[Cite as Rex v. Univ. of Cincinnati College of Medicine, 2013-Ohio-3638.]

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

DOUGLAS REX, et al. 

 Plaintiffs 

 v. 

UNIVERSITY OF CINCINNATI COLLEGE OF MEDICINE 

 Defendant 

Case No. 2009-04637 

Judge Patrick M. McGrath 

Magistrate Anderson M. Renick 

JUDGMENT ENTRY

{¶ 1} This case was tried to a magistrate on the issue of liability. On January 25, 

2013, the magistrate issued a decision recommending judgment for defendant. 

{¶ 2} Civ.R. 53(D)(3)(b)(i) states, in part: “A party may file written objections to a 

magistrate’s decision within fourteen days of the filing of the decision, whether or not the 

court has adopted the decision during that fourteen-day period as permitted by Civ.R. 

53(D)(4)(e)(i).” Plaintiffs timely filed their objections on February 8, 2013. On February 

14, 2013, plaintiffs filed a copy of the transcript. Defendant filed a response on 

February 21, 2013. 

{¶ 3} According to the magistrate’s decision, plaintiff, Douglas Rex, was 

diagnosed with prostate cancer in the spring of 2008.1

 Plaintiff was subsequently 

referred to Robert Bracken, M.D., to explore treatment options. At that time, plaintiff’s 

medical history included atrial fibrillation and two episodes involving a deep vein 

thrombosis (DVT) for which he had been prescribed Coumadin, an anticoagulant that 

slows the body’s ability to stop bleeding. In preparation for surgery, Dr. Bracken 

 1

For the purposes of this decision, “plaintiff” shall refer to Douglas Rex. 
Case No. 2009-04637 - 2 - ENTRY

instructed plaintiff to stop taking Coumadin 10 days prior to the procedure, and he 

prescribed two daily doses of Lovenox, a short-term anticoagulant. Such a form of 

treatment is known as “bridging therapy.” 

{¶ 4} On May 12, 2008, Dr. Bracken performed a robotic wide excision radical 

prostatectomy. The surgery lasted approximately seven hours and plaintiff lost a 

significant amount of blood. After the surgery, plaintiff began experiencing difficulty with 

his vision while recovering in the intensive care unit and later in a rehabilitation center. 

The Cincinnati Eye Institute subsequently diagnosed plaintiff with Ischemic Optic 

Neuropathy (ION). 

{¶ 5} The magistrate concluded that plaintiffs failed to prove that Dr. Bracken’s 

preoperative and surgical treatment fell below the standard of care. The magistrate was 

not persuaded by the testimony of plaintiffs’ expert, Michael Mathers, M.D. Rather, the 

magistrate was convinced by the testimony of defendant’s expert, Ronney Abaza, M.D., 

that Dr. Bracken’s actions met the standard of care. The magistrate further determined 

that Dr. Bracken credibly testified regarding his consultations with two internists about 

bridging therapy and the prescribed dosage of Lovenox. Finally, the magistrate 

determined that plaintiffs failed to prove that any alleged negligence proximately caused 

plaintiff injury. The magistrate was not convinced by the testimony of plaintiffs’ expert 

Karl Golnik, M.D. Rather, the magistrate was persuaded by the testimony of 

defendant’s expert, Andrew Lee, M.D. 

{¶ 6} In reviewing a party’s objections, the “court must conduct an independent 

analysis of the underlying issues, undertaking the equivalent of a de novo determination 

and independently assessing the facts and conclusions contained in the magistrate’s 

decision.” Shihab & Assoc. Co. LPA v. Ohio Dept. of Transp., 168 Ohio App.3d 405, 

2006-Ohio-4456, ¶ 13 (10th Dist.); Dayton v. Whiting, 110 Ohio App.3d 115, 118 (2nd 

Dist.1996). 
Case No. 2009-04637 - 3 - ENTRY

{¶ 7} In their first objection, plaintiffs argue that the magistrate erred by allowing 

the treating physician, Dr. Bracken, to give expert testimony regarding his own care in 

treating plaintiff. Specifically, plaintiffs argue that the magistrate should have precluded 

Dr. Bracken from offering expert testimony regarding his consultations with internists 

and the dosing levels for Lovenox. 

{¶ 8} L.C.C.R. 7(E), provides, in relevant part, that “[I]n the event the expert 

witness is a treating physician, the court shall have the discretion to determine whether 

the hospital and/or office records of that physician’s treatment which have been 

produced satisfy the requirements of a written report.” A review of the transcript reveals 

that the magistrate did not consider Dr. Bracken as an expert witness regarding the 

standard of care in this case. However, under L.C.C.R. 7(E), Dr. Bracken would qualify 

as an expert regarding the treatment he provided to plaintiff and the medical records 

would qualify as his expert report. To the extent that Dr. Bracken testified regarding 

medical events and treatment not memorialized in the medical records, such an issue is 

an issue of credibility rather than admissibility. The court notes, however, that Dr. 

Bracken conceded that he was not an expert regarding the proper dosage of Lovenox. 

Ultimately, the magistrate determined that plaintiffs failed to carry their burden of 

persuasion regarding any alleged breach of the standard of care. In short, the 

magistrate was not persuaded by the testimony of plaintiffs’ expert that Dr. Bracken 

breached the standard of care. The court agrees with the magistrate’s conclusions. 

Plaintiffs’ first objection is OVERRULED. 

{¶ 9} In their second objection, plaintiffs argue that the magistrate erred by 

admitting hearsay testimony. Plaintiffs argue that Dr. Bracken’s testimony regarding a 

consultation he obtained with two internists to determine the proper dosage of Lovenox 

constitutes inadmissible hearsay. See Transcript pp. 335-337. After a review of the 

transcript, the court determines that although he relied upon a recommendation from the 

internists, Dr. Bracken testified regarding his own personal actions in determining the 

proper dosage of Lovenox. Moreover, plaintiffs objected after Dr. Bracken had already 
Case No. 2009-04637 - 4 - ENTRY

answered multiple questions regarding the consultation. Plaintiffs’ second objection is 

OVERRULED. 

{¶ 10} In their third objection, plaintiffs argue that the magistrate relied upon noncredible testimony of Dr. Bracken. Plaintiffs argue that Dr. Bracken could not have 

consulted with internists regarding the proper dosage of Lovenox inasmuch as the test 

results upon which he relied during the consultation were not available until after plaintiff 

had filled his prescription at a local pharmacy. However, Dr. Bracken testified that, 

during the consultation, additional testing was recommended and that such additional 

testing confirmed his initial impressions. The magistrate found that Dr. Bracken had 

credibly testified. It is well-settled that the magistrate, as the trier of fact, is in the best 

position to weigh the testimony and assess the credibility of witnesses. Seasons Coal 

Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). Moreover, the trier of fact is free to 

believe or disbelieve all or any of the testimony. State v. J.L.S., 10th Dist. No. 08AP-33, 

2012-Ohio-181. The court agrees with the magistrate’s conclusions. Plaintiffs’ third 

objection is OVERRULED. 

{¶ 11} In their fourth objection, plaintiffs argue that the magistrate erred by not 

relying upon plaintiffs’ expert witness’s testimony regarding the standard of care. 

Plaintiffs argue that defendant failed to offer any evidence regarding an alternative 

standard of care. However, the burden rests upon plaintiffs to prove by a 

preponderance of the evidence that the physician’s actions fell below the standard of 

care. Bruni v. Tatsumi, 46 Ohio St.2d 127 (1976), paragraph one of the syllabus. 

Furthermore, the magistrate, as the trier of fact, is free to believe or disbelieve any part 

of the testimony. State v. J.L.S., supra. Upon review, the court agrees with the 

magistrate’s conclusions. Plaintiffs’ fourth objection is OVERRULED. 

{¶ 12} In their fifth objection, plaintiffs argue that the magistrate erred in 

determining that plaintiffs failed to prove that any alleged breach of the standard of care 

proximately caused plaintiff injury. Specifically, plaintiffs argue that the magistrate failed 
Case No. 2009-04637 - 5 - ENTRY

to address plaintiff’s additional injuries, which required an extended stay in the ICU, 

rehabilitation center, and use of a home nurse. However, plaintiffs do not point to any 

expert testimony regarding standard of care or proximate cause that connects Dr. 

Bracken’s actions with any additional injuries. Moreover, the magistrate determined that 

plaintiffs failed to prove that Dr. Bracken’s actions fell below the standard of care. The 

court agrees with the magistrate’s determination. Accordingly, plaintiffs’ fifth objection is 

OVERRULED. 

{¶ 13} Upon review of the record, the magistrate’s decision and the objections, 

the court finds that the magistrate has properly determined the factual issues and 

appropriately applied the law. Therefore, the objections are OVERRULED and the court 

adopts the magistrate’s decision and recommendation as its own, including the findings 

of fact and conclusions of law contained therein. Judgment is rendered in favor of 

defendant. Court costs are assessed against plaintiffs. The clerk shall serve upon all 

parties notice of this judgment and its date of entry upon the journal. 

 

 _____________________________________ 

 PATRICK M. MCGRATH 

 Judge 

cc: 

 

Brian M. Kneafsey, Jr. 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Gregory P. Hartmann 

Joseph W. Shea III 

Michelle A. Cheek 

Shirley A. Coffey 

119 West Central Parkway 

300 Court Index Building 

Cincinnati, Ohio 45202 

003

Filed April 12, 2013 

To S.C. Reporter August 22, 2013