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Knox v. United States

United States District Court, D. South Carolina, Rock Hill Division

June 29, 2018

Zekiya Knox, Plaintiff,
v.
The United States of America; Amisub of SC, Inc., d/b/a Piedmont Medical Center; South Carolina Emergency Physicians, LLC; Jeffrey Warden, MD; Brian Fleet, PA; Piedmont General Surgery Associates, LLC; Alex Espinal, MD; Bret Garretson, MD; and Digestive Disease Associates, Defendants.

          OPINION AND ORDER ON MOTION OF DEFENDANTS JEFFREY WARDEN, MD & SOUTH CAROLINA EMERGENCY PHYSICIANS, LLC TO EXCLUDE EXPERT TESTIMONY AND FOR SUMMARY JUDGMENT (ECF NO. 121)

          CAMERON McGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE

         Through this action, Zekiya Knox (“Plaintiff”) seeks recovery for alleged medical malpractice by a variety of medical providers involved in her care from September 2013 through May 2014.[1] Plaintiff alleges these providers failed to properly and timely diagnose and treat her underlying condition, Crohn's disease, and that this failure led to the development of sepsis. Plaintiff further alleges various Defendants failed to properly treat her sepsis and that the collective errors led to Plaintiff's loss of three limbs. Plaintiff asserts a single claim for medical negligence against all Defendants, though the specifically alleged errors vary between Defendants. See ECF No. 88 (Second Amended Complaint).

         The matter is before the court on motion of Defendants Dr. Warden and SCEP. ECF No. 121. This motion seeks (1) to exclude the causation testimony of Plaintiff's expert Fred Mushkat, MD (“Dr. Mushkat”) as it relates to Dr. Warden's participation in Plaintiff's care, (2) summary judgment in favor of Dr. Warden; and (3) partial summary judgment in favor of SCEP.[2] For reasons set forth below, the motion for exclusion and summary judgment is granted to the extent it relates to care Dr. Warden provided in September 2013 and denied to the extent it relates to care Dr. Warden provided in April 2014.

         FACTS [3]

         Plaintiff alleges and the evidence confirms Dr. Warden was involved in Plaintiff's care when she visited Piedmont's emergency department on two occasions: September 16, 2013 (“September Encounter”) and April 16, 2013 (“April Encounter”). See, e.g., ECF No. 88 ¶¶ 9-14, 32-35; ECF No. 121-2 (September Encounter records); ECF No. 121-8 (April Encounter records). During the September Encounter, Plaintiff presented with symptoms including abdominal pain, which had continued for two months. ECF No. 121-2 at 2. Plaintiff reported she had seen a gastroenterologist who had performed an upper endoscopy during this period. Id.[4]

         Dr. Warden ordered various tests, including an ultrasound and, based on the results of the ultrasound, a computed tomography scan (“CT scan”) with contrast. ECF No. 121-2 at 9, 10. The radiologist reported the CT scan showed abnormalities “most consistent with Crohn's disease.” Id. at 11. Dr. Warden's “Progress Notes” characterize the results as “CT with findings concerning for Crohn's disease” and state Plaintiff was discharged “home with GI follow up.” Id.

         There is a dispute of fact whether Dr. Warden advised Plaintiff of the likelihood she suffered from Crohn's disease. ECF No. 121-2 at 16; ECF No. 131-2 at 1 (Dr. Warden dep. at 12); ECF No. 131-8 at 1 (Plaintiff dep. at 178). However, it is undisputed Dr. Warden discharged Plaintiff with written instructions to follow up with Dr. Garretson's practice. ECF No. 88 ¶ 14; ECF No. 121-2 at 16 (“Disposition”); ECF No. 131-1 at 8 (“Discharge Instructions”). It is also undisputed Plaintiff saw Dr. Garretson on September 19, 2013. He performed a colonoscopy on September 25, 2013, and referred her to a surgeon (Dr. Espinal), who performed further tests to rule out acute appendicitis on that same date. ECF No. 88 ¶¶ 14-17; ECF No. 121-3 at 1-3; ECF No. 121-4; ECF No. 121-5.

         The Second Amended Complaint alleges Dr. Garretson made a diagnosis of Crohn's disease on or around September 25, 2013, but never communicated that diagnosis to Plaintiff or her primary care provider. ECF No. 88 ¶¶ 16.1-16.4, 21. Plaintiff's summary judgment arguments and attachments suggest a somewhat different position: that Dr. Garretson failed to make a definitive diagnosis of Crohn's disease, though he had all the information necessary to do so. See, e.g., ECF No. 131 at 2 (asserting Dr. Garretson was uncertain whether Plaintiff had acute appendicitis or inflammatory bowel disease); ECF No. 131-12 at 7 (Dr. Mushkat dep. at 69, stating Dr. Garretson “apparently [did] not” make a definitive diagnosis of Crohn's following the colonoscopy). Whether or not Dr. Garretson made a diagnosis, Plaintiff alleges and the evidence supports an inference neither Plaintiff nor her primary care provider, NCFMC, were informed of a Crohn's diagnosis. See, e.g., Plaintiff dep. 177:23-178:13, ECF No. 133-6 at 8-9 (testifying she first learned she had Crohn's disease at CMC around the time she was ready to come home); ECF No. 123-23 (records reflect Plaintiff was discharged October 28, 2014); ECF No. 121-5 (Dr. Garretson's records including references to phone conversations with Plaintiff's family members shortly after the colonoscopy and surgical consult but not reflecting communication of a diagnosis).[5]

         While Dr. Garretson may not have communicated any diagnosis or probable diagnosis to NCFMC, that entity was at least aware Plaintiff had recently undergone various tests including a colonoscopy. This is evidenced by records of Plaintiff's September 26, 2013 visit to NCFMC, which indicate her provider at NCFMC was aware Plaintiff had been seen by a specialist and received an endoscopy, colonoscopy, CT scan and ultrasound, but not discussing the results of those tests. E.g., ECF No. 121-6 at 1-3; but see Id. at 16 (January 23, 2014 notation by same provider stating she “just received medical records from September” reflecting abnormal colonoscopy results and questioning what follow up occurred) . This provider opined Plaintiff's difficulties were likely “urological or gynecological.” Id.

         Plaintiff was subsequently seen at NCFMC in January and March 2014; by Dr. Espinal, the surgeon to whom she was referred by Dr. Garretson, in February 2014; and at a different hospital's emergency department (“Pineville emergency department”) in March 2014. See ECF No. 121-5 (Dr. Espinal records); ECF No. 121-6 (NCFMC records); ECF No. 121-7 (Pineville emergency department records).[6] During the February visit, Dr. Espinal prescribed a course of prednisone, which Plaintiff agrees is an appropriate treatment for a Crohn's disease flare up. ECF No. 121-5 at 8-11; ECF No. 88 ¶ 26. Dr. Espinal's records indicate he not only advised Plaintiff to return to Dr. Garretson but scheduled an appointment for that purpose. ECF No. 121-5 at 11 (notation of phone message advising Plaintiff of prescription for prednisone and appointment with Dr. Garretson). Plaintiff denies she was informed of the appointment, which she missed. ECF No. 88 ¶ 26. Other than the one course of prednisone prescribed by Dr. Espinal in February 2014, Plaintiff denies she received any other treatment for Crohn's disease. E.g., ECF No. 88 ¶¶ 26, 26.1, 37 (characterizing her Crohn's disease as “untreated” but acknowledging Dr. Espinal's prescription of one course of prednisone in February 2014). Viewed in the light most favorable to Plaintiff, the evidence supports this allegation as records from other providers indicate treatment focused on suspected urinary tract or gynecological concerns. E.g., ECF No. 121-6 (NCFMC records); but see ECF No. 121-6 at 5 (record of September 25, 2103 visit with Dr. Espinal, indicating he prescribed prednisone on that date, though it is unclear whether the prescription was communicated to Plaintiff or filled).

         Plaintiff was seen at the emergency department of Carolinas Medical Center-Pineville on March 14, 2014. ECF No. 121-7 (Carolinas Medical Center records). During this emergency department encounter, a transabdominal pelvic ultrasound was performed with a reported impression of “essentially normal . . . for age.” Id. at 3. She was treated with pain medications, prescribed antibiotics for a urinary tract infection (“UTI”), and instructed to follow up with a previously scheduled appointment the following Friday. Id. at 4 (referring to “OB/GYN” appointment).

         Plaintiff was seen at NCFMC on March 21, 2014. ECF No. 121-6 at 19-23. Records indicate she was taking antibiotics for a UTI and had been seen by a surgeon regarding her “chronic problem” (apparently referring to the abdominal complaints). Id. at 19. She was scheduled for a pelvic ultrasound. Id. at 21, 22 (indicating referral for evaluation and treatment). The ultrasound was performed at Piedmont on April 4, 2014. Id. at 23. The “Impression” from that ultrasound states: “Tubular structure adjacent to the right ovary and representing either appendix or fallopian tube. Computed tomography may be confirmatory.” Id.

         Dr. Warden saw Plaintiff for the second time on April 16, 2014, when Plaintiff returned to the Piedmont emergency department by ambulance complaining of abdominal pain that had been ongoing for two years. ECF No. 121-8 at 1. Plaintiff reported lower abdominal pain, nausea, vomiting, watery diarrhea, and “urinating out of her vagina . . . this morning which is new.” Id. at 2. She advised she was missing an appointment to receive the results of her recent ultrasound at Piedmont. See Id. at 1 (listing chief complaint as “ongoing abdominal pain x 2 years, seeing Dr. Garretson, missed appointment this morning for Ultrasound results”); ECF No. 131-11 at 10 (Dr. Mushkat report opining Dr. Warden “was obligated to review the ultrasound interpretation from April 4, 2014 at [Piedmont]” and characterizing interpretation as “recommend[ing] considering ordering a CT”). Dr. Warden reviewed records of Plaintiff's September Encounter, ordered blood and urine tests, and performed a vaginal exam. Id. Some but not all test results were available for Dr. Warden's review before Plaintiff was discharged later that day. These results included blood work showing an elevated white count and other indications of infection. Id. at 9. Apparently based on a preliminary urine test, Dr. Warden diagnosed a UTI and prescribed an antibiotic. Id. at 13. While internal emergency department records indicate Plaintiff was instructed to follow up with Dr. Garretson's practice, there is no corresponding record of a written discharge instruction to this effect and it appears to be undisputed Plaintiff did not follow up with Dr. Garretson. Id. at 14.[7]

         The results of two tests, a vaginal wet prep and urine culture, were not available until the following day. Pursuant to the emergency department's procedures, a nurse navigator reviewed these test results and forwarded them for action as she determined appropriate.[8] The nurse navigator forwarded the vaginal test results to physician's assistant Fleet (also an employee of SCEP), who called in a prescription for an antibiotic to address abnormalities noted in the test results. ECF No. 122-3 at 19-24 (Fleet dep. at 19-24). The nurse navigator took no action on the urinalysis culture results, which stated “Multiple organisms present consistent with contamination suggest recollection of specimen.” ECF No. 121-8 at 10, 11; ECF No. 122-5 at 7 (Palmetto Fed.R.Civ.P. 30(b)(6) deponent at 7, addressing procedures followed by nurse navigator).[9] Thus, neither Dr. Warden nor Fleet were informed of the apparent contamination and recommendation the patient return for collection of a new urine specimen.

         EXPERT REPORT AND TESTIMONY

         Plaintiff identified Dr. Mushkat as one of her medical experts. ECF No. 88, Ex. A (preliminary opinion filed with Second Amended Complaint); ECF No. 121-9 (October 22, 2017 letter to Plaintiff's counsel stating Dr. Mushkat's opinions); ECF No. 152 at 2 (Plaintiff's expert witness disclosure). Dr. Warden asserts and Plaintiff does not contest that Dr. Mushkat is the only expert identified to offer an opinion as to whether Dr. Warden's actions or inactions were negligent or contributed to Plaintiff's injuries. ECF No. 121-1 at 8. Dr. Mushkat's opinions are set out in his October 22, 2017 letter to Plaintiff's counsel, which serves as his Expert Report, and in his deposition. See ECF No. 121-9 (Dr. Mushkat's Expert Report); ECF No. 121-10 (Dr. Mushkat dep. excerpts filed by Defendant), ECF No. 131-12 (Dr. Mushkat's dep. excerpts filed by Plaintiff).

         Dr. Mushkat's Report.

         In his Expert Report, Dr. Mushkat summarizes his opinions as to Dr. Warden's actions as follows:

Both evaluations that Dr. Warden performed were done at times during which [Plaintiff's] condition required urgent care. On both the September 2013 and April 2014 encounters, he needlessly endangered Ms. Knox by not seeking consultations and/or admission to the hospital. Her urgent condition of untreated Crohn's disease led to a catastrophic series of events a few weeks after the April 16 encounter, resulting in the loss of three limbs and part of the fingers of her one remaining limb. This catastrophic outcome would not have occurred had Dr. Warden followed an accepted standard of care on either encounter. Neglecting her evolving inflammation, infection and fistula development led to overwhelming infection, septic shock, cardiogenic shock and subsequent loss of her extremities.

ECF No. 121-9 at 11.

         September Encounter.

         Specifically as to the September Encounter, Dr. Mushkat opines Dr. Warden deviated from the standard of care because he did not properly rule out the possibility of acute appendicitis, which “should have remained the number one possibility on his differential diagnosis list.” Id. at 7. Dr. Mushkat also opines Dr. Warden deviated from the standard of care by failing to include his belief Plaintiff had Crohn's disease in the written discharge instructions or other written materials to be passed to Dr. Garretson. Id. at 8. Dr. Mushkat notes Dr. Warden testified “he did not definitively tell Ms. Knox that she had Crohn's disease . . . [but] believes he would have told [her] that her CT was indicative of Crohn's and [would have explained] what Crohn's disease is.” Id. at 8 (asserting records should but do not reflect this information was provided to Plaintiff, instead listing diagnosis only of “abdominal pain”).

         April ...


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