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White v. Bhatt

Court of Appeals of Ohio, Fifth District, Richland

December 22, 2017

CHARLES A. WHITE, ET AL. Plaintiffs-Appellants/Cross-Appellees
v.
OMPRAKASH BHATT, MD., ET AL. Defendants-Appellees GUBERT L. TAN, M.D. Defendant-Appellee/Cross-Appellant

         Appeal from the Richland County Court of Common Pleas, Case No. 2015 CV 0991 R

          For Plaintiffs/Appellants Charles A. White and Christina M. Christner MICHAEL L. INSCORE

          For Defendant/Appellee Gubert Tan, JEANNE M. MULLIN TAYLOR C. KNIGHT

          For Defendant Omprakash Bhatt, M.D. KEVIN M. NORCHI BRENDAN M. RICHARD NORCHI FORBES

          For Defendants/Appellees Medcentral Health System and OhioHealth Corporation KENNETH R. BEDDOW

          Hon. Patricia A. Delaney, P.J. Hon. William B. Hoffman, J. Hon. John W. Wise, J.

          OPINION

          HOFFMAN, J.

         {¶1} Plaintiffs-appellants/cross-appellees Charles A. White, et al. appeal the March 7, 2017 Judgment Entry entered by the Richland County Court of Common Pleas, which granted summary judgment in favor of defendants-appellees Omprakash Bhatt, M.D., et al. Defendant-appellee/cross-appellant Gubert L. Tan, M.D. appeals the same judgment entry, which failed to address his argument he was immune from liability pursuant to R.C. 2108.40.

         STATEMENT OF THE FACTS AND CASE

         {¶2} On March 13, 2013, Cheri White ("Decedent"), Appellants' mother, was transported to Appellee MedCentral Health System's Mansfield Hospital in an unconscious state. Dr. Bhatt[1] admitted Decedent to the hospital. Decedent was placed on a ventilator in the intensive care unit.

         {¶3} Appellant Charles White arrived at the hospital on March 13, 2013, and proceeded to Decedent's room in the intensive care unit. As Appellant Charles White approached the opened door to Decedent's room, he observed nurses or other hospital staff at his mother's bedside. The nurses had raised Decedent's leg and pulled up her hospital gown, exposing her genital area. Appellant Charles White questioned the nurses, who explained they were adjusting Decedent's urinary catheter. Appellant Charles White asked the nurses to respect Decedent's privacy by closing the room door when they were administering nursing care.

         {¶4} Dr. Bhatt suspected Decedent was brain dead when he admitted her. To confirm his suspicions, Dr. Bhatt ordered a neurological consultation of Decedent by Appellee Dr. Gubert Tan.

         {¶5} The undisputed evidence presented in this case established the standard of care for determination of brain death. A neurologist must conduct testing to determine the presence or absence of brain stem reflexes to confirm whether a patient is brain dead. The reflex testing includes evaluating a patient's eyes to determine if her gaze is fixed, establishing whether the patient has a blink reflex, and examining the reactivity of the patient's pupils. Reflex testing requires the neurologist to manually open the patient's eyes, using his fingers. The neurologist also tests whether the patient is responsive to stimulus, which is done by applying noxious stimuli to the patient's face, hands, and soles of the feet. In addition, the neurologist examines muscle stretch reflexes, especially facial and jaw reflexes, by applying pressure over the patient's mastoid and sternum, and by moving the patient's extremities. If the results of the brain stem reflex testing are negative for brain stem response, the neurologist then conducts an apnea test before a final determination of brain death is confirmed.

         {¶6} To perform an apnea test, the patient is removed from artificial ventilation. The patient is observed for spontaneous respiration efforts for five to ten minutes. If respiratory efforts are observed, the patient cannot be declared brain dead. If no spontaneous respiratory efforts are observed and if all other criteria are met, the patient is declared brain dead. In order for the neurologist to observe even the slightest effort at spontaneous respiration, the patient's neck, chest, and upper abdomen must be unclothed. The neurologist will have the patient's family members present during the examination in order for them to understand the patient's condition and to assist them in making the decision as to whether to cease life-sustaining medical treatment.

         {¶7} On March 14, 2013, Dr. Tan spoke to Appellant Charles White and advised him the ventilator was sustaining Decedent's breathing and he was unable to detect any signs of brain activity. Dr. Tan conducted the reflex tests in the presence of Appellant Charles White, who perceived the tests as "pinching and prodding" Decedent. Dr. Tan opened Decedent's eyes, and stated, "You can see how dead your mother is, and there's no brain activity." Because the reflex test and other medical tests indicated Decedent was brain dead, Dr. Tan informed Appellant Charles White he needed to perform an apnea test. Dr. Tan explained the steps involved in determining brain death and the reasons for each step, including what would occur during the apnea test.

         {¶8} Appellant Christina Christner, Decedent's daughter, and her family arrived from Virginia on the morning of March 15, 2013. During the afternoon, Appellant Charles White received a telephone call summoning him to the hospital. He was aware medical personal intended to conduct a test to determine if Decedent could breathe without artificial ventilation.

         {¶9} Dr. Tan, with Dr. Bhatt's assistance, performed the apnea test on March 15, 2013, in the presence of Appellants and other family members. During the apnea test, Decedent's hospital gown was pulled down to reveal her chest, neck, and upper abdominal area, which allowed Drs. Tan and Bhatt and other medical personal to have an unobstructed view of Decedent's diaphragm and other respiratory muscles to assess the presence or absence of spontaneous respirations. Appellant Charles White claimed Decedent was fully disrobed while the test was performed. Appellant Charles White was deeply disturbed by seeing Decedent unclothed and left the room. Two other male relatives also exited the room during the testing. Decedent was pronounced dead on March 15, 2013.

         {¶10} Appellant Charles White took three weeks of bereavement leave following Decedent's death, then returned to work full-time. Approximately one year later, Appellant Charles White engaged in one counseling session. He did not undergo any kind of mental health or bereavement counseling prior to the one counseling session. Appellant Charles White did not seek treatment for anxiety or depression, and was not prescribed any medication for anxiety or depression. He did not take any additional time off from work following his bereavement leave. Appellant Christina Christner was taking anti-depressants prior to Decedent's death, and her physician had recommended she undergo therapy. Appellant Christina Christner asserted her pre-existing depression and anxiety worsened following Decedent's death.

         {¶11} Appellants filed the instant action, claiming they suffered severe emotional distress caused by witnessing Appellees' mistreatment of Decedent while providing medical care to Decedent. Dr. Tan filed a motion for summary judgment on January 12, 2016. MedCentral and Dr. Bhatt filed motions for summary judgment on January 17, 2016.

         {¶12} Via Judgment Entry filed March 7, 2017, the trial court granted summary judgment in favor of Appellees.

         {¶13} It is from this judgment entry Appellants appeal, ...


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