Opinion
No. 88-04449.
Decided August 11, 1989.
Robert S. Mills, for plaintiff Vanessa Clark.
Anthony J. Celebrezze, Jr., Attorney General, and Jordon Finegold, for defendant.
On April 11, 1988, the plaintiff pro se filed a complaint in this court, followed by an amended complaint filed on June 7, 1988 by the Ohio Legal Rights Service on plaintiff's behalf. (Ohio Legal Rights Service filed a notice of appearance on May 24, 1988.) The plaintiff seeks monetary damages for injuries suffered as a result of the alleged tortious acts of the defendant, the Ohio Department of Mental Health. On December 15, 1988, defendant filed a counterclaim regarding the costs involved in plaintiff's residing at defendant's facility. This cause came on for trial on June 26, 1989. The parties presented evidence, testimony and arguments as to the facts and issues involved herein. Upon consideration of the record, the court renders the following decision.
The plaintiff was a patient at the Western Reserve Psychiatric Rehabilitation Center at the time pertinent hereto and is presently residing at the facility. The institution is operated by the state of Ohio and is under the control of the Ohio Department of Mental Health.
Plaintiff alleges, in essence, that defendant was negligent in rendering improper psychiatric care, including improper diagnosis, unsuitable drug therapy, inappropriate bodily restraint, and causing her to contract a disease known as Tardive Dyskinesia. Tardive Dyskinesia ("T.D.") is a side effect of psychiatric medication characterized by involuntary movements of the tongue, face, mouth, jaw or extremities.
The plaintiff has the burden to show by a preponderance of the evidence that defendant was negligent under the circumstances. It is accepted in Ohio that the essential elements of negligence are: (1) a duty of care owing to the plaintiff; (2) a breach of that duty by a negligent act or omission; and (3) an injury proximately resulting from such breach. 70 Ohio Jurisprudence 3d (1986) 46, Negligence, Section 9; Di Gildo v. Caponi (1969), 18 Ohio St.2d 125, 47 O.O.2d 282, 247 N.E.2d 732.
The testimony offered at trial demonstrates that plaintiff's desire to smoke cigarettes was a precipitating factor to the circumstances leading to plaintiff's allegations. Plaintiff had been responsible for a couple of small fires in the past, in and out of the facility, and, with reason, the facility's personnel demonstrated caution when the plaintiff chose to light a cigarette. The plaintiff testified that, although she did not always have matches, she discovered various other methods in which to light a cigarette. When she was found smoking, a confrontation ensued and defendant's personnel would take extreme measures to punish her, such as placing the plaintiff in restraints.
Dr. Stanley R. Platman, plaintiff's medical expert, is a psychiatrist and is also involved in the evaluation of mental health systems or organizations. He interviewed the plaintiff and reviewed documentation including her medical progress notes and hospital records. Dr. Platman testified that the aforementioned confrontations did not, in reality, have anything to do with the defendant's diagnosis of plaintiff, nor were they due to the issue of plaintiff's smoking; rather, the problems encompassed the personality differences experienced between plaintiff and defendant's staff. Dr. Platman testified that plaintiff's medical treatment was consistently the same and was limited in nature, and that defendant failed to utilize various modes of treatment, including its failure to explore therapeutic responses from different drugs to improve plaintiff's overall health. In essence, the treatment rendered by defendant remained static for years and a proper diagnosis was not evident. Dr. Platman testified that had defendant properly diagnosed plaintiff, this diagnosis would have produced a clear therapeutic picture to enable plaintiff's health improvement.
Dr. Platman stated that defendant breached the standard of care in this regard because various methods of treatment should have been explored, such as attempting more meaningful counseling, trying different medications and discussing plaintiff's problems with consultants; he formulated the opinion that plaintiff basically lived in an ineffectual environment. He testified that the records indicated that plaintiff was placed in restraints (straps) and placed in seclusion on a number of occasions and that such action was not appropriate nor productive. The restraints were basically a desperate move to make plaintiff comply with the defendant's staff's wishes and were nothing more than punishment — not treatment. In addition, Dr. Platman was of the opinion that the psychotropic medication provided to plaintiff has caused her to experience T.D. which, as aforementioned, is involuntary tremors of parts of one's body due to a central nervous system dysfunction. He indicated, however, that plaintiff exhibits minimal signs of T.D. and that it may disappear in the future, but it is difficult to predict the likelihood of its continuation.
Defendant's expert witness, Dr. Michael Knowlan, a psychiatrist, examined plaintiff's medical records, interviewed plaintiff, and reviewed Dr. Platman's report and deposition. Dr. Knowlan stated that defendant's treatment of plaintiff was proper under the circumstances, in view of the fact that plaintiff was basically an uncooperative patient, and that a diagnosis was established, to wit: schizophrenia, exhibiting delusional patterns of thought. Dr. Knowlan opined that plaintiff had thoughts of grandeur and that she thought she did not have to follow the facility rules. He stated that defendant attempted to meet the psychiatric needs of plaintiff and that the treatment and psychotropic medications provided to plaintiff were within reason and not a breach of the standard of care.
Dr. Knowlan testified that plaintiff's actions in pursuing her smoking habit posed a danger to herself and others due to the potential risk of fire. Therefore, he believed the restraints and subsequent seclusion methods utilized by defendant were necessary and proper under the circumstances. Dr. Knowlan also stated that his examination of plaintiff did not reveal that she has experienced T.D.
The standard of care pertaining to a medical malpractice action has been enunciated by the Ohio Supreme Court in the following manner:
"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 do some particular thing or things that such a physician 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." Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 75 O.O.2d 184, 346 N.E.2d 673, paragraph one of the syllabus. See, also, 67 Ohio Jurisprudence 3d (1986) 30, Malpractice, Section 20.
In essence, plaintiff has alleged that defendant has been negligent in failing to render a proper diagnosis and, as a ramification thereof, failed to utilize alternative treatment approaches. It is evident that the defendant owes the plaintiff a duty of proper care under the circumstances.
Upon review of the evidence, including plaintiff's voluminous medical records, and the testimony of the aforementioned experts and various other documents, the court finds that defendant did not fail to render a diagnosis or omit to act in a proper manner in accordance with the diagnosis. It is apparent that the plaintiff was not extremely cooperative with defendant's agents, but the evidence shows that in spite of the personality dynamics of the parties involved, the various treatment plans were appropriately rendered, including the utilization of psychotropic medications, and that defendant has attempted to meet the psychiatric needs of plaintiff. It is the opinion of the court that the psychiatric treatment rendered to plaintiff fell within the acceptable limits of medical care and, thus, defendant did not fail or omit to do an act which another health care facility would have done under the same or similar circumstances.
In regard to plaintiff's claim that the defendant was negligent in providing psychotropic drugs to her that were improper or failed to aid in her treatment and subsequently caused T.D., the court finds that the plaintiff has not met her burden of proof. A clinical examination performed by Dr. Knowlan revealed that the plaintiff does not experience T.D. There is a lack of evidence to show that plaintiff has encountered said disease or, arguendo, that defendant's actions caused plaintiff to experience this dysfunction. The court finds that the totality of the evidence does not show that plaintiff has proven this aspect of her complaint.
As aforementioned, the defendant's staff utilized restraints and seclusion as methods to, in essence, prevent plaintiff from smoking or to assist her in understanding the rules regarding her uncooperative behavior. The record reflects that plaintiff was placed in seclusion or bound by restraints on numerous occasions. It is apparent that the plaintiff places a high value on smoking and has gone to extremes to fulfill her habitual needs. In view that she has had a history of starting fires, the defendant's staff acted with extreme measures to ensure that her smoking habit did not continue. The defendant contends that the restraints were required to stop the plaintiff from smoking; the plaintiff asserts that the restraints acted as punishment and were directly related to the personality problems experienced between plaintiff and defendant's staff.
The preface to the defendant's written "Seclusion/Restraint Policy" states:
"The use of seclusion and/or restraint of a patient shall be clinically justified and shall be employed only to prevent a patient from injuring himself or others or to prevent serious disruption of the therapeutic environment.
"Seclusion and/or restraint shall not be employed as a punitive response to the patient's behavior, as a convenience to the staff, a mechanism to produce regression or as a technique of aversive conditioning.
"Seclusion and restraint are methods of external control which shall be initiated only after attempts to enable the patient to gain control of his own behavior have been made. Less restrictive measures, such as verbal and environmental interventions or the use of medication, are prerequisite to the decision to seclude or restrain."
Upon review of the record, the court finds that defendant breached its duty of care in this situation: plaintiff was placed in restraints on a number of occasions as a punitive response and in situations where a less restrictive measure could have been utilized. She was bound in restraints and placed in seclusion for extended periods of time for reasons which did not justify such actions. The record demonstrates that such methods of intervention were not always clinically justified; in addition, the court is of the opinion that the restraints were not always employed to prevent plaintiff from injuring herself or others or to prevent serious disruption of the therapeutic environment. Therefore, the court finds that the plaintiff's claim based on this contention is well-taken.
The court recognizes the plaintiff's claim and the defendant's infraction, but the court finds that plaintiff has not shown any substantial damages due to the incidents involved and believes that nominal damages are appropriate in this situation.
"Nominal damages are those damages recoverable where a legal right is to be vindicated against an invasion that has produced no actual loss of any kind, or where from the nature of the case some injury has been done, the amount of which the proof fails to show. The law infers some damage from the breach of an agreement, or the invasion of a right, and if no evidence is given of any particular amount of loss, it declares the right by the award of what it terms "nominal damages," being some small sum of money. Nominal damages are, in some cases, awarded to prevent a wrong from transmuting into a right by lapse of time. Such damages rest solely in the discretion of the jury, and may be simply some nominal amount. However, it is usual where nominal damages are awarded, to fix the amount at one dollar." (Footnote omitted.) 30 Ohio Jurisprudence 3d (1981) 13, Damages, Section 2.
Accordingly, the court awards the plaintiff nominal damages in the amount of one dollar.
The court has considered the defendant's counterclaim for a judgment for the cost incurred to support, care and provide treatment to the plaintiff while residing in said facility. Without further comment, the court finds that defendant's claim is not well-taken and is hereby denied.
In conclusion, the court finds that plaintiff's complaint is not well-taken in all respects, except her allegations pertaining to her improper restraint and seclusion. Therefore, judgment shall be rendered in favor of the plaintiff and against the defendant for damages in the amount of one dollar.
Judgment accordingly.
RUSSELL LEACH, J., retired, of the Franklin County Municipal Court, sitting by assignment.