Opinion
No. 86-13246.
Decided October 31, 1988.
David W. Sumner, for plaintiff.
Anthony J. Celebrezze, Jr., Attorney General, and Timothy J. Bojanowski, Assistant Attorney General, for defendant.
On December 11, 1986, the plaintiff, Lisa M. Hill, filed this action against the defendant, Ohio University, alleging that employees of the defendant's Hudson Health Center were negligent when treating her medical problems. On September 27, 1988, this cause came on for trial. The court has considered the evidence and arguments presented, relating to the issues of liability and damages, and renders the following decision.
Findings of Fact
The plaintiff was a student attending Ohio University in Athens, Ohio, pursuing a course of study in dancing, at the time relevant herein.
On October 7, 1982, the plaintiff voluntarily went to the Hudson Health Center at Ohio University, seeking relief from discomfort caused by allergic symptoms and sinus trouble. On May 2, 1983, plaintiff, experiencing common cold miseries, returned to the Hudson Health Center, seeking medical treatment. Dr. James E. MacMillan diagnosed the plaintiff's condition as acute allergic rhinitis and prescribed Actifed, tetracycline and Robitussin PE.
Plaintiff again visited the Hudson Health Center on May 29, 1984, complaining of problems relating to allergic reactions. Upon examining the plaintiff, Dr. MacMillan again diagnosed allergic rhinitis and prescribed Actifed and Afrin nasal spray. Unfortunately, plaintiff's discomforts persisted, thus causing her to seek additional medical care at said health facility on two other occasions in 1984. On June 5, 1984, Dr. MacMillan diagnosed allergic rhinitis and sinusitis and prescribed Entex LA and Dimetapp Extentabs and on September 21, 1984, he prescribed Actifed to alleviate plaintiff's complications precipitated by acute allergic rhinitis.
On April 19, 1985, the plaintiff conferred with Dr. MacMillan, who determined that she was suffering from acute recurrent allergies sinusitis and prescribed Kenalog 60 mg. 1.5 cc IM. Clarice Swisher, a registered nurse working with Dr. MacMillan at the center, administered an injection of Kenalog into the plaintiff's right buttock.
Plaintiff's allergies persisted, however, and caused her to consult Dr. MacMillan again on May 30, 1985. Dr. MacMillan instructed Nurse Swisher to administer another injection of Kenalog. It should be noted that during trial there was a conflict in testimony concerning which side of the buttocks the second shot was administered. Nurse Swisher stated that she believes she alternated sides for the two shots; plaintiff, however, testified that both injections were given in the right buttock.
A short time after the second shot was administered, the plaintiff first noticed a peculiar indentation on her right buttock. Plaintiff then consulted her family physician, who suggested that a slight weight gain would render the indentation unnoticeable. However, the indentation became more pronounced. As a result, plaintiff consulted Dr. Robert Karlin, a plastic surgeon, in Los Angeles, California, and decided that surgery may be helpful. On February 7, 1986, Dr. Karlin performed reconstructive surgery on the plaintiff's right buttock in an effort to correct the problem. As a result of the surgery, a scar deformity remains.
Conclusions of Law
Plaintiff's complaint, framed as a medical malpractice action, raises the questions of whether her aforesaid unnatural condition was caused by the failure of defendant's employees to exercise skill, care and diligence expected of others in the same profession and whether her treatment was below the proper standard of care.
The evidence adduced at trial indicates that Dr. MacMillan and Clarice Swisher were employees of the defendant, acting within the scope of their employment, at the time they rendered medical care to the plaintiff. Therefore, if their treatment of plaintiff was below the applicable standard of care, defendant would be liable.
In Ohio, the standard of care for a physician has been enunciated by the Ohio Supreme Court as follows:
"In order to establish medical malpractice, it must be shown by a preponderance of evidence that the injury complained of was caused by the doing of some particular thing or things that a physician or surgeon of ordinary skill, care and diligence would not have done under like or similar conditions or circumstances, or by the failure or omission to do some particular thing or things that such a physician or surgeon would have done under like or similar conditions and circumstances, and that the injury complained of was the direct and proximate result of such doing or failing to do some one or more of such particular things." Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 75 O.O.2d 184, 346 N.E.2d 673, paragraph one of the syllabus. See, also, 67 Ohio Jurisprudence 3d (1986) 30, Malpractice, Section 20.
In the case at bar, Dr. Joan Wumbrand testified that ordinary treatment of allergic rhinitis consisted of a four-step process. In order to relieve an individual from allergic rhinitis, a physician should (1) prescribe antihistamines, (2) prescribe a decongestant, (3) instruct the patient to use a nasal spray, and (4) administer medication intramuscularly.
The plaintiff's medical records at Hudson Health Center, as aforementioned, indicate Dr. MacMillan prescribed Actifed, Entex LA and Dimetapp Extentabs in 1984. These drugs are decongestants with an antihistaminic function. Additionally, the plaintiff was advised to try Afrin nasal spray. The evidence reflects that the conventional methods of treatment for allergic rhinitis had not effectively relieved plaintiff's discomfort; the plaintiff testified that the medication, prior to the injection of Kenalog, was ineffective.
The plaintiff alleges that Dr. MacMillan fell below the acceptable standard of care for his profession by prescribing the injection of Kenalog. Dr. Joan Wumbrand so testified, but Dr. Robert Murphey testified to the contrary. The evidence demonstrates that the plaintiff's allergic complications subsided after the Kenalog injections. The court does not agree that the prescription and use of said drug were improper or neglectful under the circumstances. In this regard, the plaintiff did not meet her burden of proof to establish that Dr. MacMillan's treatment fell below the aforementioned standard of care; Dr. MacMillan did not fail to assess and diagnose the plaintiff's condition accurately and the medications prescribed were not inappropriate. The evidence shows that Dr. MacMillan prescribed the Kenalog injections when the conventional methods of treatment for allergic rhinitis were unsuccessful.
The plaintiff also contends that Dr. MacMillan failed to adequately communicate the risks that surround Kenalog injections, thus alleging a lack of informed consent.
In Nickell v. Gonzalez (1985), 17 Ohio St.3d 136, 17 OBR 281, 477 N.E.2d 1145, the court stated that the reasonable-patient standard must be utilized to decide the issue of whether a potential risk is sufficiently material to require disclosure. In Ohio, a lack of informed consent action is established when:
"(a) The physician fails to disclose to the patient and discuss the material risks and dangers inherently and potentially involved with respect to the proposed therapy, if any;
"(b) the unrevealed risks and dangers which should have been disclosed by the physician actually materialize and are the proximate cause of the injury to the patient; and
"(c) a reasonable person in the position of the patient would have decided against the therapy had the material risks and dangers inherent and incidental to treatment been disclosed to him or her prior to the therapy." Id. at syllabus.
In view of this standard, a physician must determine if a patient would deem the risk to be significant enough to forgo the proposed treatment.
In the instant action, the court is of the opinion that plaintiff, if completely aware of the miniscule risk of atrophy occurring from the injection of Kenalog, would not have rejected the treatment; a "reasonable person" in plaintiff's position most likely would not have decided against the therapy. Thus, the court finds that the plaintiff's lack of informed consent allegation is not meritorious and finds no negligence in this regard.
The central issue focuses on the act of Nurse Clarice Swisher, concerning the injections of Kenalog. As a registered nurse, Swisher is recognized as a professional in the health care profession and, therefore, must demonstrate that skill, care and diligence expected of others similarly situated in the profession. See Davis v. Eubanks (1960), 83 Ohio Law Abs. 28, 167 N.E.2d 386; Restatement of the Law 2d, Torts (1965) 73, Section 299A.
Since this matter is a malpractice action, the plaintiff has the burden of proof to establish a proximate causal connection between the alleged act of malpractice and the specific injury. In this situation, the plaintiff must show that Swisher failed to demonstrate the requisite degree of skill and diligence observed in her profession.
Dr. Joan Wumbrand testified at trial, on plaintiff's behalf, that Swisher must have deviated from the standard of care when she administered the injections of Kenalog because plaintiff's physical appearance, as demonstrated in plaintiff's exhibits, evidences that a significant portion of Kenalog found its way into the fatty tissue, subsequently causing atrophy. Dr. Wumbrand indicated that an air-lock technique of injection should have been implemented to administer said drug; Swisher testified that she did not utilize such a technique.
The Physicians Desk Reference (1985) 1999-2001, which was entered into evidence, states that "[u]nless a deep intramuscular injection is given, local atrophy is likely to occur." (Emphasis added.) Id. at 2000. Additionally, this reference material recommends the use of "alternate sites for subsequent injections [of Kenalog.]" Id. at 2001. The plaintiff testified that both injections were given in the same general area of the upper quadrant of the right buttock.
Upon review of the evidence and in consideration of the arguments presented at trial, the court finds that the plaintiff has met her burden of proof in establishing that a causal connection exists between said medical care and the subsequent atrophied condition. At the least, the second Kenalog injection was improperly administered and, thus, the court concludes that the nurse's actions deviated from acceptable medical practice. Accordingly, the court finds that the defendant was negligent in its care for plaintiff and thus is liable for damages as a result thereof.
In an effort to determine an amount to effectively compensate the plaintiff for her injuries, the court has considered the extent of the injury, the pain and suffering experienced by plaintiff, the severity of the scar on the plaintiff's right buttock, and the necessary medical expenses incurred by the plaintiff, e.g. the reconstructive surgery performed, all due to the defendant's breach of duty.
After duly considering these factors, the court finds that plaintiff has suffered damages in the amount of $15,237 for injuries and expenses sustained as a result of defendant's negligence. R.C. 2743.02(D) states, in pertinent part, 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 court is cognizant that plaintiff has received insurance benefits, in the amount of $5,237, to pay her medical expenses incurred as a direct and proximate result of said injury; as a collateral source, such benefits must be utilized to reduce the total amount of recovery awarded to plaintiff. In subtracting the collateral source from the aforementioned recovery, the court finds that plaintiff is entitled to judgment in the amount of $10,000 as compensation for damages incurred. Accordingly, judgment is hereby rendered for the plaintiff and against the defendant in the amount of $10,000.
Before concluding, the court is constrained to comment on the credibility of the plaintiff and all of the witnesses. Although it is regrettable, seldom do parties and witnesses testify candidly to facts and not at least shade their testimony to support their respective positions. In this case each witness, including the plaintiff, obviously was attempting to testify without regard to the ramifications of that testimony. They are to be commended. And, in closing, it was difficult for the court to conclude that Nurse Swisher negligently administered the injection, for the court does not wish to indicate her incompetence, but it is doubtful that anyone can administer the number of shots administered by this valued nurse without erring once.
Judgment for plaintiff.
RUSSELL LEACH, J., retired, of the Franklin County Municipal Court, sitting by assignment.