[Cite as Lindsey v. Univ. of Toledo Med. Ctr., 2011-Ohio-875.]

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

IRENE LINDSEY 

 Plaintiff 

 v. 

UNIVERSITY OF TOLEDO dba UNIVERSITY OF TOLEDO MEDICAL CENTER, et al. 

 Defendants 

Case No. 2008-01243 

Judge Clark B. Weaver Sr. 

DECISION

{¶ 1} On January 9, 2008, plaintiff filed this action against defendant, University 

of Toledo Medical Center (UTMC),1 alleging that the medical care rendered to plaintiff 

fell below the accepted standard of care and that due to the circumstances surrounding 

plaintiff’s injury, the doctrine of res ipsa loquitur applies. The issues of liability and 

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

{¶ 2} Plaintiff entered UTMC on January 9, 2007, in order to undergo revision of 

a previous knee replacement. Plaintiff testified that the surgery lasted approximately 

four hours, that she had no recollection of the time that she was in the recovery room, 

and that when she was transferred to her hospital room, she became aware of a painful, 

burning sensation under her upper left arm. According to plaintiff, her upper arm bore 

an imprint from the blood pressure cuff that had been placed there during surgery. She 

also noted that her skin was reddened and that “steam” was coming off her arm. In 

 1

For the purposes of this decision, defendant shall refer to UTMC.
addition, plaintiff noted an unusual odor and that blisters had formed and were “hanging 

down.” Plaintiff stated that she showed the area to her daughter and asked her to 

photograph the injured areas. Plaintiff maintains that the injury was the result of 

improper placement of the blood pressure cuff and excessive friction. 

{¶ 3} Plaintiff alleges that defendant’s employees were negligent inasmuch as 

such an injury should not have happened in the normal course of knee replacement 

surgery. Plaintiff also asserts that the doctrine of res ipsa loquitur applies to the 

circumstances of this case in that she was under general anesthesia during the surgery 

and the instrumentality which she alleges caused the harm was under the sole control 

of defendant. 

{¶ 4} In order to prevail on a claim of medical malpractice or professional 

negligence, plaintiff must first prove: 1) the standard of care recognized by the medical 

community; 2) the failure of defendant to meet the requisite standard of care; and 3) a 

direct causal connection between the medically negligent act and the injury sustained. 

Wheeler v. Wise (1999), 133 Ohio App.3d 564; Bruni v. Tatsumi (1976), 46 Ohio St.2d 

127. The appropriate standard of care must be proven by expert testimony. Bruni at 

130. That expert testimony must explain what a medical professional of ordinary skill, 

care, and diligence in the same medical specialty would do in similar circumstances. Id. 

{¶ 5} “The doctrine of res ipsa loquitur is a rule of evidence that permits a 

plaintiff to prove negligence circumstantially upon showing that (1) the instrumentality 

that caused the harm was in the exclusive control of the defendants, and (2) the event 

that caused the harm was not of the type that would normally occur in the absence of 

the defendants’ negligence. See Wiley v. Gibson (1990), 70 Ohio App.3d 463, 465, 591 

N.E.2d 382, 8 Anderson’s Ohio App. Cas. 19; see, also, Merritt v. Deaconess Hosp. 

(Sept. 7, 1976), 1st Dist. No. C-750343, 1976 Ohio App. LEXIS 6454.” Bowden v. 

Annenberg, Hamilton App. No. C-040499, 2005-Ohio-6515, ¶41. 

{¶ 6} “The applicability of res ipsa loquitur must be determined by the trial court 

on a case-by-case basis. See Jennings Buick, Inc. v. Cincinnati (1980), 63 Ohio St.2d 

167, 171, 406 N.E.2d 1385. Whether the plaintiff has offered sufficient evidence to 

warrant application of the doctrine is a question of law. See Hake v. Wiedemann 

Brewing Co. (1970), 23 Ohio St.2d 65, 67, 262 N.E.2d 703.” Id. at ¶42. 
{¶ 7} On cross-examination, plaintiff testified that she was returned to her room 

in the late afternoon and that she could not recall exactly when her daughter took the 

pictures of her injury but that it might have been two or three days after surgery. 

Plaintiff identified two sets of photographs, those taken at the hospital and another set 

taken after she had been discharged to her home. (Plaintiff’s Exhibit 5.) 

{¶ 8} Plaintiff recalled that during her stay in the hospital, a biopsy was taken 

from the area under her left arm. Plaintiff related that the wound was treated with “pink 

pads” and that she was given a “pink swab to draw the infection out.” Plaintiff testified 

that the blisters continued to appear and spread out and that, although the damaged 

tissue eventually healed, she was left with an area of scarring. 

{¶ 9} Defendants offered the deposition testimony of, and exhibits identified by, 

Dr. Jean Thomas, a dermopathologist who reviewed the pathology slides that correlate 

with plaintiff’s biopsy. Plaintiff objected to the testimony based upon the fact that no 

expert report from Dr. Thomas was provided to plaintiff prior to her deposition and that 

plaintiff did not receive copies of the slides and corresponding photographs relied upon 

by Dr. Thomas even though plaintiff had requested such documents in discovery. 

Defendants argued that Dr. Thomas was called as a fact witness, and that defendants 

produced everything that plaintiff asked for in discovery. Upon review, the court finds 

that defendants attempted to elicit expert testimony from Dr. Thomas without first 

providing plaintiff with an expert report in violation of the court’s June 3, 2008 trial order 

and L.C.C.R. 7(E). Thus, the court sustains plaintiff’s objections and grants plaintiff’s 

motion to exclude both the testimony and associated exhibits. Defendants’ Exhibits C, 

D, E, F, and G are not admitted into evidence. 

{¶ 10} Dr. Lori Gottwald testified that she is board-certified in dermatology and 

that she was consulted by plaintiff’s surgeon to examine plaintiff on January 11, 2007. 

Dr. Gottwald testified that she observed three fluid-filled blisters or bullae near plaintiff’s 

left axillary area and that some of the surrounding skin had open erosions as well. 

Based upon her observations, Dr. Gottwald initially attributed the blisters to either 

traumatic or frictional causes; however, she also included localized bullous pemphigoid 

as a differential diagnosis. Dr. Gottwald testified that she became more convinced that 

the condition was caused by bullous pemphigoid once she had reviewed the biopsy and 
tissue-staining results. Nonetheless, Dr. Gottwald acknowledged that she never 

formally diagnosed plaintiff with bullous pemphigoid during her hospital stay. 

{¶ 11} Plaintiff presented the videotaped deposition of her expert dermatologist, 

Dr. Evan Schlam. Dr. Schlam testified that he had treated many patients for bullous 

pemphigoid, which he described as an autoimmune blistering disease. He described 

the condition as causing large fluid-filled lesions that are widespread on the body, 

generally afflicting elderly patients.2

 Dr. Schlam opined that although bullous 

pemphigoid is certainly a possible explanation for plaintiff’s condition, there are several 

more likely possibilities. Dr. Schlam based his opinion, in part, upon the observation 

that plaintiff had only one affected area whereas bullous pemphigoid generally afflicts 

more than one area of the body. Dr. Schlam testified that localized bullous pemphigoid 

rarely occurred and thus he concluded that it was very unlikely that plaintiff suffered an 

attack of bullous pemphigoid. 

{¶ 12} On cross-examination, Dr. Schlam stated that he did not believe that 

plaintiff suffered from bullous pemphigoid, that there were several other reasons for the 

blisters, and that he was not offering an opinion as to the treatment rendered to plaintiff. 

Dr. Schlam opined that more likely than not the blisters were caused by something 

frictional rather than from bullous pemphigoid. Nonetheless, Dr. Schlam admitted that 

he could not opine, to a reasonable degree of medical certainty, what was the specific 

cause of the blisters. 

{¶ 13} “Res ipsa loquitur cannot be applied where there are multiple sources of 

injury, only one of which satisfies the doctrine's threshold requirements. In Jennings 

Buick v. Cincinnati, the Ohio Supreme Court noted that * * * ‘there was evidence 

presented to the trier of the facts which would have allowed the jury to find that one or 

another potential cause of the injury not attributable to the negligence of the [defendant] 

was equally as probable as was a cause attributable to the negligence of the 

[defendant].’” Bowden, supra, at ¶45, quoting Jennings at 174. 

{¶ 14} “Where it has been shown by the evidence adduced that there are two 

equally efficient and probable causes of the injury, one of which is not attributable to the 

 2

Plaintiff testified that at the time of this surgery she was 71 years old. 
negligence of the defendant, the rule of res ipsa loquitur does not apply.” Id. at ¶46, 

quoting Jennings at 171. 

{¶ 15} Plaintiff relies on her own observations as the basis for identifying the 

cause of the blisters. As such, plaintiff maintains that the blood pressure cuff was 

misapplied during surgery and that the blisters resulted from undue friction caused by 

the improperly positioned cuff. Upon review, the court finds that plaintiff’s testimony 

was not particularly credible and that, at times, her recollections were both inconsistent 

and blatantly contradictory. Inasmuch as the record contains evidence which supports 

more than one probable cause of plaintiff’s injury, at least one of which would not have 

been attributable to the negligence of employees at UTMC, the court concludes that res 

ipsa loquitur is not applicable in this case. 

{¶ 16} “In order to recover against a defendant in a tort action, plaintiff must 

produce evidence which furnishes a reasonable basis for sustaining his claim. If his 

evidence furnishes a basis for only a guess * * * as to any essential issue in the case, 

he fails to sustain the burden as to such issue.” Landon v. Lee Motors, Inc. (1954), 161 

Ohio St. 82, at paragraph six of the syllabus. Mikes v. Kent State University (Mar. 8, 

1990), Franklin App. No. 89AP-749. 

{¶ 17} Michele Stewart-Pushman testified that she is a surgical nurse at UTMC 

and that she was present in the operating room on January 9, 2007. Based upon a 

review of the records that she made during the procedure, she did not observe any 

burned or blistered area on plaintiff’s skin; rather, she noted that plaintiff’s skin was dry 

and intact. 

{¶ 18} Dr. Christopher Lewis testified that he was the anesthesia resident 

assigned to plaintiff’s case on January 9, 2007, that either he or the attending 

anesthesiologist would have placed the blood pressure cuff on plaintiff’s upper arm, and 

that he would have transported plaintiff to the recovery room where most likely a nurse 

would have applied a different blood pressure cuff in a similar manner. He also stated 

that he had never seen a blood pressure cuff cause this type of injury. 

{¶ 19} Upon review of the evidence presented, the court finds that plaintiff has 

failed to prove by a preponderance of the evidence that defendant was negligent or that 

defendant’s care and treatment of plaintiff fell below the standard of care. 
{¶ 20} Similarly, to the extent that Dr. Schlam was critical of defendant for failing 

to fully investigate the nature of plaintiff’s injury, the court finds that plaintiff’s injury was 

not caused by the failure to establish a definitive diagnosis. 

{¶ 21} For the foregoing reasons, the court finds that plaintiff has failed to prove 

that defendants were negligent and, accordingly, judgment shall be rendered in favor of 

defendants. 

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 

IRENE LINDSEY 

 Plaintiff 

 v. 

UNIVERSITY OF TOLEDO dba UNIVERSITY OF TOLEDO MEDICAL CENTER, et al. 

 Defendants 

Case No. 2008-01243 

Judge Clark B. Weaver Sr. 

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 defendants. 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. 
 _____________________________________ 

 CLARK B. WEAVER SR. 

 Judge 

cc: 

 

Anne B. Strait

Paula Luna Paoletti 

Assistant Attorneys General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Mark A. Davis 

500 Madison Avenue, Suite 340 

Toledo, Ohio 43604 

SJM/cmd

Filed January 18, 2011 

To S.C. reporter February 22, 2011