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Vincent Turner, Administrator of the Estate of Gardenia Turner, Deceased v. Elk & Elk L.P.A.

October 27, 2011


Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-695681

The opinion of the court was delivered by: Mary Eileen Kilbane, A.J.:

Cite as Turner v. Elk & Elk, L.P.A.,




BEFORE: Kilbane, A.J., Blackmon, J., and Celebrezze, J.


{¶1} Plaintiff-appellant, Vincent Turner (Turner), son of Gardenia Turner (Gardenia) and Administrator of her estate, appeals from the defense verdict rendered in his legal malpractice action against defendants Elk & Elk, L.P.A. and Martin Delahunty III. For the reasons set forth below, we affirm.

{¶2} On November 15, 2001, Dr. James Hessler performed a tubinate surgery with a tonsillectomy and palatoplasty on 60-year-old Gardenia at Wooster Community Hospital (Wooster Hospital). Gardenia suffered from obstructive sleep apnea. Following surgery, and after her breathing tube was removed, she experienced difficulty breathing. She was reintubated, given a tracheostomy, placed on a ventilator, and given Demerol for pain at two-hour intervals. By around 8:30 a.m. the following morning, she was taken off the ventilator. Two hours later, she was put back on the ventilator. After about an hour, nurses maintaining the tracheostomy tube could not pass a suction catheter into her lungs. Responding to a stat call to the room, anesthesiologist Benjamin Weeman, Doctor Robert Sibilia, and Doctor Hessler administered an Ambu bag and attempted to re-establish ventilation through the tracheostomy, a breathing tube, and jet ventilation through a bore needle in Gardenia's neck, but she went into cardiac arrest and died.

{¶3} On February 17, 2003, plaintiff entered into a contingency fee agreement with defendant Delahunty of Elk & Elk. Delahunty filed suit against Doctor Hessler and Wooster Hospital on May 2, 2003. He voluntarily dismissed the lawsuit on June 2, 2004, and refiled it on May 26, 2006. By mid-2006, Delahunty concluded that Gardenia had died from an overdose of Demerol, but he was unable to retain an expert who met the requirements for testifying in court as to liability.*fn1 The trial court awarded Doctor As set forth in Wise v. Doctors Hosp. North (1982), 7 Ohio App.3d 331, 455 N.E.2d 1032, the "liability issues are duty and breach of duty, liability being defined as responsibility for conduct. The damage issues are proximate cause and damages."

Hessler and Wooster Hospital summary judgment. Attorney Peter Traska of Elk & Elk perfected an appeal to the Ninth District Court of Appeals, but the appeal was dismissed for failure to timely file the appellant's brief.

{¶4} Plaintiff filed suit against Elk & Elk, Arthur Elk, David Elk, Delahunty, and Traska on June 12, 2009. Plaintiff alleged that the defendants breached their duty of care in the matter by failing to sue the proper parties, failing to consult medical experts to assess the merits of the malpractice action, failing to identify medical experts to support the malpractice action, and failing to properly appeal the entry of summary judgment.

{¶5} Arthur Elk and David Elk were subsequently granted summary judgment, and plaintiff voluntarily dismissed his claims against Traska. The matter proceeded to a jury trial on November 15, 2010.

{¶6} Turner testified that his family moved to Wooster, Ohio from West Virginia, and that the family was extremely close-knit. At the time of her death, his mother was 60 years old and had six children and 18 grandchildren. She worked full time in the stockroom at Gertenslager's Stamping Plant and earned between $28,000 and $30,000 per year. Prior to the 2001 surgery, his mother had sleep apnea and snored, but had been in good health and had no lung problems. In the evening after her surgery, Gardenia had an endotracheal tube and was in discomfort but was doing well. The next morning, his sister, Felicia Jean Hart (Felicia), called and told him to come to the hospital. When Turner arrived minutes later, the doctors were working on his mother and they ushered him from the room. Doctors Hessler and Sibilia later spoke to him briefly and explained that they were trying to insert tubes into Gardenia's lungs. A short time later, Doctor Hessler returned and said that Gardenia had died. According to Turner, it appeared as though his mother had "swollen up."

{¶7} In 2003, he contacted Elk & Elk to pursue a medical malpractice action on behalf of his mother's estate. An investigator from the firm met with Turner, and subsequently Delahunty's paralegal, Melanie Alvado (Alvado), called them and indicated that the firm would take the case. Turner and Delahunty signed a contingency fee agreement, but whenever Turner called the firm, Alvado rather than Delahunty would speak with him. He did not meet Delahunty until 2007.

{¶8} Turner further testified that Delahunty at no time explained to him that he was having difficulty obtaining an expert to testify as to a breach of the standard of care, did not inform him that he had dismissed then refiled the case, and did not inform him that the appellate brief had not been timely filed.

{¶9} On cross-examination, Turner admitted that the death certificate issued in this matter states that Gardenia died from "acute respiratory insufficiency, massive generalized edema, acute anaphylactic reaction, possibly secondary to Demerol injection."

{¶10} Delahunty testified on cross-examination that he had ultimate responsibility over the matter. Delahunty stated that physicians retained as independent contractors by Elk & Elk, Doctor Stearns and Doctor Herman, did not believe that there was any viable cause of action, but he wanted to give the family a chance. He stated that physicians from American Medical Forensic Specialists (AMFS) reviewed the case and determined that Gardenia did not die due to a lost airway. Doctor Herman also opined that it was not a lost airway case. Some of the medical records, including the coroner's report, indicated that Turner had a meperidine, i.e., Demerol, level of five times the limit. Delahunty, in reliance upon toxicologist Olen Brown, Ph.D., believed there was a good faith basis to conclude that Gardenia had died from a Demerol overdose.

{¶11} Delahunty admitted that a paralegal erroneously inserted Gardenia's name on a request for medical records in a dog bite case. Another request for medical records was directed to a physician who never treated her, and a third contained a date of injury that was over a year after her death. Also, the complaint at one point, referenced "Elaine Walden," rather than Gardenia, and a punitive damages claim was dismissed for failing to state a viable claim against a municipal hospital.

{¶12} Delahunty explained that he dismissed the complaint after learning that Doctor Brown could not testify for the plaintiff. After refiling the matter, Delahunty sought out numerous experts on the issue of the standard of care in this matter, but he could not find one. He subsequently retained Doctor Barry Gustin, who did not meet the requirements for testifying as to liability, but in regard to the issue of proximate cause, he believed that Gardenia suffered a fatal drug overdose. According to Delahunty, Doctor Gustin was the only physician he could find who was willing to testify for the plaintiff.

Moreover, Delahunty believed that the excessive amount of meperidine permitted the inference of negligence under res ipsa loquitur.*fn2 However, the trial court ruled on July 23, 2007, that the doctrine of res ipsa loquitur could not be used under the facts of the Turner medical malpractice case, and it entered summary judgment in favor of the defendants.

{¶13} The firm commenced an appeal and Delahunty spoke with Traska, an appellate attorney for Elk & Elk, about the issues to be raised. In January 2008, however, Delahunty began an extensive medical leave. A paralegal did not properly docket the appeal and did not notify Traska of the deadline for the appellant's brief, and therefore, the appeal was subsequently dismissed. The Ohio Supreme Court did not permit a further appeal, and he admitted that the opportunity to have a reviewing court examine the trial court's ruling was lost.

{¶14} Traska admitted on cross-examination that he was aware that dismissal is a possible sanction for failure to timely file an appellate brief, but this severe sanction is unusual. He stated, however, that he believed that the outcome of the case would have been the same if the court had heard the appeal on its merits.

{¶15} Doctor John Kress, a pulmonary critical care physician who is board certified in internal medicine, anesthesiology, pulmonary medicine, and critical care, opined to a reasonable degree of medical certainty that the circumstances of Gardenia's death were inconsistent with a Demerol overdose in that the amount that she had been given was within the typical range and the high post- mortem amounts were due to the fact that the final injection did not get distributed throughout her body prior to her death. He additionally opined that the findings were not consistent with anaphylaxis, which would cause a rash and hives, and close the airway at the larynx but not at the trachea. Further, this type of reaction would be unlikely here, upon Gardenia's seventh dose of Demerol.

{¶16} According to Doctor Kress, the medical records indicate that Gardenia had lost her airway, since a nurse reported noises indicative of a leak in the area of the tube and because a suction catheter could not be inserted into the tube. In addition, Gardenia complained of being short of breath, and resistence was noted by Doctor Weeman when he attempted to ventilate Gardenia using an Ambu bag. In Doctor Kress's opinion, the endotracheal tube came out and became embedded in the surrounding tissue. The resulting attempts to administer air resulted in air being sent into the tissue, giving the patient a swollen appearance.

{¶17} Although the medical malpractice defendants attempted to insert a 5.0 size endotracheal tube through the 6.0 tube that had already been inserted, this only exacerbated the problem. When they tried to re-establish the airway by inserting another breathing tube, they were too late because Gardenia's neck had already become swollen. Jet ventilation was also administered too late. Doctor Kress stated that, although it is not substandard to fail to insert an endotracheal tube, the medical malpractice defendants had violated the standard of care by failing to promptly recognize that the crisis and the resulting delays caused Gardenia's death. Although the autopsy states that "an

Endotracheal tube is in place through a tracheostomy," this is simply in reference to the external examination, and there is no mention of the precise positioning of the tube upon the internal examination.

{¶18} On cross-examination, Doctor Kress acknowledged that trachea care had been provided without incident, but the doctor's notes indicate that the ventilator alarm sounded two minutes after Gardenia received her seventh dose of Demerol. He also noted that if during ventilation attempts, air had come out of Gardenia's nose, this could indicate that the trachea was in its proper position. He also admitted that the coroner found "massive generalized edema," and "acute anaphylactic reaction, possibly due to Demerol[,]" and also concluded that the subcutaneous air found in her system developed later. He acknowledged that Demerol can cause an anaphylactic reaction.

{¶19} David Elk testified that Delahunty and Traska are employed by the firm. He stated that by entering into the contingency fee agreement, the firm agreed to investigate the matter, determine if it was worthy of recovery, and incur all of the expenses involved with the case. He admitted that if an attorney violates the standard of care, then that constitutes neglect, and that the firm was responsible for the paralegal's mistake in failing to docket the appeal, which resulted in the firm failing to file the brief.

{ΒΆ20} David Elk further testified that Delahunty had gone "above and beyond" in trying to get a medical expert to establish a breach in the standard of care owed to Gardenia, as he contacted an expert referral service, which in turn contacted a critical care expert, a forensic pathologist, and a toxicologist. The firm then paid for each of those individuals to review the medical records, but all subsequently opined that there had been no breach. Delahunty then attempted to establish liability ...

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