United States District Court, D. South Carolina, Rock Hill Division
OPINION AND ORDER ON MOTION OF
DEFENDANTS BRIAN FLEET, PA & SOUTH
CAROLINA EMERGENCY PHYSICIANS, LLC TO
EXCLUDE EXPERT TESTIMONY AND FOR SUMMARY
JUDGMENT (ECF NO. 122)
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 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.
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
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. 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
REPORT AND TESTIMONY
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).
Mushkat's Report. In what serves as his Expert
Witness Report, Dr. Mushkat addresses Fleet's actions as
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.
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).
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