United States District Court, D. South Carolina, Rock Hill Division
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
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. 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).
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. 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.
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.
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.
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
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
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
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). 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
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”
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.
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.
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. 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). Thus, neither Dr.
Warden nor Fleet were informed of the apparent contamination
and recommendation the patient return for collection of a new
REPORT AND TESTIMONY
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).
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.
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”).