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Knox v. United States

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

June 29, 2018

Zekiya Knox, Plaintiff,
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.



         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 Defendant Fleet and his employer, SCEP. ECF No. 122. This motion seeks (1) to exclude the causation testimony of Plaintiff's expert Fred Mushkat, MD (“Dr. Mushkat”) as it relates to Fleet's actions or inactions in his participation in Plaintiff's care, and (2) summary judgment in favor of Fleet and SCEP to the extent SCEP might be held liable as Fleet's employer. For reasons set forth below, the motion is granted in both respects.[2]


         Plaintiff alleges and the evidence confirms Fleet had only minimal involvement in her care. See, e.g., ECF No. 88 ¶¶ 35, 36. That involvement occurred on April 17, 2014, when Fleet reviewed results of a vaginal wet prep culture and prescribed an antibiotic. ECF No. 122-2 at 15 (PMC Medical Chart); ECF No. 122-3 at 26-28 (Fleet dep.). That culture was taken on April 16, 2014 when Plaintiff was seen in Piedmont's emergency department by Dr. Warden. ECF No. 122-2 at 8; ECF No. 122-3 at 27. The results of the culture were communicated to Plaintiff by a nurse navigator (an employee of Piedmont) on April 18, 2014. ECF No. 122-2 at 15.

         Pursuant to the “standard practice in the emergency room, ” a “nurse navigator” determined what materials were relevant for Fleet's review and presented them to him. ECF No. 122-3 at 19- 24.[3] Fleet was not shown and, consequently, did not review the results of a urine culture taken during the same visit. The results of that culture indicated possible contamination and recommended a new specimen be collected. Id. at 15-19. Fleet testified he would not have taken any other action, even if he had seen the results of the urine culture because Plaintiff had already been given medication for a urinary tract infection (“UTI”) based on the preliminary urinalysis performed on April 16, 2014. E.g., id. at 15.


         Plaintiff identified Dr. Mushkat as one of her medical experts. ECF No. 88, Ex. A (preliminary opinion attached to Second Amended Complaint); ECF No. 122-6 (Dr. Mushkat's October 22, 2017 letter to Plaintiff's counsel stating his opinions); ECF No. 152 at 2 (Plaintiff's expert witness disclosures). Fleet asserts and Plaintiff does not contest that Dr. Mushkat is the only expert identified to offer an opinion as to whether Fleet's actions or inactions were negligent or contributed to Plaintiff's injuries. The only evidence presented of Dr. Mushkat's opinions is set forth in his October 22, 2017 letter to Plaintiff's counsel, which presumably serves as his Expert Witness Report, and in his deposition. See ECF No. 122-6 (letter); ECF No. 122-7 (Dr. Mushkat dep. excerpts filed by Fleet); ECF No.131-12 (Dr. Mushkat dep. excerpts filed by Plaintiff).

         Dr. Mushkat's Report. In what serves as his Expert Witness Report, Dr. Mushkat addresses Fleet's actions as follows:

Regarding the follow up actions that Brian Fleet, P.A. took on April 17, 2017, based upon his testimony, it appears that he was supplied the results of the wet prep test along with the following: UTI, Keflex, negative pregnancy test and no allergies. On this basis alone, Brian Fleet prescribed an additional antibiotic, Flagyl. Mr. Fleet did not review Ms. Knox's medical record that had given rise to the test in the first place or the prior [Emergency Department] treatment. An accepted standard of care required Mr. Fleet to review Ms. Knox's medical records from that most recent visit. If he had done so, he would have seen the [urine] culture report that recommended re-collection of the specimen. Seeing that would have called into question the basis of the diagnosis and should have led to further evaluation including calling the patient back for reevaluation. That did not occur.

ECF No. 122-6 at 11, 12.

         Dr. Mushkat Deposition Testimony. In his deposition, Dr. Mushkat conceded Fleet prescribed an appropriate antibiotic based on the lab results he was given. ECF No. 122-7 at 20-22 (Dr. Mushkat dep. at 104-06). Dr. Mushkat, nonetheless, opined Fleet deviated from the applicable standard of care by failing to review Plaintiff's other lab results. Id. According to Dr. Mushkat, had Fleet done so, he would have seen Plaintiff had “a complicated urinary tract infection, multiple organisms, ” and a high white cell count. Id. at 22 (Dr. Mushkat dep. at 106). At that point, Fleet should have taken his concerns to a physician on duty, whose responsibility it would have been to decide what further follow up was appropriate. Id.; see also Id. at 23 (Dr. Mushkat dep. at 107, agreeing Fleet's only further responsibility was to raise concerns with a physician).

         Dr. Mushkat opined that if Fleet took his concerns to a physician other than Dr. Warden, “there might have been a very different outcome.” Id. at 24 (Dr. Mushkat dep. at 108). If Fleet took his concerns to Dr. Warden, however, Dr. Warden “most likely” would have said he had “already analyzed th[e] whole problem” and ...

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