Court of Appeals of Ohio, Fifth District, Richland
CHARLES A. WHITE, ET AL. Plaintiffs-Appellants/Cross-Appellees
OMPRAKASH BHATT, MD., ET AL. Defendants-Appellees GUBERT L. TAN, M.D. Defendant-Appellee/Cross-Appellant
from the Richland County Court of Common Pleas, Case No. 2015
CV 0991 R
Plaintiffs/Appellants Charles A. White and Christina M.
Christner MICHAEL L. INSCORE
Defendant/Appellee Gubert Tan, JEANNE M. MULLIN TAYLOR C.
Defendant Omprakash Bhatt, M.D. KEVIN M. NORCHI BRENDAN M.
RICHARD NORCHI FORBES
Defendants/Appellees Medcentral Health System and OhioHealth
Corporation KENNETH R. BEDDOW
Patricia A. Delaney, P.J. Hon. William B. Hoffman, J. Hon.
John W. Wise, J.
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
OF THE FACTS AND CASE
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 admitted Decedent to the
hospital. Decedent was placed on a ventilator in the
intensive care unit.
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.
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
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
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
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
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.
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.
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.
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.
Via Judgment Entry filed March 7, 2017, the trial court
granted summary judgment in favor of Appellees.
It is from this judgment entry Appellants appeal, ...