2018 Ohio 2433
Ohio Ct. App.2018Background
- On Oct. 2, 2012, Daryl Dazley arrived at Mercy St. Vincent ED critically ill with suspected acute coronary event (tachycardia, hypotension, pulmonary edema); three EKGs were obtained.
- Attending Dr. Sara Graber instructed resident Nicholas Boraggina to call the on‑call cardiologist (Dr. Paul Berlacher); department logs show a call but neither Boraggina nor Berlacher recall the substance.
- Dazley was admitted to the MICU; a cardiologist saw him the next day and found an occluded stent requiring urgent catheterization; Dazley later suffered extensive heart damage and died months later.
- Plaintiff (Administratrix) sued; after refiling, claims against Boraggina survived while Berlacher was resolved. Boraggina moved for summary judgment.
- Central dispute: whether the retained emergency‑medicine expert (Dr. Mushkat) sufficiently articulated an applicable standard of care regarding the content of the call and whether Boraggina failed to convey Dr. Graber’s instruction that there was concern for cardiogenic shock, and whether any failure caused harm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert articulated a recognized standard of care for communication between ED and cardiology | Mushkat identified the applicable standard: attending must activate cath lab or instruct resident to tell cardiologist the patient may be in cardiogenic shock; resident must relay attending’s instructions | Boraggina argued Mushkat failed to articulate a recognized, applicable communication standard | Court: Mushkat articulated a general and a narrower standard (resident must convey attending’s instructions); expert testimony sufficient on standard of care |
| Whether Mushkat’s 2017 testimony contradicted his 2015 testimony such that it should be excluded | Plaintiff: 2017 testimony clarified and supplemented prior testimony about what Graber specifically told Boraggina to say | Defendant: 2017 testimony introduced new, inconsistent criticisms and cannot create factual dispute | Court: 2017 testimony clarified 2015 testimony and could be considered on summary judgment |
| Whether a genuine factual dispute exists about what Boraggina actually told Berlacher | Plaintiff: Berlacher’s lack of recollection and his admissions about what he would have done if told of cardiogenic shock create a dispute; habit evidence is controverted | Boraggina: his routine practice of conveying the charted findings suffices; call is confirmed by logs so no dispute | Court: Genuine issue of material fact exists — either Boraggina followed his habit and Berlacher failed to act, or Boraggina did not convey the urgent information as habit would dictate |
| Whether any failure to convey the concern for cardiogenic shock causally affected outcome | Plaintiff: Treating ED physicians testified patient was in cardiogenic shock in ED; causation remains factual question | Boraggina: Experts say shock not definitive in ED so failure to use phrase immaterial; no changed treatment would follow | Court: Causation unresolved; conflicting testimony means summary judgment inappropriate on causation |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (standard for de novo appellate review of summary judgment)
- Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (three‑part summary judgment test)
- Mitseff v. Wheeler, 38 Ohio St.3d 112 (movant must delineate bases for summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280 (adverse party must produce specific facts to show genuine issue)
- Pettiford v. Aggarwal, 126 Ohio St.3d 413 (an expert’s later affidavit or testimony contradicting earlier testimony must be explained to create a factual dispute)
- Bruni v. Tatsumi, 46 Ohio St.2d 127 (expert testimony required to prove medical standard of care)
- Ramos v. Khawli, 181 Ohio App.3d 176 (affidavit of merit is not admissible summary‑judgment evidence)