Paul C. Wildenthaler, Administrator of the Estate of Kay C. Wildenthaler, Plaintiff-Appellant,
Galion Community Hospital, et al., Defendants-Appellees.
from the Franklin County Court of Common Pleas C.P.C. No.
Offices of Daniel R. Mordarski LLC, and Daniel R. Mordarski;
Oliver Law Office, and Jami S. Oliver, for appellant.
Robison, Curphey & O'Connell, LLC, Julia Smith Wiley,
and Corey L. Tomlinson, for appellee, Mary Wadika, D.O.
Gallagher Sharp, Monica A. Sansalone, Theresa A. Richthammer,
and Quinn M. Schmiege, for appellee, John Kerns, D.O.
1} Plaintiff-appellant, Paul C. Wildenthaler,
administrator of the estate of his late wife, Kay C.
Wildenthaler (as a collective party,
"Wildenthaler"), appeals from a judgment in favor
of defendants-appellees, Mary Wadika, D.O., and John Kerns,
D.O., entered on May 8, 2018, after a jury rendered a general
verdict for the defendants. Wildenthaler also appeals the
trial court's decision, entered on June 27, 2018, denying
his motion for a new trial. Because we find the trial court
erred by permitting the jury to execute a general verdict
without completing interrogatories consistent with the
general verdict, we sustain Wildenthaler's assignment of
error and reverse and remand for a new trial.
FACTS AND PROCEDURAL HISTORY
2} On Saturday, June 22, 2013, at 2:00 a.m., Kay
Wildenthaler ("Kay") and her husband, Paul
Wildenthaler ("Paul"), went to the emergency room
of the Galion Community Hospital. (Wildenthaler Ex. 15.) Kay
complained of back pain that had been ongoing for several
days and which had worsened progressively. Id. at 1.
She related that she had been given Tylenol with codeine in
connection with treatments related to lung cancer and had
taken four doses without perceptible effect. Id. She
was seen by Dr. Kerns. Id. According to the records
dictated by Dr. Kerns, Kay was 73, appeared uncomfortable,
cachectic and "really look[ed] like a walking
skeleton." Id. He noted a respiratory rate of
20 and an oxygen saturation level of 94 percent on room air
(no oxygen tank). Id. at 1. In addition, an x-ray
revealed pre-existing compression fractures of T12 and T7,
diffuse osteoporotic demineralization, and a mass or
infiltrative change of the left upper lobe of her lung.
Id. at 9. Dr. Kerns gave her hydrocodone 7.5 mg with
some amount of Tylenol (the records are unclear whether it
was 325 mg or 500 mg) and sent her home with instructions to
take further doses of the same as needed and see her family
physician in three days. Id. at 1; see also
Tr. Vol. I at 184-86, filed Nov. 5, 2018.
3} Kay and Paul returned to the emergency room again
later in the same day, at 7:08 a.m., with Kay still
complaining of back pain, and they were seen by Dr. Wadika.
(Wildenthaler Ex. 16 at 1.) Dr. Wadika also marked Kay's
cachectic appearance and recorded a body weight of 32 kg
(70.5 lb). Dr. Wadika recorded diminished breath
sounds but otherwise clear lungs with a respiration rate of
28 and an oxygen saturation level of 93 percent. Id.
at 2. In light of the fact that Kay had already taken "a
Vicodin earlier without any pain relief," Dr.
Wadika gave Dilaudid and then waited 30 minutes to observe the
effect. Id. When Kay reported mild relief but still
showed restlessness, Dr. Wadika gave 25 mg Benadryl
intramuscularly and waited a further 25 or 30 minutes.
Id. At that time, when restlessness had decreased
some but Kay still complained of pain, Dr. Wadika gave
Percocet orally. Id. Dr. Wadika then
discharged Kay with a prescription for Duragesic 12.5, a
patch dispensing 12.5 micrograms of fentanyl (an opioid
pain-reliever) per hour transdermally. Id. Dr.
Wadika concluded that Kay's pain was related to
compression fractures and metastatic cancer and instructed
Kay to see her family doctor on Monday. Id.
4} Kay and Paul returned to the emergency room a
final time on Sunday, June 23, 2013, at 2:33 p.m., and were
seen by Dr. Kerns and his physician's assistant, Haley
Bartholomew. (Wildenthaler Ex. 17 at 4.) Bartholomew noted
Kay's apparent discomfort despite having had Tylenol with
codeine at 10:00 a.m. and having placed the fentanyl patch
(Duragesic) at 11:00 a.m. Id. Her respirations were
recorded at 28 and her oxygen saturation was 92 percent on
room air. Id. at 5. A CT scan (computed tomography
scan) of her back showed a compression fracture not
previously observed at the T6 level. Id. at 12. Kay
was treated intravenously with 30 mg Norflex (a muscle
relaxer) and 15 mg Toradol (a non-opioid pain reliever).
Id. at 5. Bartholomew gave her a Percocet orally
when she continued to experience pain and, when that did not
relieve the pain, followed up with 4 mg of intravenous
morphine. Id. After the morphine, Kay felt better
and Bartholomew discharged her with instructions to leave the
patch on, take half a Vicodin in the event she began to be in
pain again, followed by the other half of the Vicodin if,
after an hour, the first half-pill had provided no relief.
Id. Dr. Kerns and Bartholomew discussed Kay's
situation and Dr. Kerns agreed with the course and management
of the case. Id.
5} According to Paul's testimony at trial, Kay
seemed lethargic when he got her home from the emergency room
and slept peacefully most of the day on Monday, June 24. (Tr.
Vol. II at 52-56, filed Nov. 5, 2018.) At one point, even
though she was groggy, Kay seemed restless. Id. at
56-59. So, as instructed, he gave her another half a Vicodin.
Id. Paul did not call the family doctor on Monday
because Kay seemed to be resting. Id. at 59-60. In
order to avoid disturbing her, he slept in the spare bedroom
on Monday night. Id. at 60-61. When he awoke and
checked on her Tuesday at 6:00 a.m., she was cold.
Id. at 61-62.
6} The autopsy and toxicology reports, issued
approximately four months after Kay's death, were
somewhat self-contradictory. (Wildenthaler Ex. 29.) The
coroner's report concluded that the "[c]ause of
death" was "METASTATIC CARCINOMA OF LUNG."
(Emphasis sic.) Id. at 1. Yet it concluded the
"[m]anner of death" was an "[a]ccident"
and listed "[h]ow the injury occurred" as
"TOOK EXCESSIVE PRESCRIPTION MEDICATION." (Emphasis
sic.) Id. It also recognized "[significant
conditions]" of "ACUTE COMBINED DRUG
INTOXICATION" and "SEVERE PANLOBULAR
EMPHYSEMA." (Emphasis sic.) Id. The toxicology
report noted in relevant part the presence of fentanyl,
hydrocodone, morphine, noroxycodone, oxycodone, and
oxymorphone in blood samples taken from Kay's heart and
in her urine. Id. at 7. The amount of fentanyl in
Kay's heart blood was less than 3 nanograms per
milliliter, below the toxicity threshold of more than 5
nanograms per milliliter. Id.
7} Just short of two years after Kay's death, on
June 16, 2015, Paul brought suit against Dr. Kerns and Wadika
for wrongful death. (June 16, 2015 Compl.) The complaint
alleged that "Kay died from respiratory depression
because the [f]entanyl and other opioid medication prescribed
by [the defendants] combined with Kay's diminished lung
functions from her lung cancer and emphysema caused her to
stop breathing." Id. at ¶ 42. Trial began
on April 23, 2018. (Tr. Vol. I at 1.)
8} During the week-long trial, 14 witnesses
testified. As the issues in this appeal are limited, we
likewise limit our discussion of their testimony.
9} Drs. Kerns and Wadika testified to the course of
treatment they provided. Both indicated that when they saw
Kay, they felt that she was in extremely poor health, that
she did not have long to live, and that she was in pain due,
at least in part, to her advanced lung cancer. Id.
at 65-66, 71-72, 94, 96-98, 159, 180, 188, 206-08, 212-15;
Tr. Vol. III at 352-54, filed Nov. 5, 2018; Tr. Vol. IV at
263-64, 276-77, filed Nov. 5, 2018. While acknowledging that
both the manufacturer of Duragesic and the FDA had warned
against the use of fentanyl patches in cases where the
patient has not already developed a tolerance to opioids
because of the risk of respiratory depression and death, each
doctor opined that neither of them violated the standard of
care or caused Kay's death in permitting her to use the
patch, particularly at such a low dose. (Tr. Vol. I at
100-08, 119-20, 223-24; Tr. Vol. III at 362-63; Tr. Vol. IV
10} In addition to relating the circumstances
surrounding Kay's death, Paul and his son (Jeff
Wildenthaler) testified that Kay was always an extremely
slightly built woman (weighing around 85 to 100 pounds when
healthy), had not lost much weight during cancer treatment,
and had received a very good report from her oncologist
indicating that she was responding well to treatment. (Tr.
Vol. II at 7, 25-29, 138-46, 159-60.)
11} The plaintiff called two experts to testify. The
first, an emergency room doctor, Frederick Carlton, M.D.,
testified that using the patch on Kay was a terrible
decision. (Tr. Vol. II at 210-11.) Her frail condition, low
weight, lung problems (including COPD and lung cancer), and
lack of an established tolerance for opioids put her at risk
for respiratory depression. Id. Use of the patch in
a case like Kay's was contraindicated by both the FDA
warnings and manufacturer's instructions. Id. at
213-14. Even if it had been necessary to use the patch, Dr.
Carlton opined that Kay should have been admitted to the
hospital for observation and monitoring. Id. at 215.
Based on the timeline of events and the clinical conditions,
Dr. Carlton explained there was no good explanation for the
cause of Kay's death other than respiratory depression.
Id. at 225-33. Accordingly, he opined that she died
of a fentanyl overdose. Id. at 225. He further
opined that Dr. Wadika breached the standard of care in
prescribing the patch for Kay to fill and use at home given
her small size, lack of significant opioid tolerance history,
and frail condition. Id. at 234-38. He testified
that Dr. Kerns violated the standard of care by allowing Kay
to go home still wearing the patch rather than removing the
patch or admitting her to the hospital. Id. at
12} The plaintiffs second expert, a hospitalist,
Cregg Ashcraft, M.D., testified similarly. He opined that in
the absence of any evidence of another possible cause of
death, respiratory depression brought on by the fentanyl
patch was the cause of Kay's death. (Tr. Vol. III at
70-77, 173-79.) Though he did not directly opine whether Drs.
Wadika and Kerns violated the standard of care, he testified
that Kay should have been admitted for observation and
monitoring if she was going to be on the patch. Id.
at 58-65, 110-11, 154-55.
13} The defense called four experts, two emergency
room doctors, Neal Little, M.D., and Michael Dick, M.D.; a
forensic pathologist, Carl Schmidt, M.D.; and a forensic
toxicologist, John Wyman, Ph.D.
14} Drs. Little and Dick testified that the
defendants met the standard of care. Dr. Little testified
that Dr. Wadika was trying to be creative in dealing with
intractable pain and that, given the failure of so many other
options, the fentanyl patch was a reasonable thing to try.
(Tr. Vol. IV at 49-51.) Because Kay had tolerated many times
the dose of opioids that the patch was capable of releasing,
and because of the very low levels of fentanyl detected in
her blood during the autopsy, he opined that Dr. Wadika's
treatment did not cause Kay's death. Id. at
49-52, 78. Dr. Dick found the approach taken by the emergency
room doctors in the case to have been a reasonable escalation
of opioid treatment and not violative of the standard of
care. (Tr. Vol. V at 30-33, 36-39, 41-42, 50.) In this
connection, he noted that some evidence in the autopsy of
necrotic tissue in her spine could suggest that the cancer
had progressed to her bones. Id. at 33-34. While he
acknowledged that it might have been a safer option to admit
Kay, he observed that being admitted is not a pleasant
experience and opined that it did not violate the standard of
care for the doctors to have failed to insist that she be
admitted. Id. at 42-44, 50. He concluded that
neither Dr. Kerns' care nor Dr. Wadika's care caused
Kay's death. Id. at 33-34, 48, 51.
15} Dr. Schmidt opined that Kay did not die of a
fentanyl overdose but was more likely just worn out by age
and malnourishment (as a consequence of disease). (Tr. Vol.
IV at 107, 115, 126-27.) He admitted that Kay's full
bladder and heavy lungs at the time of the autopsy are both
signs of an opioid overdose and that there have been cases in
which people have died of fentanyl overdoses with less than
three nanograms per milliliter blood concentration.
Id. at 145-46, 163-64. Nonetheless, he opined that
her death was a natural result of not having enough muscle,
fat, and energy stores to run her vital body processes.
Id. at 131-32, 159.
16} Dr. Wyman's testimony agreed with many
aspects of Dr. Schmidt's. He stated that blood drawn from
the heart often shows falsely inflated levels of drugs
because of postmortem redistribution, which is when
decomposition processes release drugs from organs and tissues
where they are stored and the drugs make their way into the
chest-cavity blood. Id. at 195-97. In this case,
given that a toxic level of fentanyl is 5-10 nanograms per
milliliter, while 10-15 nanograms per milliliter is toxic to
fatal, and 15 nanograms per milliliter is generally fatal,
Kay's heart blood concentration of below 3 nanograms per
milliliter was not likely the cause of death. Id. at
207-08. Dr. Wyman acknowledged that drug concentrations can
drop in overdose cases where a person dies a lingering death
and that a full bladder and heavy lungs are two indications
of an opioid overdose. Id. at 211-12, 236-39, 246.
Nevertheless, Dr. Wyman testified that one cannot say to a
reasonable degree of medical certainty that Kay died from an
opioid overdose based on the toxicology results. Id.
17} In the closing argument, the attorney for
Wildenthaler talked the jurors through how, based on the
evidence presented at trial, the jury should decide each of
the ten interrogatories that were presented with the verdict
forms. (Tr. Vol. V at 94-98.) In instructing the jury, the
judge also explained the use of the ...