[Cite as Burgess v. Mt. Vernon Developmental Ctr., 2009-Ohio-7017.]

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us

MARTHA BURGESS, Admx. 

 Plaintiff 

 v. 

MT. VERNON DEVELOPMENTAL CENTER 

 Defendant 
Case No. 2008-03441 

Judge J. Craig Wright 

DECISION

{¶ 1} Plaintiff Martha Burgess, administratrix of the estate of her daughter, 

Susan, brings this action alleging wrongful death. The issues of liability and damages 

were bifurcated and the case proceeded to trial on the issue of liability. 

{¶ 2} From 1982 until her death in 2006, Susan Burgess was a resident of 

defendant, Mount Vernon Developmental Center (MVDC), a residential treatment facility 

for developmentally disabled individuals. Susan suffered from multiple ailments, 

including mental retardation, autism, episodic sinusitis, rhinitis, anemia, and end-stage 

renal failure. From 2000 to 2006, Dr. Joseph Poole II, was Susan’s primary care 

physician at MVDC.1

 Dr. Poole worked with a nephrologist in Columbus, Ohio, to 

manage Susan’s chronic renal failure. Susan was extremely self-abusive and, as a 

result, in 2005 it was determined that she would not be a candidate for dialysis. 

{¶ 3} On March 13, 2006, Susan’s blood oxygen saturation level was measured 

at 99 percent. On March 17, it had decreased to 93 percent. On March 18, it was 90 

percent. On March 19, it returned to 93 percent. On March 20, it varied from 92 to 89 

percent. From March 13 to March 20, it was noted that Susan had a runny nose and 

congestion that cleared with coughing. However, Susan did not have a fever and did 

not display tachycardia. On March 21, 2006, Susan died. An autopsy was conducted 

and the cause of death was determined to be bilateral organizing pneumonia. 

{¶ 4} Plaintiff asserts that the care provided to Susan by defendant’s employees 

fell below the standard of care in that they failed to recognize that Susan was suffering 

from pneumonia, failed to send her for a chest x-ray, and failed to prescribe antibiotics 

for her. Defendant asserts that although the cause of death was determined to be 

pneumonia, it was of sudden onset and that defendant’s employees met the standard of 

 1

The court notes that both Dr. Poole I and Dr. Poole II are employed by MVDC. 
care in their treatment of Susan. In addition, defendant asserts that the cause of 

Susan’s death was end-stage renal failure. 

{¶ 5} Plaintiff’s expert, Michael Yaffe, M.D., testified that he practices internal 

medicine at the McConnell Heart Health Center at Riverside Methodist Hospital in 

Columbus, Ohio. Dr. Yaffe stated that Susan’s medical records reveal that the 

decrease in her oxygen level was caused by an upper respiratory infection which 

traveled to her lower chest and resulted in pneumonia. He criticized the failure of 

defendant’s staff to have Susan tested for pneumonia. He stated that at 8:20 p.m. on 

March 20, slight congestion was identified in Susan’s lungs and that the medical staff 

should have suspected pneumonia at that time. Dr. Yaffe opined to a reasonable 

degree of medical probability that if Susan had been sent to the emergency room for a 

chest x-ray her pneumonia would have been properly diagnosed and that had she been 

prescribed antibiotics on the evening of March 20, she would have survived. Although 

Dr. Yaffe believed that Susan displayed features of a type of pneumonia that would 

have been treatable with antibiotics, he conceded that she did not display other 

symptoms of pneumonia such as an elevated temperature and tachycardia. 

{¶ 6} Dr. Poole testified that he was an internist with a sub-specialty in 

cardiology. Dr. Poole stated that he became Susan’s primary care physician in 2000 

and that she had been diagnosed with chronic renal failure in 1998 or 1999. Dr. Poole 

explained that he was working with Dr. Wilmer, a nephrologist, to treat Susan’s renal 

failure and that he faxed Dr. Wilmer results of lab work approximately once every two 

weeks. Dr. Poole stated that when he listened to Susan’s lungs on March 20, he did not 

detect any congestion. Dr. Poole testified that he did not suspect that Susan had 

pneumonia on March 20, and that she complained of back pain, abdominal pain, and 

headaches, and that she wanted to lie down on the floor. 

{¶ 7} On cross-examination, Dr. Poole stated that Susan was given a 

heightened level of care in March 2006 because of her chronic renal failure and that, in 

his experience, patients with pneumonia also display an elevated temperature, but she 

did not. Dr. Poole insisted that when he examined Susan, she showed no signs of 

pneumonia, but he also stated that she did have stage-5 renal failure, which means that 

she did not have enough kidney function to sustain life. He explained that she was not 
a candidate for dialysis because she was too self-abusive, and that if a shunt were to be 

placed, she posed a great risk of pulling it out. According to Dr. Poole, Susan was selfabusive to the point that she “was almost ripping her ears off.” 

{¶ 8} Defendant’s expert, Carl Blond, M.D., testified that he is board-certified in 

internal medicine and nephrology and that he is licensed to practice medicine in the 

state of Texas. Dr. Blond is employed as a clinical professor of medicine at the 

University of Texas Health Science Center in San Antonio and works at the San Antonio 

Kidney Disease Center Physicians Group. Dr. Blond testified that Susan’s medical 

records show that she suffered from progressive kidney failure during her residency at 

MVDC and that she was in stage 5, the final stage, of progressive kidney failure when 

she died. Dr. Blond stated that at the time of her death, Susan had been in stage-5 

kidney failure for approximately one year. Dr. Blond stated that the description in her 

autopsy showed that her kidneys were “completely gone”; that she had one-tenth of a 

millimeter of cortex on her kidneys, which he described as “essentially nothing; just a 

scar around the outside of her kidneys.” Dr. Blond explained that in a normal kidney, 

the cortex measures 1.5 centimeters. 

{¶ 9} Regarding the care that Susan received in the week before her death, Dr. 

Blond stated that defendant’s employees seemed to be very attentive to her inasmuch 

as they frequently checked on her, monitored her vital signs, and that they called Dr. 

Poole multiple times regarding her status. Dr. Blond stated that he did not observe any 

deviation from the medical staff’s standard of care for Susan, and that nothing in the 

medical records showed that she was in “dire straits.” Dr. Blond noted that Susan did 

not have a fever or tachycardia, which are typical signs of pneumonia. 

{¶ 10} Dr. Blond explained that at 8:20 p.m. on March 20, Susan’s oxygen level 

was between 92 and 89 percent, and although that level was not normal, it was not a 

drastic change from what it had been earlier in the week. In addition, her pulse was 

consistently normal. Dr. Blond stated that it would have been reasonable for Dr. Poole 

to plan to evaluate Susan in the morning on March 21, to see if there was any evidence 

of infection; and that she did not appear to be in need of urgent treatment at 8:20 p.m. 

on March 20. 
{¶ 11} Dr. Blond opined that, to a reasonable degree of medical probability, 

defendant’s employees met the standard of care in their treatment of Susan inasmuch 

as they were attentive to her, they checked on her frequently, and they updated Dr. 

Poole about her status. Dr. Blond further opined that Susan died from complications of 

end-stage kidney failure, that defendant’s medical staff did not do anything to cause or 

contribute to her death, and that her death was natural and expected. Dr. Blond added 

that infection is frequently the cause of death where kidney failure is treated 

conservatively. 

{¶ 12} Lastly, Dr. Blond opined that even if Susan had been taken to the 

emergency room on March 20, more likely than not she would not have survived 

because of her kidney failure. 

{¶ 13} “In order to establish medical malpractice, it must be shown by a 

preponderance of the 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 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, 131. 

{¶ 14} Upon review of the evidence, the court finds that plaintiff has failed to 

prove by a preponderance of the evidence that defendant’s medical staff deviated from 

the standard of care. The court notes that Susan’s oxygen saturation levels were 

monitored with regularity and that she was given continuous medical care during the 

final stages of her life. The court also finds that throughout her treatment, Susan did not 

display the classic signs of pneumonia: fever and tachycardia. Dr. Blond’s testimony 

persuaded the court that the condition of Susan’s kidneys was incompatible with life. 

The greater weight of the evidence shows that Susan’s death was the result of stage-5 

kidney failure and that, even if her pneumonia had been diagnosed, the failure of her 

kidneys was imminent. For the foregoing reasons, the court finds that plaintiff has failed 

to prove any of her claims by a preponderance of the evidence and, accordingly, 

judgment shall be rendered in favor of defendant. 
Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us 

MARTHA BURGESS, Admx. 

 Plaintiff 

 v. 

MT. VERNON DEVELOPMENTAL CENTER 

 Defendant 
Case No. 2008-03441 

Judge J. Craig Wright 

JUDGMENT ENTRY

 This case was tried to the court on the issue of liability. The court has 

considered the evidence and, for the 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. 

 _____________________________________ 

 J. CRAIG WRIGHT 

 Judge 

cc: 

 

Christopher P. Conomy 

Eric A. Walker 

Assistant Attorneys General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Curtis M. Fifner 

Mark E. Defossez 

495 South High Street, Suite 100 

Columbus, Ohio 43215 

HTS/cmd

Filed November 5, 2009 

To S.C. reporter December 29, 2009