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Ferguson v. Dyer3/28/2002
(REGULAR CALENDAR)
DECISION
APPEAL from the Franklin County Court of Common Pleas.
Plaintiff-appellant, Karen S. Ferguson, appeals from a judgment of the Franklin County Court of Common Pleas in favor of defendants-appellees Howard L. Dyer, D.O., and his employer Victorian Village Internal Medicine, Inc.
This case rests upon allegations of medical negligence brought by Karen S. Ferguson and her two children against appellees and Doctors Hospital. Ms. Ferguson, then thirty-three weeks pregnant, presented at the emergency room of Doctors Hospital West in Columbus, Ohio, on February 26, 1997, because she was having difficulty breathing. Ms. Ferguson was initially sent home, but ultimately was returned to the emergency room by an emergency squad later that day. She gave birth to a baby girl by emergency cesarean section that evening. Diagnosed with acute respiratory distress, Ms. Ferguson was intubated, placed on a ventilator and admitted to the Intensive Care Unit ("I.C.U.") at Doctors Hospital with appellee Dr. Harold L. Dyer as her attending physician.
On the morning of February 28, 1997, Dr. Dyer reviewed chest X-rays of Ms. Ferguson, examined her and assessed her condition in part upon an index known as the "rapid shallow breathing index." Based upon the results of Dr. Dyer's evaluation, he concluded that Ms. Ferguson had responded well to treatment and could be taken off the ventilator and her endotracheal tube removed. Pursuant to Dr. Dyer's orders, Ms. Ferguson was accordingly extubated at approximately 9:05 a.m. on February 28, 1997, by a respiratory therapist. Ms. Ferguson nonetheless remained in the I.C.U. and was given oxygen via a nasal canula. Nurse Robin Hilleary, a registered nurse and employee of Doctors Hospital, was the nurse assigned to care for Ms. Ferguson on that day. Dr. Stephen C. Milburn, a third-year resident in internal medicine, was the resident on duty at the I.C.U.
Through the course of the morning after being extubated, Ms. Ferguson appeared to be doing well. No significant changes in heart rate, respiration, or blood pressure were noted. Her obstetrician examined her, and her newborn daughter was brought to visit at approximately 11:30 a.m.
At approximately noon of the following day, February 29, 1997, Ms. Ferguson developed renewed difficulty in breathing. Her vital signs deteriorated. Dr. Dyer was not called regarding this change in Ms. Ferguson's condition; however, Dr. Milburn was paged at approximately 12:15 p.m. Upon his arrival at the I.C.U., Dr. Milburn attempted to reintubate Ms. Ferguson. Difficulties delayed the process and by the time Ms. Ferguson was successfully reintubated she had suffered cardiac asystole resulting in an anoxic brain injury . Ms. Ferguson has suffered profound and permanent mental impairment as a result of her injuries.
Testimony at trial was largely in agreement that Nurse Hilleary had been negligent in failing to timely notify Dr. Milburn of the critical changes in Ms. Ferguson's condition. Conflicting expert testimony was heard on the advisability of extubating Ms. Ferguson at the time ordered by Dr. Dyer on February 28, 1997, in light of her condition at that time. Doctors Hospital elected to settle during the course of trial the claims of respondeat superior liability against it for Nurse Hilleary's alleged negligence. Trial continued as to the plaintiffs' claims against Dr. Dyer and Victorian Village Internal Medicine, Inc. The trial court refused to allow appellant's request to have the jury instructed on the "loaned servant" doctrine, under which appellant asserted that Dr. Dyer could be held liable for not only his own negligence but that o
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