Newell v. Ohio Dept. of Rehab. & Corr.
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[Cite as Newell v. Ohio Dept. of Rehab. & Corr., 2005-Ohio-7111.]
IN THE COURT OF CLAIMS OF OHIO
www.cco.state.oh.us
TIMOTHY NEWELL
:
Plaintiff
:
v.
:
CASE NO. 2002-06880
Judge J. Craig Wright
Magistrate Steven A. Larson
:
MAGISTRATE DECISION
OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION
:
Defendant
: : : : : : : : : : : : : : : : :
{¶ 1} Plaintiff brought this action against defendant, Grafton
Correctional Institution, alleging medical negligence.
The issues
of liability and damages were bifurcated and the case proceeded to
trial on the issue of liability before a magistrate of the court on
April 13, 2004, and reconvened on November 4, 2004, for the
testimony of additional witnesses.
{¶ 2} At all times relevant hereto, plaintiff was an inmate in
the custody and control of defendant pursuant to R.C. 5120.16.
Plaintiff was prescribed the hormone Depo-Provera, which is used to
decrease the frequency of intrusive and disturbing sexual thoughts.
Plaintiff alleges that he suffered a loss of vision in his right
eye in July or August 2001, after he developed a blood clot in a
blood vessel of his eye as a direct result of receiving injections
of Depo-Provera every 70-90 days beginning in June 2000.
further
alleges
that
the
possible
formation
of
Plaintiff
blood
clots
(thromboembolism) was a recognized complication of Depo-Provera
use.
According to plaintiff, his treating psychiatrist, Dr.
Woyshville, failed to inform him of the risk of developing a blood
clot and did not provide him with a complete list of possible side
Case No. 2002-06880
effects of the drug.
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MAGISTRATE DECISION
Plaintiff insists that had he received such
information, he would not have consented to its administration.
{¶ 3} Defendant denies liability and asserts that its employee,
Dr. Woyshville, met the standard of care informing plaintiff of the
risks associated with Depo-Provera.
Defendant also maintains that
plaintiff failed to prove that the administration of Depo-Provera
caused the vein occlusion which led to his injury.
{¶ 4} To establish a claim of medical malpractice, plaintiff
“must show the existence of a standard of care within the medical
community, breach of that standard of care by the defendant, and
proximate cause between the medical negligence and the injury
sustained.”
Taylor v. McCullough-Hyde Memorial Hospital (1996),
116 Ohio App.3d 595, 599, citing Bruni v. Tatsumi (1976), 46 Ohio
St.2d 127, 131-132.
These elements must be established by expert
testimony unless the negligent conduct “is so apparent as to be
within
the
comprehension
of
laymen
and
requires
only
common
knowledge and experience to understand and judge it ***.”
Bruni,
supra, at 130.
{¶ 5} In addition, the elements necessary to show failure of
informed consent were set forth by the Supreme Court of Ohio in
Nickell v. Gonzalez (1985), 17 Ohio St.3d 136 at the syllabus, as
follows:
{¶ 6} “The tort of lack of informed consent is established when:
{¶ 7} “(a) The physician fails to disclose to the patient and
discuss the material risks and dangers inherently and potentially
involved with respect to the proposed therapy, if any;
{¶ 8} “(b) The unrevealed risks and dangers which should have
been disclosed by the physician actually materialize and are the
proximate cause of the injury to the patient; and
Case No. 2002-06880
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MAGISTRATE DECISION
{¶ 9} “(c) A reasonable person in the position of the patient
would have decided against the therapy had the material risks and
dangers inherent and incidental to treatment been disclosed to him
or her prior to the therapy.”
{¶ 10}
(Emphasis added.)
Plaintiff claims that Dr. Woyshville was negligent
because he did not fully disclose each and every possible effect of
the drug known or listed by the manufacturer.
According to
plaintiff, defendant’s medical personnel informed him that the drug
could cause elevated blood pressure, testicular atrophy, breast
enlargement, and weight gain.
Dr. Woyshville testified that he
discussed the risks and benefits to plaintiff in detail, that
plaintiff conveyed his understanding and acceptance, and that such
discussions were documented in his medical records.
Further, Dr.
Woyshville noted that plaintiff was very informed about the drug
inasmuch as plaintiff had completed his own independent research.
According to Dr. Woyshville, plaintiff was aware of the risk of
thromboembolism
and
agreed
to
take
Vitamin
E
supplements
to
minimize such risk.
{¶ 11}
In addition, testimony was presented by plaintiff’s
treating optometrist, Bradd Haney, and by Allison Robinson, M.D.
Haney acknowledged that plaintiff suffered a blood clot to a vein
in his right eye, but he was unable to render an opinion as to the
cause of the occlusion.
Dr. Robinson stated that he was not
qualified to render an opinion whether the use of Depo-Provera was
the proximate cause of hemorrhage in plaintiff’s right eye. Dr.
Robinson did testify that in order to provide informed consent
regarding a medication, a physician should divulge the most common
and major side effects of the drug; however, he maintained that it
Case No. 2002-06880
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MAGISTRATE DECISION
would be nearly impossible to list all known side effects and risks
on a single written form.
{¶ 12}
Upon review of the testimony and evidence presented on
this issue, the court finds that plaintiff failed to meet his
burden of proof.
with
the
Dr. Woyshville stated that he not only complied
standard
of
consent, he exceeded it.
care
for
physicians
providing
informed
Plaintiff did not present the testimony
of any physician to rebut Dr. Woyshville’s statements as to the
prevailing standard of care.
Plaintiff also did not produce expert
testimony that administration of Depo-Provera directly caused the
vascular incident which reduced the sight in plaintiff’s right eye.
In addition, to the extent that plaintiff implied that his
medical condition is such that only common knowledge and experience
are needed to understand it, the court disagrees.
The testimony
and evidence referenced such complex medical issues as androgen
aversion therapy, retinal vein occlusion and thrombo-embolitic
events.
{¶ 13}
Based upon the totality of the evidence, the court
concludes that plaintiff failed to prove that the medical treatment
provided to him fell below the standard of care in the medical
profession.
The court further finds that defendant disclosed the
material risks associated with Depo-Provera prior to obtaining
plaintiff’s consent and that the content of such disclosure met the
standard of care for physicians and psychiatrists in the community.
Consequently, the court finds that plaintiff has failed to prove
his claims by a preponderance of the evidence and, accordingly,
judgment is recommended in favor of defendant.
{¶ 14}
A party may file written objections to the magistrate’s
decision within 14 days of the filing of the decision.
A party
Case No. 2002-06880
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MAGISTRATE DECISION
shall not assign as error on appeal the court’s adoption of any
finding or conclusion of law contained in the magistrate’s decision
unless the party timely and specifically objects to that finding or
conclusion as required by Civ.R. 53(E)(3).
________________________________
STEVEN A. LARSON
Magistrate
Entry cc:
Timothy Newell, #153-518
2500 South Avon-Belden Road
Grafton, Ohio 44044
Plaintiff, Pro se
James P. Dinsmore
Assistant Attorney General
150 East Gay Street, 23rd Floor
Columbus, Ohio 43215-3130
Attorney for Defendant
SJM/cmd
Filed December 19, 2005
To S.C. reporter January 11, 2006
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