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Poole v. The Ohio State University Wexner Medical Center

Court of Claims of Ohio

May 30, 2018

TABITHA POOLE, et al. Plaintiffs
v.
THE OHIO STATE UNIVERSITY WEXNER MEDICAL CENTER Defendant

          Sent to S.C. Reporter 6/12/18

          DECISION OF THE MAGISTRATE

          ANDERSON M. RENICK MAGISTRATE JUDGE.

         {¶1} Plaintiffs brought this action alleging assault and battery. The case proceeded to trial on the issues of liability and damages.

         {¶2} This case arises from an incident at defendant The Ohio State University Wexner Medical Center (OSUWMC) which occurred on November 22, 2015. Plaintiffs Tabitha Poole and her daughter, Talaria Ferguson, allege that defendant's security staff used excessive force upon them while Poole was a patient in the OSUWMC emergency room (ER).[1]

         {¶3} Plaintiff testified that since sometime in 2008, she has experienced symptoms from epilepsy and neuropathy that developed as a result of a traumatic brain injury. Plaintiff related that she has epileptic seizures every day which vary in severity from "partial" to "grand mal." On the day in question, plaintiff was taken to OSUWMC after she noticed that a surgical dressing ("steri-strips") which was covering an abdominal incision from a recent surgical procedure had become loose, resulting in bloody drainage from the incision. Plaintiff testified that she had a seizure while she was being treated which caused her to lose consciousness and that, when she regained awareness, a security guard was talking to her daughter and a nurse. Plaintiff recalled a doctor and a nurse attending to her before she was placed in a wheelchair to be escorted from the examination room. Plaintiff testified that she also recalled she became upset when a woman placed her finger "in [plaintiffs] face." Plaintiff explained that, due to her neuropathy, she was unable to comply with directions to lift her feet while she was in the wheelchair. According to plaintiff, a security guard who was attempting to push the wheelchair out of the ER lifted the back of the chair and "flipped" her out of the chair and onto the floor. Plaintiff stated that while she was restrained on the floor she was placed in handcuffs and suffered another seizure. Plaintiff testified that when her daughter tried to intervene to protect her, a security guard threw her daughter to the floor by pulling her hair. A police officer helped plaintiff get up off the floor and he took her to a room where she remained until she was released.

         {¶4} Plaintiff testified that as a result of being assaulted by defendant's employees, she suffered injuries to her head, shoulders, arms, back, and legs. Plaintiff identified photographs that depict what appears to be scrapes and bruising on her face and head. (Plaintiffs Exhibits 1-9, 11-13.) Plaintiff testified that she and her daughter took the photographs within a couple days of the incident. Plaintiff subsequently testified that the photographs depicting injuries were taken with a cell phone camera on December 3, 2015, the date that was reflected on the digital images. On November 25, 2015, three days after the incident, plaintiff and her daughter were examined at the Diley Ridge Medical Center. (Plaintiffs' Exhibits 2 and 3.) Plaintiff testified that she continues to experience pain in her left shoulder, back, and head. According to plaintiff, the assault by defendant's employees has caused her to become anxious whenever she encounters security guards.

         {¶5} During cross examination, plaintiff testified that she did not recall much of her interaction with defendant's medical staff. Plaintiff denied hitting a nurse and she explained that she apologized to Nurse Pierce after being informed by security guards that the nurse was upset about the incident. Plaintiff also denied striking any security guard or emergency medical technician (EMT). Plaintiff testified that she was surprised that her OSUWMC medical records did not mention any injuries from the alleged assault, such as the scrapes or contusions that are depicted in the photos which were identified at trial.

         {¶6} Plaintiff Talaria Ferguson described her mother's medical condition prior to the day of the incident and she explained that during a grand mal seizure, plaintiff would involuntarily swing her arms and legs. According to Ferguson, plaintiff experienced grand mal seizures "every day" and less severe seizures occurred several times each day. Ferguson testified that plaintiff had a grand mal seizure while she was being treated by Nurse Pierce and that Nurse Pierce left the examining room and then returned with a security guard. Ferguson informed the security guard that plaintiff had had a seizure and that any physical contact plaintiff had with either Nurse Pierce or Ferguson was unintentional. Ferguson testified that as the security guard continued to ask questions, other medical staff arrived in the room and then the situation began "getting rowdy."

         {¶7} According to Ferguson, another nurse attempted to get plaintiff to lift her feet onto wheelchair foot supports, but plaintiff responded that that was "how she likes to sit" and she requested to use her own "walker-roller." Ferguson stated that when a female staff member had her finger close to plaintiffs face, plaintiff told her to move her finger and then she stood up from sitting in the wheel chair. Ferguson related that she believed that plaintiff was having a seizure and that she observed a security guard forcibly tilt plaintiffs wheelchair forward to "flip" plaintiff onto the floor after the guard became agitated that plaintiff did not lift her feet. Ferguson testified that she attempted to help her mother, but a security guard pulled her hair, causing her to fall to the floor where she remained for approximately five minutes before she was dragged down a hallway and placed in handcuffs. Ferguson stated that she suffered a concussion and injuries to her right shoulder and lip. On November 25, 2015, Ferguson was treated at Diley Ridge Medical Center for her injuries and related migraine headaches.

         {¶8} During cross examination, Ferguson maintained that she did not resist or fight back when she was assaulted. Ferguson testified that other security and medical staff were present when she was restrained and dragged down the hall of the ER.

         {¶9} Nurse Annmarie Pierce testified that she recalled the incident and that she had multiple contacts with plaintiff on that day. Pierce performed a "wound check" of plaintiffs incision and replaced the steri-strips that covered the incision. Pierce related that after plaintiff received her discharge instructions, she gave plaintiff crackers because she had requested food. Pierce was taking plaintiffs vital signs while plaintiff was lying still on a gurney when she suddenly struck Pierce in the abdomen with her left arm. Pierce stated that, at that time, she was not engaged in conversation and that plaintiff showed no other signs of agitation. Pierce related that she was "off guard" when she was hit hard, causing some bruising.

         {¶10} Pierce testified that she had a great deal of experience treating patients who had seizures and that plaintiff was awake and did not exhibit behavior that was typical of seizure patients. Pierce stated that plaintiffs daughter told her that plaintiff was having a seizure when Pierce exclaimed that plaintiff had hit her. According to Pierce, plaintiff began yelling at her, and exclaiming that she was having a seizure. Pierce asked another nurse to escort plaintiff out of the ER because plaintiff seemed upset with her. Pierce testified that she did not observe the subsequent altercation between plaintiffs and defendant's security staff.

         {¶11} Steven Wollenberg, the Associate Director of Security for OSUWMC, testified regarding defendant's security training and its use of force policy. (Defendant's Exhibit B.) Wollenberg testified that, generally, defendant's use of force policy requires staff members to use the minimum amount of force necessary to control a situation and to use all means necessary to de-escalate a conflict, especially with regard to patients. Wollenberg was familiar with the incident at issue through witness reports, but he was not present during the incident. Wollenberg explained that security cameras were present in the ER, but that the incident was not recorded because cameras were not located in treatment areas.

         {¶12} Wollenberg testified that OSUWMC security officers receive extensive training from certified instructors, including on the job training and annual refresher training. Wollenberg stated that no disciplinary action ...


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