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Wildenthaler v. Galion Community Hospital

Court of Appeals of Ohio, Tenth District

December 3, 2019

Paul C. Wildenthaler, Administrator of the Estate of Kay C. Wildenthaler, Plaintiff-Appellant,
Galion Community Hospital, et al., Defendants-Appellees.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 15CV-5091

         On brief:

          Law 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.


          Daniel R. Mordarski.

          Corey L. Tomlinson.

          Quinn M. Schmiege.


          BRUNNER, J.

         {¶ 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.


         {¶ 2} On Saturday, June 22, 2013, at 2:00 a.m., Kay Wildenthaler ("Kay[1]") 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[2] 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[3]). 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[4] earlier without any pain relief," Dr. Wadika gave Dilaudid[5] 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[6] 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.[7] (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 at 276-78.)

         {¶ 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 239-42.

         {¶ 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 ...

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