate diagnostic steps under the circumstances. It is evident to the court that
Dr. Bain did not do an appropriate workup of plaintiffs fever and back pain.
In both her June 29 Progress Note and during her trial testimony, Dr. Bain
acknowledged that she was aware that plaintiff had reported a fever for two days prior to
admission that had reached 104 degrees. Although she recorded that plaintiff was afebrile
at the time, she acknowledged that plaintiff had been taking aspirin. She acknowledged
that plaintiffs white blood cell count was elevated but attributed it to the stress of the
procedures she had undergone during her hospitalization; she did not include it as a
consideration in her Progress Note. Dr. Bain also knew that plaintiff was diabetic, that her
blood sugar was not under control, and that uncontrolled blood sugar compromises the
immune system. Dr. Bain further acknowledged that she would have known that blood
cultures had been ordered, and that the results were pending. Nevertheless, Dr. Bain
made no reference to the pending blood cultures prior to approving plaintiff s discharge on
June 29.
In addition, Dr. Bain acknowledged thatfever and back pain are symptoms of spinal
epidural abscess. She was aware that plaintiff had a two-day history of severe back and
chest pain that worsened if she was lying down, that she flinched with certain movements,
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that she had pain with flexion of her neck, and that she was not taking deep breaths
because of her pain. Dr. Bain acknowledged that an MRI would have provided a definitive
diagnosis. She attributed the complaints of back and neck pain, in large part, to
musculoskeletal stress based upon plaintiffs history of farm work. Dr. Bain's discharge
diagnosis was musculoskeletal pain of unknown etiology. In the court's view, her lack of
concern for the issues of fever and back pain is further evidenced by her instruction to
plaintiff that she need only to follow up on those issues with Dr. Avera within the next seven
days.
Although Dr. Baker supported Dr. Bain's care and treatment of plaintiff, the court
finds that his testimony was outweighed by the testimony of plaintiffs' experts. Specifically,
Dr. Baker's opinions that there are no classic symptoms of spinal epidural abscess, and
that the majority of patients are not diagnosed with it until after they exhibit neurological
damage, were not persuasive and were directiy contradicted by Drs. Brown, Beck, and
Miller. Dr. Baker acknowledged that an infectious process was included in Dr. Bain's
differential diagnosis, and that plaintiff's uncontrolled diabetes impacted her immune
system and ability to combat infection. He also acknowledged that there was no workup
of plaintiffs back pain or any response to her abnormal white blood cell counte When
asked to assume that the nurses' notes were true, and that plaintiff consistently
complained of upper mid-back pain, Dr. Baker acknowledged that a reasonably prudent
clinician should have made a determination as to where the pain was specifically located
and why plaintiff could not lie flat; Finally, Dr. Baker acknowledged that if plaintiffs spinal
epidural abscess had been recognized and treated before she started experiencing
sensory and neurological deficits, it was more probable than not that she would have
survived the disease without any permanent damage.
The court acknowiedges that the opinions differ on whether Dr. Bain's care of
plaintiff fell below the standard of care in the medical community. However, this is not a
case of employing simple hindsight to prove plaintiffs' case, as argued by defendants. The
testimony and opinions of piaintiffs' experts was unequivocal that, because of the potential
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for catastrophic injury or death when presented with symptoms such as plaintiffs, the
standard of care mandates that a physician rule out infectious process and epidural
abscess. Failure to do so is a deviation froin the standard of care. The court is persuaded
that Dr. Bain failed to address all parts of the differential diagnosis which was clearly a part
of the care and treatment required for her patient. That failure was a deviation from the
staridard of care and directly and proximately resulted in injury to plaintiff.
Accordingly, the court finds that plaintiffs proved their claim by a preponderance of
the evidence.
At the close of the proceedings, plaintiffs moved the court for a directed verdict,
pursuant Civ.R. 50(A), as to the apportionment of liability to non-parties under
R.C. 2307.22. For the reasons set forth above, the motion is DENIED as moot.
1 n summary, plaintiffs have proven that they are entitled to relief and judgment shall
be entered in their favor.
Court of Claims of OhioC, (')(jR 6 u^ The Ohio Judicial Center
OF OHIO 65 South Front Street, Third FloorColumbus, OH 43215
614.387.9800 or 1.800.824.82639' 59 waww.cco.state.oh.us
CYNTHIA A. ADAE, et ai.
Plaintiffs
V.
Case No. 2007-08228
Judge Alan C. Travis
JUDGMENT ENTRY
UNIVERSITY OF CINCINNATI, et af.
Defendants
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 case will be set for trial on the issue of
damages.
0ARNN^CTRAVIS-Judge
cc:
Anne B. StraitNaomi H. MaletzAssistant Attorneys General150 East Gay Street, 18th FloorColumbus, Ohio 43215-3130
Kenneth S. BlumenthalMichael J. Rourke495 South High Street, Suite 450Columbus, Ohio 43215
Michael R. Thomas4 Sycamore Creek DriveSpringboro, Ohio 45066
LHim,a
1c^^^ ..^^rwf „7P
ORC Ann. 3345.40
§ 3345.40. Damages awar•dable foi- wrongful death or injury to person or property
(A) As used in Yhissection:
Code.(1) "State uriiversity or college" has the same meaning as in division (A)(1) of section 3345.12 of the Revised
(2) (a) "The actual loss of the person who is awarded the damages" includes all of the following:
(i) All wages, salaries, or othercompensation lost by an injured person as a result of the injury, includingwages, salaries, or other compensation lost as of the date of ajudgment and future expected lost eaniings of the injtnedperson;
(ii) All expenditures of an injured person or of another person on behalf of an injured person for medicalcare or treatment, for rehabilitation services, or for other care, treatment, services, products, or accommodations thatwere necessary because of the injury;
(iii) All expenditures to be incurred in the future, as determined by the court, by an injured person or byanother person on behalf of an injured person for medical care or treatment, for rehabilitation services, or for other care,treatment, services, products, or accommodations that will be necessary because of the injury;
(iv) All expenditures of a person whose property was injur-ed or destroyed, or of anotlier person on behalfof suclZ a person, in order to repair or replace the property that was injured or destroyed;
(v) All expenditures of an injured person, of a person wbose property was injured or destroyed, or of an-other person on behalf of an injured person or a person whose property was injured or destroyed, in relation to the actualpreparation or presentation of the claim of the person;
(vi) Any other expenditures, of an injured person, of a person whose property was injured or destroyed, orof another person on behalf of an injured. person or a person whose property was injured or destroyed, that the courtdetermines represent an actual loss experienced because of the personal or property injury or property loss.
(b)'"The actual loss of the person who is awarded the damages" does not include either of the following:
(i) Any fees paid or owed to an attorney for any services rendered in relation to a personal or proper-ty in-jury or property loss;
(ii) Any damages awarded for pai71 and suffering, for the loss of.society, consortium, companionship, care,assistance; attention, protection, advice, guidance, counsel, instruction, training, or education of an injured person, formental anguish, or for any other intangible loss.
(B) Notwithstanding any other provision of the Revised Code or rules of a court to the contrary, in an action aQainsta state university or college to recover damages for injury, death, or loss to persons or property caused by an act oromission of the state university or college itself, by an act or omission of any trustee, officer, or employee of the stateuniversity or college while acting within the scope of his etnployment or official responsibilities, or by an act or omis-sion of any other person authorized to act on behalf of the state university or college that occurred while he was engagedin activities at the request or direction, or for the benefit, of the state uruversity or college, the following rules shall ap-
ply:
(1) Punitive or exemplary damages shall not be awarded;
(2) If a plaintiff receives or is entitled to receive benefits for injuries or- loss allegedly incurred from a policy orpolicies of iTrsurance or any other source, the benefits shall be disclosed to the court, and the amount of the benefits shallbe deducted from any award against the state university or college recovered bv the plaintifT. No insurer or other personis entitled to bring a civil action under a subrogation provision in an i.nsurance or otlier contract against a state universitvor college with respect to such benefits.
EXHIBIT F
Nothing in this division affects or shall be construed. to limit the rights of a beneficiary under a life insurancepolicy or the rights of sureties under fidelity or surety bonds.
(3) "1'bere shall not be any limitation on compensatory damages that represent the actual loss of the person who isawarded the damages. However, except in wrongful death actions brought pursuant to Chapter 2125. of the RevisedCode, damages that arise from the same cause of action, transaction or occurrence, or series of transactions or occur-reaices and that do not represent the actual loss of the person who is awarded the damages shall not exceed two hundi-edfifty thousand dollars in favor ofany one person. The linutation on damages that do not represent the actual loss of theperson who is awarded the damages provided in this division does not apply to court costs that are awarded to a plain-tiff, or to interest on a judgment rendered in favor of a plaintiff, in an action against a state university or college:
HISTORY:
142 v H 267. Eff 10-20-87.