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Tara N. Fehrenbach, Gina D. Fehrenbach v. Kathryn O'malley

October 28, 2011


Civil Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: TRIAL NO. A-9701756

The opinion of the court was delivered by: Dinkelacker, Presiding Judge.

Cite as

Fehrenbach v. O'Malley,



Please note: This case has been removed from the accelerated calendar.

{¶1} Plaintiffs-appellants Tara, Gina, and Thomas Fehrenbach, filed a medical malpractice action against defendants-appellees Kathryn O'Malley, M.D., and her employer, Suburban Pediatric Associates, Inc., (collectively, where appropriate, "Dr. O'Malley"). A jury returned a verdict in favor of Dr. O'Malley. The Fehrenbachs have filed a timely appeal. We find no merit in their six assignments of error, and we affirm the trial court's judgment.

I. Facts and Procedure

{¶2} On October 1, 1990, 14-month-old Tara woke with a temperature of 105.2 degrees. She vomited, and her mother, Gina, found her to be "lethargic." Gina made an appointment to take Tara to see her pediatrician, Dr. O'Malley, at Suburban Pediatric Associates, that afternoon.

{¶3} Tara had had a history of ear infections and her parents had scheduled surgery to correct her ear problems. Dr. O'Malley examined Tara and concluded that she had a severe double ear infection. She prescribed an oral antibiotic and Tylenol.

{¶4} That night, Tara was cranky and slept poorly. Gina noticed that she would not lie on her back. Gina took Tara back to Dr. O'Malley's office the following morning. She told the doctor that Tara's fever had not been lower than 104 degrees, that she was still vomiting, and that she was "very lethargic." Dr. O'Malley examined her and found that Tara was still suffering from ear infections. She told Gina to continue with the antibiotic and Tylenol, and to give Tara fluids to prevent dehydration.

{¶5} On the morning of October 3, Tara showed some improvement. Her temperature was lower, and she was able to sit up for a short time and eat a little.

Gina felt encouraged and left Tara with her mother-in-law while she went to work for a short time.

{¶6} Tara took a turn for the worse that afternoon. Her fever spiked and her grandmother had difficulty arousing her from sleep. Gina came home and found Tara to be extremely lethargic. She held Tara most of the afternoon and Tara pressed her head into Gina's arm.

{¶7} That night, Thomas returned from an out-of-town trip. He thought that Tara looked worse than she had when he had left on October 1. He insisted that they call the doctor's office. The on-call physician at Suburban Pediatrics told them to take Tara to the hospital immediately. They took her to the emergency room at Children's Hospital Medical Center.

{¶8} A lumbar puncture revealed that Tara had bacterial meningitis. Her spinal fluid revealed over 1 million colonies of a particularly virulent, antibioticresistant bacterium that was virtually unknown in Cincinnati at the time. Tara was given intravenous antibiotics and remained hospitalized for over a month.

{¶9} While she was hospitalized, Tara suffered numerous complications. She developed hydrocephalus, a condition in which her body's ability to drain cerebral fluid was compromised. The doctors placed a shunt into her head to drain the fluid down to her abdomen. Tara will have to have a shunt for the rest of her life.

{¶10} The doctors agreed that Tara had survived the meningitis against the odds. She did not develop any cognitive impairment, and she was a college student with a high grade-point average at the time of the trial. Nevertheless, she has had multiple brain surgeries to remedy complications from the shunt and other issues that resulted from the meningitis. She also had to have surgery to remedy chronic back pain. She will have to be monitored for the rest of her life to make sure that the shunt does not malfunction. If it does, and she becomes lethargic and/or suffers a severe headache, she must be able to get to a medical facility capable of conducting brain surgery within four hours or she could die.

{¶11} Seven years after Tara's illness, Tara, through her parents, sued Dr. O'Malley and her employer, Suburban Pediatrics, for medical malpractice. Her parents also filed a loss-of-consortium claim. Following a trial, a jury returned a verdict in favor of O'Malley. The trial court denied the Fehrenbachs' motion for a new trial or for judgment notwithstanding the verdict. The Fehrenbachs filed a timely appeal from the trial court's judgment.

{¶12} We reversed the trial court's judgment on several grounds, most notably, pervasive misconduct by Dr. O'Malley's counsel. Fehrenbach v. O'Malley, 164 Ohio App.3d 80, 2005-Ohio-5554, 841 N.E.2d 350 ("Fehrenbach I"). We remanded the case for a new trial on both the medical-malpractice claim and the parental loss-of-consortium claim. Id. at ¶103.

{¶13} The case was again tried to a jury. The Fehrenbachs presented expert testimony that Dr. O'Malley had deviated from the standard of care by failing to diagnose and treat for meningitis, and that earlier treatment would have prevented the bacteria in Tara's blood from infecting her brain or would have attacked the meningitis in time to prevent hydrocephalus and the other complications that Tara had suffered.

{¶14} O'Malley presented expert testimony showing that Tara had a rare, aggressive strain of bacteria that did not emerge as meningitis until the afternoon of October 3, when she took a turn for the worse. O'Malley's experts testified that Tara did not have meningitis when she saw Dr. O'Malley on October 1 and 2, and that given the non-specific symptoms that Tara had presented with on October 1 and 2, a diagnosis of ear infections was reasonable.

{ΒΆ15} After the jury returned a verdict in favor of Dr. O'Malley, the Fehrenbachs filed motions for judgment notwithstanding the verdict ("JNOV") and for a new trial. The trial ...

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