[Cite as Smith v. Univ. of Cincinnati, 2012-Ohio-3646.]

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

DEAN SMITH, Admr. 

 Plaintiff 

 v. 

UNIVERSITY OF CINCINNATI 

 Defendant 

Case No. 2008-11389 

Judge Clark B. Weaver Sr. 

DECISION

{¶ 1} Plaintiff, Dean Smith, brought this action for wrongful death on behalf of the 

estate of the his son, Ryan Smith, alleging that Ryan’s death on December 27, 2006, 

occurred as a result of negligent medical treatment rendered by one or more of 

defendant’s employees. The issues of liability and damages were bifurcated and the 

case proceeded to trial on the issue of liability. 

{¶ 2} Dean testified that he and his wife Debra shared their home in Cincinnati 

with their 23-year old son Ryan, Ryan’s girlfriend Erica Welsh, and Ryan and Erica’s 

infant son Jordan. According to Dean, the family exchanged Christmas gifts the 

morning of December 25, 2006, and had dinner in the late afternoon. Erica, now 

deceased, testified by deposition that Ryan felt ill throughout the day and complained of 

a headache. Similarly, Dean recalled that Ryan was not feeling well due to a sinus 

headache and congestion. 

{¶ 3} In the evening, Dean drove Ryan, Erica, and Jordan to Erica’s parents’ 

house in Hamilton, Ohio in order for them to celebrate Christmas there, and Dean then 
returned to his home. Erica testified that after her family exchanged gifts, she went to 

use the restroom, while Ryan went to the kitchen to get a glass of water. Erica stated 

that she heard Ryan fall, and that when she came out of the restroom, she saw him 

lying on the tile floor near the kitchen sink. According to Erica, Ryan was unconscious 

and was bleeding from the base of his skull; she added that Ryan had never before 

fallen or lost consciousness in such a manner. Paramedics were telephoned at 9:53 

p.m., and they transported Ryan to the emergency room (ER) at Fort Hamilton Hospital, 

arriving there at about 10:15 p.m. 

{¶ 4} Steven Purdy, a physician’s assistant at Fort Hamilton Hospital, testified by 

deposition that he performed an initial examination of Ryan and closed a laceration on 

the back of his head with staples. A CT scan was also performed and it revealed a skull 

fracture with bleeding in the subarachnoid space between the brain and the tissue that 

lines the brain. As a result of the CT scan and the lack of a neurologist at Fort 

Hamilton, it was decided that Ryan would be transported to University Hospital in 

Cincinnati for further evaluation. 

{¶ 5} At about 1:30 a.m., Debra received a telephone call from Fort Hamilton 

Hospital informing her that Ryan had been involved in an accident and was being 

transferred to the ER at University Hospital. Dean and Ryan’s sister, Anna, drove to 

University Hospital, arriving there between 1:45 and 2:00 a.m., and were able to see 

Ryan a few minutes later. Dean stated that Ryan was lying on a gurney asleep. 

{¶ 6} While at University Hospital, Ryan was under the care of the attending 

physician in the ER that night, Andra Blomkalns, M.D., an employee of defendant. 

Ryan was also cared for by Erin Grise, M.D., an emergency medicine resident, and 

Andrew Losiniecki, M.D., a neurosurgery resident; Drs. Grise and Losiniecki each 

testified that they were then employed by non-party University Hospital, Inc. 

{¶ 7} Dr. Blomkalns testified that she and Dr. Grise performed an initial evaluation 

of Ryan, and that she monitored him throughout the night in the observation unit. 

According to both Drs. Blomkalns and Grise, one of the basic measures used by 

medical personnel to evaluate head injury patients is the Glasgow Coma Scale (GCS), 

and they explained Ryan consistently had a GCS score of 14 or 15, which is consistent 

with a mild, rather than moderate or severe, head injury. Dr. Blomkalns testified that the 
University Hospital ER has a general guideline of providing two CT scans, six hours 

apart, to patients with minor head injuries, and if the second scan shows stabilization or 

improvement, the patient may be discharged. Dr. Blomkalns explained that this is a 

very general rule, that there is no consensus in the field as to how long such patients 

should be kept for observation, and that the decision to discharge a patient ultimately 

depends on a physician’s discretion. 

{¶ 8} After evaluating Ryan, Drs. Blomkalns and Grise developed a treatment 

plan that entailed having a second CT scan performed about six hours from the time 

that the first CT scan was performed at Fort Hamilton; if the second scan revealed 

improvement or stabilization, Ryan could be discharged, but otherwise he would remain 

for observation. Dr. Losiniecki testified that he performed a neurological evaluation of 

Ryan at 2:30 a.m. and agreed that a second CT should be ordered in order to determine 

whether Ryan could be discharged. 

{¶ 9} The second CT scan was performed at approximately 4:00 a.m. Drs. Grise 

and Losiniecki testified that upon reviewing the scan, they believed that the 

subarachnoid bleeding had diminished in comparison to the first scan such that Ryan 

appeared stable enough to be discharged from the ER. Dr. Blomkalns stated that she 

too reviewed the second CT scan and determined that Ryan could be discharged as a 

result of improvement shown in the second scan, his mental function being at least 

stable or improving, and her overall observations of him throughout the night; however, 

she added that Ryan’s condition was such that she would not have approved him for 

discharge if he did not have a caregiver present. 

{¶ 10} According to Dean, he was informed around 3:00 a.m. that the second CT 

scan had been ordered, but he had to leave around that time in order to take Anna back 

home so that she could go to work. Dean stated that when he returned to the ER 

around 4:00 a.m., the second CT scan had been performed and he was informed that it 

showed improvement inasmuch as the bleeding on Ryan’s brain was slowing, and that 

Ryan would soon be discharged. According to Dean, the only instructions he received 

regarding Ryan’s condition and any symptoms to expect or be concerned about were 

that Ryan might have headaches for the next month, that a follow-up appointment in the 

neurology department was scheduled for January 10, 2007, and that Ryan was being 
prescribed the pain reliever Percocet. According to Dean, the only written information 

he received was a Discharge Instruction Form that had handwritten directions on the 

administration of Percocet and a recommendation to either follow up with a primary care 

provider or the neurology department. (Joint Exhibit A, p. 69.) 

{¶ 11} Dr. Grise testified that she gave Ryan verbal instructions about what to 

expect or symptoms to watch for, but that she was not sure whether Dean was present 

when this occurred; she stated that her “normal spiel” for head injury patients explained 

that headaches and nausea might last for 24 hours, that it is acceptable for the patient 

to sleep so long as he can be woken, and that if the patient cannot be woken or 

becomes disoriented, he should return to the ER. Dr. Grise stated that her normal 

practice was to memorialize her oral instructions by writing them on the Discharge 

Instruction Form, but that she must have been busy and not had time to do so in this 

instance. Although University Hospital published a one-page instruction sheet for minor 

head injury patients, neither Dean nor Ryan were given a copy. (Plaintiff’s Exhibit 1.) 

Dr. Grise stated that she did not always provide this instruction sheet to patients 

inasmuch as she felt it contained poor advice to the extent that it recommended 

periodically waking patients, and she thus felt that her oral instructions were more 

accurate. Dr. Blomkalns, who testified that it is preferable to supplement oral 

instructions with written ones, stated that she too gave some basic oral instructions to 

Ryan, as well as Dean, such as to come back to the ER if Ryan vomited or if they had 

any other concerns, but these instructions were not written down either. 

{¶ 12} University Hospital records show that Ryan was discharged at 5:49 a.m. 

Dean stated that when he and Ryan left University Hospital, Ryan was very quiet, and 

was unsteady to the point that he needed help walking. According to Dean, they 

stopped at a pharmacy on the way home and had the prescription for Percocet filled. 

Debra stated that when Ryan arrived home, he seemed groggy, but that she attributed it 

to the medication. Dean then left for work, but Debra remained home with Ryan 

through the afternoon. Debra stated that Ryan slept throughout the day, that he walked 

to the restroom once with her assistance, and that he had no appetite. Debra left for 

work around 3:30 p.m., but Ryan’s adult brother was home at the time, and Dean 

returned from work around 5:00 p.m. 
{¶ 13} Dean stated that when he got home, Ryan complained of a headache, and 

he gave Ryan a soda and a Percocet as prescribed. According to Dean, Ryan was 

sleepy all evening, which Dean assumed to be attributable to the medication, but Ryan 

was nonetheless “fidgety.” Dean testified that around 7:00 p.m., Ryan went to the 

dining room table, spoke with Erica on the telephone, smoked a cigarette, went back to 

the couch, and fell asleep but remained fidgety. Erica testified that this was the last 

time she ever spoke with Ryan, and that because he seemed to be “in and out” of their 

conversation, she told him to go back to sleep. Dean stated that he continued to sit with 

Ryan until 11:00 p.m., when Debra returned home from work. 

{¶ 14} Debra testified that she sat in a chair near Ryan all night to monitor him, 

and that soon after she got home, she moved him from the couch to the floor because 

he was writhing such that she feared he would fall off the couch. Debra further testified 

that she heard Ryan make a gurgling noise in his sleep, but she thought it might be 

attributable to his pre-existing sinus infection, and she did not want to be “paranoid.” 

However, Debra awoke around 4:30 a.m. to discover that Ryan was struggling to 

breathe. Debra immediately woke Dean, and they dialed 911. An ambulance quickly 

arrived and transported Ryan to Mercy-Mt. Airy Hospital, and Dean and Debra traveled 

there by car. Doctors in the ER attended to Ryan, but he ultimately died at about 6:00 

a.m. Following an autopsy, the Hamilton County Coroner determined the cause of 

death to be “meningitis due to skull fracture due to blunt impact to the head.” (Joint 

Exhibit A, p. 103.) 

{¶ 15} Plaintiff alleges that defendant was negligent in failing to properly evaluate 

and treat Ryan, and that his death resulted therefrom. Specifically, plaintiff alleges that 

Ryan was inappropriately discharged from the ER, that the instructions provided at the 

time of discharge were inadequate, and that Ryan was inappropriately prescribed 

Percocet. Defendant contends that Ryan’s care and treatment at all times met the 

applicable standard of care. 

{¶ 16} “In order to establish medical [negligence], 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, 46 Ohio St.2d 127, 131 (1976). 

{¶ 17} “To maintain a wrongful death action on a theory of medical negligence, a 

plaintiff must show (1) the existence of a duty owing to plaintiff's decedent, (2) a breach 

of that duty, and (3) proximate causation between the breach of duty and the death.” 

Littleton v. Good Samaritan Hosp. & Health Ctr., 39 Ohio St.3d 86, 92 (1988), citing 

Bennison v. Stillpass Transit Co., 5 Ohio St.2d 122, paragraph one of the syllabus 

(1966). 

{¶ 18} Plaintiff presented the expert testimony of Samuel J. Kiehl, III, who is an 

ER physician at the Ohio State University Medical Center, and formerly served as the 

chief ER physician at Riverside Methodist Hospital in Columbus. Dr. Kiehl testified that 

the GCS is a very basic measure by which medical professionals assess head injuries, 

and that while Ryan’s GCS scores of 14 or 15 were consistent with a mild head injury, 

there were several factors that nonetheless placed Ryan at a high risk for developing 

more serious conditions such as a blood clot in the brain or cerebral edema, swelling of 

the brain. According to Dr. Kiehl, Ryan’s risk factors included the skull fracture, 

subarachnoid bleeding, and swelling revealed by the CT scan performed at Fort 

Hamilton, as well as Ryan’s inability to explain why or how he fell. 

{¶ 19} Dr. Kiehl opined that a patient with symptoms such as those revealed in 

the first CT scan should be kept in the ER for observation for a period of between 12 

and 24 hours after the injury occurred, depending on the circumstances, to ensure that 

neurological function returns and that complications such as cerebral edema do not 

develop, and that a second CT scan may be appropriate at the end of that observation 

period to rule out any complications. Dr. Kiehl thus opined that it was inappropriate to 

discharge Ryan some eight hours after his accident, and he further stated that 

regardless of how long Ryan had been under observation, the decision to discharge him 

fell below the standard of care because he was not sufficiently awake and alert to be 

properly evaluated. 
{¶ 20} Dr. Kiehl explained that the autopsy results revealed progressive cerebral 

edema, and that in the final stages of this process, the brain was caused to herniate, or 

expand outside its normal position, which is nearly always fatal. Regarding the 

symptoms associated with the process, Dr. Kiehl testified that cerebral edema reduces 

the flow of blood to the brain, thereby causing an increase in blood pressure as the 

body attempts to deliver more. Dr. Kiehl added that while headaches and sleepiness 

are normal in the immediate aftermath of a head injury, the unsteadiness, drowsiness, 

and fidgeting that Ryan’s parents described are symptomatic of cerebral edema. Dr. 

Kiehl opined that if Ryan had been kept in the ER for the length of time required by the 

standard of care, changes in blood pressure and other vital signs that would have 

accompanied the developing cerebral edema, as well as the outward symptoms such as 

those noted by Dean and Debra, more likely than not would have been discovered and 

led to an appropriate neurological diagnosis and treatment. 

{¶ 21} Dr. Kiehl also opined that the instructions provided to Dean and Ryan at 

the time of discharge fell below the standard of care, which he described as requiring 

detailed instructions, both orally and in writing, telling the caregiver what symptoms to 

expect and what symptoms require further medical attention. He explained that oral 

instructions are often forgotten or misunderstood, and thus must be memorialized in 

writing. 

{¶ 22} Finally, Dr. Kiehl stated that prescribing Percocet was not within the 

standard of care because it is a relatively potent narcotic that could have masked 

Ryan’s symptoms by causing drowsiness and thereby obscuring his consciousness. In 

Dr. Kiehl’s opinion, Tylenol or Toradol would have been appropriate pain relievers. 

{¶ 23} Plaintiff presented expert testimony on the issue of causation from George 

Riley Nichols, II, a board-certified anatomic, clinical, and forensic pathologist who 

served for 20 years as the Chief Medical Examiner for the Commonwealth of Kentucky. 

Dr. Nichols testified that Ryan’s autopsy revealed a fracture on the back of the skull and 

contamination of the material lining the brain, which resulted in a meningitis infection. 

According to Dr. Nichols, Ryan’s cerebral edema was a progressive process caused 

both by the meningitis and the trauma to the brain. Dr. Nichols stated that the pathology 

of that process would have produced a predictable set of progressive symptoms which, 
if not interrupted, would lead to death. He explained that the swelling would have 

resulted in headache, confusion, lethargy, somnolence, difficulty ambulating, seizure 

activity, and, in the final stages, passing out or going comatose. According to Dr. 

Nichols, the swelling process ultimately results in herniation of the brain, whereby the 

brain protrudes outside the space in which it is normally contained, and he related that 

the autopsy results show that Ryan’s brain indeed herniated through the base of the 

skull. Dr. Nichols related that once the herniation occurs, respiratory and circulatory 

functions are diminished, and within minutes cardiac arrest occurs. 

{¶ 24} Dr. Nichols testified that there are various treatment methods used to halt 

the swelling process, including medication, fluid restrictions, and surgical removal of 

cerebral spinal fluid or a portion of the cranium. Dr. Nichols opined that the pathology of 

Ryan’s cerebral edema was such that the condition was treatable and that Ryan should 

have survived if he had received the appropriate treatment. 

{¶ 25} Lastly, Dr. Nichols also testified that while Ryan was found to have had 

cocaine metabolite in his blood system, the parent drug was not present. Dr. Nichols 

opined that although cocaine can cause sudden death, this nearly always occurs while 

the parent drug is present. 

{¶ 26} Defendant presented expert testimony from Charles A. Eckerline, Jr., who 

is an associate professor and physician at the University of Kentucky Medical Center 

emergency medicine department, and is board-certified in emergency medicine. Dr. 

Eckerline testified that the standard of care for treating head injury patients in an ER is 

for the ER physician to make a total assessment of the patient, then evaluate the head 

injury, perform a CT scan or other diagnostic test if necessary, and consult with a 

neurosurgeon if necessary to discuss test results or the appropriateness of admitting or 

discharging the patient. Dr. Eckerline testified that there are a variety of guidelines for 

determining how long a head injury patient should be kept for observation, and that a 

physician’s clinical judgment is the most important factor. As for patients who are 

administered a CT scan upon their arrival to the ER, Dr. Eckerline opined that these 

patients are generally kept for observation for a period of four to twelve hours, and then 

another CT scan is administered. 
{¶ 27} Dr. Eckerline testified that in Ryan’s case, the treating physicians at 

University Hospital decided to observe him until six hours had passed since his first CT 

scan at Fort Hamilton Hospital, and to then administer a second CT scan. Dr. Eckerline 

opined that because Ryan was stable and neurologically intact during the observation 

period, and inasmuch as the second CT scan showed that the subarachnoid bleeding 

had slowed and revealed no increased brain swelling, the decision to discharge him to a 

caregiver, Dean, complied with the standard of care. 

{¶ 28} Regarding discharge instructions for patients with head injuries such as 

Ryan’s, Dr. Eckerline testified that the standard of care requires that both the patient 

and caregiver be informed of the diagnosis, expected symptoms, and symptoms that 

would require a return to the ER. Specifically, Dr. Eckerline testified that these 

instructions should note that the patient is expected to be drowsy and have a headache, 

but that if these conditions worsen or do not improve over time, or if the patient 

experiences difficulty walking, changes in mental status, difficulty being aroused, slurred 

speech, or nausea, then the patient should come back to the ER; further, such patients 

should be advised to follow up with their primary care providers. Dr. Eckerline opined 

that written instructions are recommended in order to supplement and document oral 

instructions, but that oral instructions are more important and comply with the standard 

of care. 

{¶ 29} Concerning medication, Dr. Eckerline opined that prescribing Percocet for 

Ryan’s severe headache was within the standard of care. According to Dr. Eckerline, 

Tylenol would not have been potent enough to relieve the headache pain, and Toradol 

would have thinned the blood and increased the risk of subarachnoid bleeding. 

{¶ 30} Defendant also offered expert testimony from Patrick McCormick, a boardcertified neurological surgeon practicing in Toledo, Ohio. Dr. McCormick testified that 

the standard of care for treating head injury patients is to interview the patient and 

perform an overall examination, then examine for the effects of the head injury, which 

may include assessing a GCS score and performing a CT scan, and then develop a 

treatment plan. According to Dr. McCormick, there are many different algorithms used 

by medical professionals to determine the appropriate course of treatment, but a 

physician’s professional judgment is the most important determiner. 
{¶ 31} Dr. McCormick stated that a patient with a mild head injury and no risk 

factors can be discharged immediately or with minimal observation, but he related that 

Ryan presented some risk factors, including the subarachnoid hemorrhage and skull 

fracture, which required a longer period of observation. In Dr. McCormick’s opinion, an 

observation period of six hours was appropriate under the circumstances, and it was 

within the standard of care to discharge Ryan after that time inasmuch as he had at 

least remained stable and the second CT scan showed improvement. Dr. McCormick 

further opined that the sequela leading to Ryan’s death was highly unusual and that 

keeping Ryan hospitalized would not have prevented his death. As to the pain 

medication prescribed for Ryan, Dr. McCormick testified that Percocet was appropriate 

for a patient with Ryan’s injuries. 

{¶ 32} Upon review of the evidenced adduced at trial, the court finds that the care 

and treatment Ryan received in the ER at University Hospital fell below the standard of 

care. Although defendant’s experts opined that the duration of Ryan’s observation 

complied with the standard of care, and that Ryan’s sequela was unusual, the court is 

persuaded by Dr. Kiehl’s testimony that the standard of care requires that a patient with 

Ryan’s symptoms be kept for observation until, at the very minimum, 12 hours have 

passed since the injury occurred, particularly because cerebral edema is a known 

complication, and one that takes several hours to manifest. The court is further 

persuaded by Dr. Kiehl’s testimony that, no matter the duration of the observation, it 

was inappropriate to discharge Ryan inasmuch as he was not sufficiently awake and 

alert to be properly evaluated. Indeed, Dean credibly testified that at the time he was 

discharged, Ryan was sleepy, abnormally quiet, and needed assistance simply to walk. 

{¶ 33} Both Dr. Kiehl and Dr. Nichols described a series of progressive symptoms 

that accompany cerebral edema such as that from which Ryan suffered. Dr. Kiehl 

testified that these symptoms, such as heightened blood pressure, somnolence, 

unsteadiness, and seizure-type activity, would have manifested during an appropriate 

period of observation, been recognized by the medical professionals observing Ryan 

and monitoring his vital signs, and led to him receiving appropriate neurological 

evaluation, diagnosis, and treatment. Dr. Nichols explained the pathology of Ryan’s 

cerebral edema and testified to the existence of a range of treatments available 
depending on the nature and severity of the condition, and he opined that if Ryan had 

received such treatment, he should have survived. While Dr. McCormick opined that 

the progression of Ryan’s cerebral edema was such that he would not have survived 

even if he had remained hospitalized, the court finds his opinion lacking in detail and 

less persuasive than the expert testimony offered by plaintiff. 

{¶ 34} The court finds that plaintiff has established that if Ryan had remained 

under observation in the ER for the period of time required by the standard of care, it is 

more probable than not that he would have survived. Moreover, the court finds that this 

failure to comply with the standard of care was the sole proximate cause of his 

outcome. In light of this finding, the court need not determine whether the discharge 

instructions or prescription for Percocet complied with the standard of care. 

{¶ 35} Lastly, defendant asserts that a percentage of liability must be apportioned 

to non-party University Hospital, Inc., which employed the residents involved in Ryan’s 

care and treatment. However, defendant’s employee, Dr. Blomkalns, testified that she 

was responsible for the supervision and education of such residents at all times 

relevant, and that she provided care and treatment to Ryan herself. Dr. Blomkalns 

stated that she arranged for Ryan’s transfer from Fort Hamilton Hospital, that upon 

Ryan’s arrival in the ER she and Dr. Grise evaluated him and planned his course of 

treatment, she saw Ryan throughout his observation period, reviewed the results of the 

second CT scan in conjunction with Drs. Grise and Losiniecki, approved of Ryan being 

discharged, and saw Ryan at the time of discharge, at which time she provided some 

basic oral instructions to Dean and Ryan. Based upon both the care and treatment that 

Dr. Blomkalns rendered, which included developing a course of treatment that failed to 

meet the standard of care, as well as her teaching and supervisory responsibilities 

toward residents, the court finds that liability is attributable solely to defendant. 

{¶ 36} Based on the foregoing, the court finds that plaintiff has proven his claim of 

medical negligence by a preponderance of the evidence and judgment shall be entered 

accordingly. 
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

DEAN SMITH, Admr. 

 Plaintiff 

 v. 

UNIVERSITY OF CINCINNATI 

 Defendant 

Case No. 2008-11389 

Judge Clark B. Weaver Sr. 

JUDGMENT ENTRY

{¶ 37} 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 plaintiff. The case will be set for trial on the 

issue of damages. 

 _____________________________________ 

 CLARK B. WEAVER SR. 

 Judge 

cc: 

 

Brian M. Kneafsey, Jr. 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Donna L. Crossley 

2350 Chiquita Center 

250 East Fifth Street 

Cincinnati, Ohio 45202 
Joseph W. Shea III 

Shirley A. Coffey 

119 West Central Parkway 

300 Court Index Building 

Cincinnati, Ohio 45202 

001 

Filed February 21, 2012 

To S.C. Reporter August 13, 2012