Baltzer v. Ohio Department of Rehabilitation & Correction

644 N.E.2d 737, 67 Ohio Misc. 2d 18, 1993 Ohio Misc. LEXIS 104
CourtOhio Court of Claims
DecidedApril 19, 1993
DocketNo. 91-07119
StatusPublished
Cited by1 cases

This text of 644 N.E.2d 737 (Baltzer v. Ohio Department of Rehabilitation & Correction) is published on Counsel Stack Legal Research, covering Ohio Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baltzer v. Ohio Department of Rehabilitation & Correction, 644 N.E.2d 737, 67 Ohio Misc. 2d 18, 1993 Ohio Misc. LEXIS 104 (Ohio Super. Ct. 1993).

Opinion

Russell Leach, Judge.

On October 26,1992, this action came before the court for trial on the sole issue of liability. Plaintiff, Mary Ann Baltzer, filed this wrongful death action in her capacity as the administrator of the estate of her son, Bruce N. Baltzer (“Baltzer”), against defendant Department of Rehabilitation and Correction.

Plaintiff alleges that Baltzer’s death was the result of the medical negligence of the prison physician, English Weston, M.D. (“Dr. Weston”), in failing to adequately intervene, treat, and medicate Baltzer’s asthmatic condition. Defendant denies that it was negligent and asserts that plaintiffs decedent’s own actions and inactions were the proximate cause of his death. The court, having considered the evidence and arguments of counsel, renders the following decision.

At the time of his death, plaintiffs decedent was an inmate in the custody and control of defendant pursuant to R.C. 5120.16 at the Lebanon Correctional Institution. On June 20, 1990, at approximately 2:30 a.m., plaintiffs decedent experienced trouble breathing, presumably as a result of an asthma attack. In response, inmate Thomas Harris, Baltzer’s cellmate, summoned Corrections [20]*20Officers (“C.O.”) Garth Feltner and Martin Kinsworthy for assistance. Upon arriving at the cell, C.O. Feltner was asked by Baltzer to obtain a Proventil inhaler from the prison infirmary. C.O. Feltner proceeded to the infirmary, where he was given an inhaler from Nurse Denise Lewis. Baltzer had a current prescription for the inhaler. C.O. Feltner immediately returned to Baltzer’s cell, where he gave Baltzer the inhaler.

At this time, C.O. Kinsworthy asked Baltzer if he wanted to go to the infirmary for breathing treatment. Baltzer stated that all he needed was the inhaler and refused to go to the infirmary. Inmate Harris testified that Baltzer appeared to be relieved of any breathing problems after using the inhaler. Both C.O. Feltner and C.O. Kinsworthy testified that Baltzer was coherent and did not exhibit any unusual behavior during their conversation.

At 6:30 a.m., C.O. Nathan Briner, Jr. conducted the morning count for K-block, where Baltzer was housed. C.O. Briner testified that Baltzer was sitting Indian style on his bunk bed at count time. At approximately 6:50 a.m., inmate Harris called C.O. Briner to the cell to check on Baltzer, who was still sitting on his bunk bed, but slumped over. At this time, C.O. Briner discovered that Baltzer was cold and was not exhibiting a pulse. C.O. Briner initiated a “Code 1” emergency alert at approximately 6:55 a.m. The trauma team was alerted and responded at 6:58 a.m. Baltzer was subsequently pronounced dead at the scene by Dr. Weston.

This cause of action was brought pursuant to Ohio’s wrongful death statute, R.C. 2125.01. More specifically, plaintiffs claim for a right to relief sets forth an action sounding in medical negligence. Plaintiff alleges that defendant, acting by and through its employees and agents, deviated from the accepted standards of medical care in its treatment of plaintiffs decedent.

Plaintiff bears the burden of proving by a preponderance of the evidence that defendant, through its agents, owed a duty to Baltzer, that there was a breach of the duty, and that the breach was a direct and proximate cause of his death. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 21 O.O.3d 177, 423 N.E.2d 467. Owing to the complexity of the cause and effect relationship, in a medical negligence case such breach can only be proven by a presentation of expert testimony. As set forth in Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 75 O.O.2d 184, 346 N.E.2d 673, paragraph one of the syllabus:

“In order to establish medical malpractice, it must be shown by a preponderance of evidence that the injury complained of was caused by the doing of some particular thing or things that a physician or surgeon of ordinary skill, care and diligence would not have done under like or similar conditions or circumstances, or by the failure or omission to some particular thing or things that such a [21]*21physician or surgeon would have done under like or similar conditions and circumstances, and that the injury complained of was the direct and proximate result of such doing or failing to do some one or more of such particular things.”

In the case at bar, the court had the benefit of outstanding expert witnesses. There was considerable testimony from the medical experts as to what treatment a physician of ordinary skill, care and diligence should have administered to evaluate and treat the medical problems experienced by Baltzer.

Plaintiffs expert, Dr. Bernard Master, offered the opinion that to a reasonable degree of medical certainty, Dr. Weston failed to properly manage Baltzer’s asthmatic condition, which directly and proximately resulted in his death from an asthma attack on June 20, 1990. More specifically, Dr. Master testified that Dr. Weston deviated from acceptable community standards of care by failing to prescribe the proper dosages of theophylline and Prednisone to control Baltzer’s asthma. Additionally, Dr. Master testified that Dr. Weston failed to monitor the unrestricted use of the Proventil inhaler prescribed to Baltzer. Finally, Dr. Master testified that Dr. Weston failed to intervene during Baltzer’s episodes of progressive and continuous respiratory distress.

Defendant’s expert, Dr. Kevin Merigian, rendered his expert opinion that, within a reasonable degree of medical certainty, Baltzer ingested heroin on June 20, 1990, which metabolized into morphine and depressed his respiratory system and clouded his judgment to such a degree that he did not seek medical attention even though he was apparently suffering from an asthma attack that had the potential of becoming fatal. Dr. Merigian further testified that Baltzer’s death from the asthma attack on June 20, 1990, was a direct result of his failure to seek medical assistance.

Additionally, the parties stipulated into evidence the postmortem pathological examination report performed by Dr. Robert Pfalzgraf, Deputy Coroner of Hamilton County. Dr. Pfalzgraf indicated in his report that it was his opinion that the cause of Baltzer’s death was asthma. Furthermore, the report indicated that 80 ng/ml (nanogram per milliliter) of morphine and a trace amount of theophylline were present in Baltzer’s blood at the time of the examination. Consequently, Dr. Pfalzgraf concluded that the presence of morphine may have contributed to Baltzer’s death.

The parties also stipulated into evidence the results of postmortem blood test reports by the National Medical Services, Inc. (“NMS”) and the Mayo clinic (“Mayo”). The NMS report indicated a theophylline level of 2.7 mcg/ml, and that optimum bronchodilator response is achieved at serum theophylline levels ranging from 10 to 15 mcg/ml, although there is considerable intersubject variation. The NMS report further indicated that the postmortem level of Albuterol, the medication contained in Proventil inhalers, was 3.0 ng/ml and that such level is [22]*22more than twice the amount of the peak plasma concentrations of 0.6 to 1.4 ng/ml attained after inhalation. The NMS report also indicated a morphine level of 34 ng/ml. The Mayo report indicated that no Prednisone was found in the blood specimen of Baltzer.

There is no dispute that Baltzer died due to an acute exacerbation of asthma.

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644 N.E.2d 737, 67 Ohio Misc. 2d 18, 1993 Ohio Misc. LEXIS 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baltzer-v-ohio-department-of-rehabilitation-correction-ohioctcl-1993.