Opinion
2019-00747JD
06-01-2021
CYNTHIA STARLING, Indv, etc. Plaintiff v. OHIO DEPARTMENT OF DEVELOPMENTAL DISABILITIES Defendant
Sent to S.C. Reporter 8/16/21
DECISION
DALE A. CRAWFORD Judge
I. Introduction
{¶1} Plaintiff Cynthia Starling brings a wrongful death action against Defendant Ohio Department of Developmental Disabilities (ODDD). Cynthia Starling maintains that ODDD's actions proximately caused the death of her son, Nicholas (Nick) Starling, who passed away on June 28, 2018 while he was in the care of Warrensville Developmental Center (WDC), an intermediate care facility operated by ODDD. Starling presents claims of (1) negligence stemming from WDC's physical restraint of Nick, which resulted in injury to Nick's leg, (2) battery, as an alternative to the negligence claim, (3) medical negligence arising from WDC's nursing staff's purported failure to properly care for Nick after Nick became injured, and (4) wrongful death stemming from WDC's alleged negligence, battery, and medical negligence. The matter proceeded to a bench trial. The Court concludes that Cynthia Starling has not proven her claims by a preponderance of the evidence for reasons set forth below.
II. Factual Background
{¶2} A series of "unexpected, unfortunate, " and tragic events culminated in the death of Nick Starling-a loved and caring young person. Starling, a 28-year-old man, came to WDC with a somewhat checkered history. He was developmentally disabled since birth and diagnosed with an impulse control disorder, paranoia, schizophrenia, and autism. Starling was brought to WDC on April 13, 2018 as a voluntary, short-term admission while the Cuyahoga County Board of Developmental Disabilities sought a placement for him. An initial social history of Nick, which was taken at WDC, notes that Nick "had been in and out of the hospital and nursing home facilities since November 2017 due to his aggressive and destructive behaviors" and that Cynthia Starling had recently become Nick's guardian. (Plaintiffs Exhibit 1-47.)
Testimony of Dr. Michael Yaffe.
{¶3} Staff at WDC created a resident plan entitled "My Individual Plan," just as WDC staff did with all residents. Nick's Plan set forth "Potential Risk" as "Physical Aggression" and "What the risks look like" as "kicking, hitting, punching, throwing/breaking items, destroying property, biting." The Plan provided:
How best to support me - Immediately prompt Nicholas to stop the behavior and verbally redirect him to a calming area/activity. If this behavior continues and presents an imminent risk to health and safety (e.g. causing bodily harm; creating an unsafe environment for himself and others; emotional trauma; damage to property; being charged with Vandalism, Criminal Damaging, etc.) staff should utilize any approved manual restraints (Escort, Bearhug, Basket hold) per the Positive Behavior Supports and Crisis Intervention (PBS-CI) protocol to protect the safety of him and others. If he needs to be manually restrained, the restraint should be discontinued as soon as he is calm and no longer presents an imminent risk to health and safety. Once calm, staff should suggest to him that he goes to a quiet area to further calm and/or engage in a positive/functional activity.(Defendant's Exhibit A.) All staff members who had contact with Nick were required to know Nick's Plan and were required to know that the WDC policy of restraint for Nick, and other residents, did not authorize physical restraint in the absence of an imminent risk to health or safety, or both.
{¶4} On June 24, 2018, Dionte Baskerville-a therapeutic program worker (TPW)- physically restrained Nick by using a Bear Hug technique. A security video of the incident-which does not contain audio-captured the event, as well as the events that led to Baskerville's intervention. Around 1:11 p.m., after a TPW did not allow Nick to look at a book that the TPW wrote in, Nick became upset at the TPW, left the dining room, and went to a hallway. Baskerville followed Nick into the hallway. Nick appears to shove or punch Baskerville. And Nick is seen yelling at Baskerville and wagging his finger at Baskerville. Nick then goes to an entertainment room, where Nick overturns a trash can. Nick then repeatedly throws games across the room and Baskerville backs away. Baskerville repositions himself. Nick throws two games toward Baskerville. Nick returns to the dining area where there are two other TPWs and a WDC resident. A TPW escorts the resident out of the dining room. Nick is seen throwing items in the dining room, including a toaster, and a chair, which Nick throws in the vicinity of Baskerville. Baskerville follows Nick, while another TPW is seen using a phone. Nick throws more objects, including what appears to be a potted plant. Nick also throws what appears to be papers toward Baskerville. At about 1:15 p.m., Baskerville attempts to use a single-person Bear Hug to restrain Nick. Nick breaks free and Baskerville again attempts to restrain Nick. Baskerville and Nick fall to the ground, with Nick falling awkwardly. At about 8:15 p.m., at the request of staff, Tammy Tayman, R.N., a WDC nurse, was asked to evaluate Nick's right leg because Nick's leg reportedly seemed swollen and Nick did not want to walk. Tayman determined that Nick's leg appeared "slightly edematous" (Plaintiff's Exhibit 1-55) and Tayman contacted Dr. Gary Greenspan (a physician hired by ODDD to provide medical care to residents at WDC). Dr. Greenspan ordered an x-ray, and the nurse arranged to have a mobile x-ray performed on the morning of June 25, 2018.
{¶5} On June 25, 2018, WDC staff brought Nick to a hospital where Nick was found to have a tibial plateau fracture. After Nick was evaluated, he was provided with a knee immobilizer and Discharge Instructions. The Discharge Instructions noted:
Please check the patient's pedal pulse every 4 hours for the next 24 hours. Plassively dorsiflex and plantarflex his foot and check for severe pain with these movements. Have the patient wiggle his toes every 4 hours for the next 24 hours. If any of these are abnormal, please bring the patient back to the ED immediately. These may be early signs of compartment syndrome. The patient can have tylenol and ibuprofen as needed for pain.
YOU SHOULD SEEK MEDICAL ATTENTION IMMEDIATELY, EITHER HERE OR AT THE NEAREST EMERGENCY DEPARTMENT, IF ANY OF THE FOLLOWING OCCURS:
Severe increase in pain or swelling in the injured area.
New numbness or tingling in or below the injured area.
Your foot gets cold and pale. This could mean that the foot has a problem with its blood supply.(Plaintiffs Exhibit, 7-4, 7-7.)
{¶6} When Nick Starling returned to WDC, Robbin Fletcher, LPN prepared a Nursing Plan. (Plaintiffs Exhibit 1-56.) Fletcher noted in the Nursing Plan that all of Nick's previous medications should be resumed and that Motrin and Acetaminophen may be used for pain. Fletcher also noted that Nick was "to keep splint /immobilizer on at all times until seen by ortho. It can be removed for a shower if Individual is sitting in a shower chair then [splint] is reapplied. No weight bearing to right leg at this time. May use crutches for standing." And Fletcher noted that general fracture care "includes pain medicine and the use of splint/cast to reduce movement. It also includes resting, icing and elevating the injured body part." Fletcher further noted, "Call clinic if increase in pain or swelling in the injured area, numbness or tingling in or below the injured area or it the foot gets cold or discolored. It is advised to have Individual as a 1:1 or Q 15min checks until seen by ortho."
{¶7} After Nick returned from the hospital, several WDC nurses saw Nick, the nurses checked Nick's leg, and the nurses in their notes did not indicate increased swelling in Nick's leg. Nick initially wore the knee immobilizer, as prescribed, but later Nick refused to wear it. A nursing note dated June 27, 2018 indicates that Nick would not wear his brace because he indicated that it "hurts," and he refused pain medication when it was offered to him. (Plaintiff's Exhibit, 1-60.) The nursing note of June 27, 2018 indicates that Nick's pedal pulse was checked, Nick was able to move his toes, and that there did not appear to be any sign of distress. And, according to the deposition testimony of Kelly Marenkovic, R.N., a WDC nurse who cared for Nick on June 27, 2018, if there had been obvious swelling on visual inspection, she would have noted such a condition. (Marenkovic Deposition, at 13 (March 18, 2021).)
The nursing note of June 27, 2018 indicates a time of 6:20 p.m., but evidence elicited at trial suggests that the note was written at 6:20 a.m.
{¶8} On June 28, 2018, WDC staff found Nick to be unresponsive in his room when staff checked on him in the morning. Nick later was taken to a hospital where he was pronounced dead. Nick's death was later determined to have resulted from a "pulmonary artery thromboemboli" due to "deep vein thromboses of right lower extremity" due to "right tibia fracture." (Death Certificate, Plaintiff's Exhibit 4-1.)
III. Analysis
{¶9} Cynthia Starling is required to establish her claims of negligence, battery, medical negligence, and wrongful death by a preponderance of the evidence. See Weishaar v. Strimbu, 76 Ohio App.3d 276, 282, 601 N.E.2d 587 (8th Dist.1991). A preponderance of the evidence "is defined as that measure of proof that convinces the judge or jury that the existence of the fact sought to be proved is more likely than its nonexistence." State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, ¶ 54. The Court, as the trier-of-facts in this case, is free to give weight to the evidence and the Court also is free to believe all, part, or none of the testimony of the witnesses. See State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus; State v. Green, 10th Dist. Franklin No. 03AP-813, 2004-Ohio-3697, ¶ 24.
{¶10} The Ohio Supreme Court has explained, "It is well settled that the elements of an ordinary negligence suit between private parties are (1) the existence of a legal duty, (2) the defendant's breach of that duty, and (3) injury that is the proximate cause of the defendant's breach." Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 22, citing Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989). As to Plaintiff's claim of negligence, the specific applicable standard is set forth in the Ohio Department of Developmental Disabilities "Positive Support and Principles Manual" at p. 2 (Plaintiff's Ex. 3-3):
Intervention
Intrusive interventions are only to be used when an immediate risk to safety is present and the intervention is identified as a necessary intervention in an approved (e.g. IPP Team, BSC, and Human Rights Committee) Person Centered Plan, or there is an immediate crisis. Support Strategies shall be a creation of supportive environments that enhance the individual's quality of life.
Positive supports are the foundation for all supports. Restraint is avoided whenever possible, but at times, it may become necessary to stop an immediate risk to the individual or others. Verbal redirection and moving out of the way should always be used first.
***(Plaintiff's Exhibit 3-4, 6.)
It is agreed by the parties that the "Intervention" standard set forth herein is the standard of care to be applied in the case.
{¶11} Cynthia Starling maintains that Baskerville's physical restraint of Nick Starling violated WDC policy, thereby breaching a duty of care, because Baskerville physically restrained Nick in the absence of immediate bodily harm to another WDC resident or WDC staff member. A violation of internal rules or policy may be used to support a claim for negligence, but a violation of internal rules or policy does not support a cause of action by itself. See O'Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, ¶ 92 (concluding that, without evidence of an accompanying knowledge that a violation will in all probability result in injury, evidence that policies have been violated demonstrates negligence at best); Burse v. Ohio Dept. of Rehab. & Correction, 10th Dist. Franklin No. 17AP-452, 2019-Ohio-2882, ¶ 11. Therefore, even if Baskerville violated WDC policy when he physically restrained Nick, such a violation by itself is insufficient to establish negligence.
{¶12} Starling agrees in her post-trial brief that the physical restraint component of this case must be evaluated in accordance with the following standard:
In deciding whether Mr. Baskerville had reasonable grounds to believe that Mr. Starling's actions would lead Mr. Baskerville to believe that there was an imminent threat of safety to Mr. Starling and/or others, you must put yourself in his position with his knowledge of Mr. Starling and the conditions that surrounded him at the time he used the force. You must consider the conduct of Mr. Starling and decide if his acts or words caused Mr. Baskerville to reasonably and honestly to believe that there was an imminent threat of physical harm to himself, Mr. Starling, and/or others.(Plaintiffs Post-Trial Brief, 1-2).
{¶13} Plaintiff maintains in her post-trial brief that the operative legal standard-whether TPW Dionte Baskerville "reasonably and honestly" believed Nick Starling posed "an imminent threat of physical harm"-comprises both an objective and a subjective element. See, e.g., State v. Stevenson, 10th Dist. Franklin No. 17AP-512, 2018-Ohio-5140, ¶ 42 (noting that the second prong of a self-defense claim is a combined subjective and objective test and self-defense "is justified 'on the grounds of the bona fides of defendant's belief, and reasonableness therefor, and whether, under the circumstances, he exercised a careful and proper use of his own faculties.' State v. Sheets, 115 Ohio St. 308, 310, 4 Ohio Law Abs. 394, 152 N.E. 664, 24 Ohio L. Rep. 480 (1926)").
{¶14} The security video shows that Nick threw multiple objects at Baskerville or, in the vicinity of Baskerville, before Baskerville physically intervened. Because the video lacks audio, the video by itself does not fully depict the totality of the circumstances (e.g., what verbal threats, if any, Starling may have made despite the staffs attempts to deescalate the situation), which, in turn, implicates whether Baskerville reasonably and honestly believed that Nick Starling's actions constituted an imminent threat of safety to Starling, Baskerville, or others to warrant the use of physical restraint. Notably, Baskerville acknowledged-and the video shows-that Nick's erratic behavior persisted, despite staff's attempts to calm Nick. (Baskerville Deposition, 78-79.) And, in Baskerville's view, he had tried every other avenue of deescalating the situation before he chose to use physical restraint. (Baskerville Deposition, 64.)
{¶15} After weighing the submitted evidence, as well as the credibility of the witnesses, the Court finds that Dionte Baskerville had reasonable grounds to believe that Nick Starling's actions constituted an imminent threat of safety to Starling, Baskerville, or others based on Baskerville's knowledge of Nick Starling and the conditions at the time that Baskerville decided to use physical restraint. The Court determines that, based on the submitted evidence, Cynthia Starling has not proven by a preponderance of the evidence that WDC should be held liable based on a claim of negligence as to Baskerville's physical restraint of Nick Starling.
{¶16} Cynthia Starling asserts, as an alternative claim, that WDC committed the tort of battery. The Ohio Supreme Court has explained that a person "is subject to liability for battery when he acts intending to cause a harmful or offensive contact, and when a harmful contact results." Love v. City of Port Clinton, 37 Ohio St.3d 98, 99, 524 N.E.2d 166 (1988), citing Restatement of the Law 2d, Torts (1965) 25, Section 13. See Estill v. Waltz, 10th Dist. Franklin No. 02AP-83, 2002-Ohio-5004, ¶ 20 ("[a] person need not intend the harmful result; to intend the offensive contact that causes the injury is sufficient"). The Ohio Supreme Court has stated, "Contact which is offensive to a reasonable sense of personal dignity is offensive contact." Love at 99.
{¶17} Based on the evidence submitted, the Court determines that Cynthia Starling has not proven by a preponderance of the evidence that Baskerville intended to cause a harmful or offensive contact when he attempted to restrain Nick. Notably, the submitted evidence shows that Cynthia, as Nick's guardian, gave permission to WDC to use physical restraint in its care of Nick.
{¶18} Cynthia Starling asserts that WDC's nursing care of Nick constituted medical negligence because nursing staff failed to act within the nursing standard of care. Starling claims that nursing staff failed to adequately assess swelling in Nick's leg after Nick returned from the hospital, nursing staff failed to keep Dr. Greenspan properly advised of Nick Starling's condition, and nursing staff failed to employ that degree of care and skill that a nurse of ordinary care, skill and diligence should employ in like circumstances. Starling contends that these breaches of care allowed a deep vein thromboses to develop in Nick's leg, which, in turn, created a pulmonary artery thromboemboli, which, in turn, caused Nick Starling's death.
{¶19} The Ohio Supreme Court has explained that the elements of negligence are the same for medical negligence. Cromer v. Children's Hosp. Med. Ctr of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, 29 N.E.3d 921, ¶ 23. With respect to the element of duty, the Ohio Supreme Court explained, "The scope of any duty owed is the standard of care that an actor must exercise. * * * The minimum standard of care expected under any circumstances is to exercise that degree of care and caution that an ordinarily careful and prudent person would exercise under similar circumstances. * * * In the physician-patient relationship, however, the scope of the duty owed includes an augmented expectation that physicians will exercise the degree of care that is reasonable in light of the physician's superior training and knowledge. * * * Thus, the standard of care applicable to medical professionals is to exercise the degree of care that a medical professional of ordinary skill, care, and diligence would exercise under similar circumstances." Cromer at ¶ 27.
{¶20} In Cromer the Ohio Supreme further stated, "Although the standard of care for a medical professional is heightened, it does not necessarily supplant all consideration of foreseeability. As part of their standard of care, medical professionals are expected to be able to recognize certain symptoms of illness and injury, and they are expected to be aware of the associated risk of harm. * * * In other words, they are expected to foresee a risk of harm that a medical professional of ordinary skill, care, and diligence would foresee under similar circumstances. And just as with the general negligence standard, it necessarily follows that we would not expect medical professionals to guard against a risk of harm that a medical professional of ordinary skill, care, and diligence would not foresee." Cromer at ¶ 28.
{¶21} Twenty-two years before Cromer, in Berdyck v. Shinde, 66 Ohio St.3d 573, 613 N.E.2d 1014 (1993), the Ohio Supreme Court held, "Though a nurse is prohibited from engaging in the practice of medicine, a nurse employed by a hospital to which a patient is admitted by an attending physician is under a duty to keep the attending physician informed of the patient's condition so as to permit the physician to make a proper diagnosis and devise a plan of treatment for the patient." Berdyck at paragraph one of the syllabus. The Ohio Supreme Court also held in Berdyck that, to fulfill a duty to inform an attending physician, nurses "must perform a competent nursing assessment of the patient to determine the signs and symptoms presented by the patient that are significant in relation to the attending physician's tasks of diagnosis and treatment." Berdyck at paragraph two of the syllabus. And the Ohio Supreme Court further held, "Because nurses are persons of superior knowledge and skill, nurses must employ that degree of care and skill that a nurse practitioner of ordinary care, skill and diligence should employ in like circumstances. Whether a nurse has satisfied or breached the duty of care owed to the patient is determined by the applicable standard of conduct, which is proved by expert testimony." Berdyck at paragraph three of the syllabus. Notably, however, medical professionals are not expected to guard against a risk of harm that a medical professional of ordinary skill, care, and diligence would not foresee." Cromer v. Children's Hosp. Med. Ctr of Akron, 142 Ohio St.3d 257 at ¶ 28.
{¶22} Starling maintains that, on June 27, 2018, at 6:20 a.m., a WDC nurse documented, for the first time, that Nick was refusing to wear his leg immobilizer because "it hurt." (Plaintiffs Trial Exhibit 1-60.) Starling urges that this notation is significant because "[t]he absence of direct evidence of calf swelling from the nurses themselves is only evidence of their negligence in failing to perform careful assessments and should not be interpreted as a lack of credible evidence of calf swelling." However, in the Court's view, the nursing notes show that WDC nurses assessed Nick, as ordered, and the nursing notes do not reflect swelling in Nick's leg to such an extent that would require WDC nurses to take action according to the Nursing Plan that was developed after Nick returned from the hospital. And in the Court's view, nursing staff's care of Nick did not deviate from the level of care, skill, and diligence that nurses should employ in like circumstances.
{¶23} Additionally, the Court has concerns whether the purported negligence of WDC nursing staff was the proximate cause of Nick Starling's death. See Littleton v. Good Samaritan Hosp & Health Ctr, 39 Ohio St.3d 86, 92, 529 N.E.2d 449 (1988) (to maintain a wrongful death action on a theory of negligence, a plaintiff must show (1) the existence of a duty owing to plaintiff's decedent, (2) a breach of that duty, and (3) proximate causation between the breach of duty and the death") The Court does not, however, need to reach the issue of proximate causation since WDC's nursing staff did not breach the standard of care See PDK Laboratories Inc v United States Drug Enforcement Administrator, 362 F.3d 786, 799 (CADC2004) (Roberts, J, concurring in part and in the judgment) ("the cardinal principle of judicial restraint -- if it is not necessary to decide more, it is necessary not to decide more -- counsels us to go no further").
{¶24} After weighing the evidence, as well as the credibility of the witnesses, the Court determines that Starling has not proven by a preponderance of the evidence that WDC nursing staff breached the applicable standard of care. Given that Starling has failed to prove her claims of negligence, battery, and medical negligence by a preponderance of the evidence, Starling's claim of wrongful death fails.
IV. Conclusion
{¶25} The Court holds that Cynthia Starling has not proven her claims by a preponderance of the evidence.
JUDGMENT ENTRY
{¶26} For reasons set forth in the decision filed concurrently herewith, judgment is rendered in favor of Defendant. Court costs are assessed against Plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.