United States District Court, D. South Carolina, Rock Hill Division
OPINION AND ORDER ON MOTIONS BY AMISUB OF SC, INC.
(D/B/A PIEDMONT MEDICAL CENTER) TO EXCLUDE EXPERT TESTIMONY
AND FOR SUMMARY JUDGMENT (ECF NOS. 124, 125)
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 Plaintiffs 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 motions of Defendant Piedmont
for exclusion of expert testimony (ECF No. 124) and summary
judgment (ECF No. 125). The first motion seeks to exclude a
portion of the anticipated opinion testimony of Plaintiff s
expert Paul Marik, MD ("Dr. Marik"). Specifically,
Piedmont seeks to exclude Dr. Marik's opinion
administration of a 75 mcg/min dose of the vasopressor
Levophed caused Plaintiffs loss of three limbs. ECF No.
second motion seeks summary judgment based on: (1) the
absence of causation evidence; (2) application of S.C. Code
Ann. § 15-32-230, which establishes a gross negligence
standard for recovery for certain emergent, in-hospital
errors, and (3) arguments Piedmont is not liable for the
actions of non-employee physicians. ECF No. 125. For reasons
set forth below, the motion to exclude aspects of Dr.
Marik's causation testimony is denied. The motion for
summary judgment is granted to the extent Piedmont seeks a
ruling S.C. Code Ann. § 15-32-230 applies to the
anesthesiologist's actions during Plaintiffs May 5, 2014
surgery and Plaintiff has failed to proffer evidence to
satisfy the gross negligence standard imposed by that
statute. The motion is denied in all other respects.
claim against Piedmont arises from her brief hospitalization
there, which began on May 4, 2014, and ended with Plaintiff s
transfer to Carolinas Medical Center ("CMC") on May
6, 2014. The Second Amended Complaint includes the following
3. Defendant Amisub of SC, Inc. d/b/a Piedmont Medical Center
("Piedmont") is a South Carolina corporation with
its principal place of business in York County, SC. Piedmont
runs a hospital, and in connection with that, employs a
number medical professionals, including nurses, technicians,
and others. Piedmont also enters into contracts with
certain physicians for the exclusive provision of medical
services in its hospital such as ER physicians,
radiologists, hospitalists, and others. Each of the
underlying medical professionals, be they doctors, nurses, or
others were at all times relevant hereto acting within the
course and scope of their actual or apparent agency or
employment with Piedmont.
37. Instead [of receiving proper treatment for her
Crohn's disease], Ms. Knox was left to continue to suffer
from her condition, only to be returned to [Piedmont] on May
4, 2014. This time, she was ultimately worked up and got a
CT. She had, and has had for months, untreated and, unknown
to her, Crohn's disease. This condition was fully
treatable if caught frankly anytime within a day or two of
her presentation back to [Piedmont] on May 4. The
condition in her lower right abdominal cavity had caused
significant damage to her intestines and caused a life
threatening infection. This infection is called sepsis, a
body wide inflammatory reaction to the raging infection.
38. Sepsis causes a number of life threatening problems
within the human body and the condition is caused by
infection. In the case of Ms. Knox, the sepsis caused
among other things a decrease in her blood pressure. This
necessitated the use of pressors, powerful drugs that
constrict the vessels, in the hope to raise blood
pressure to feed the brain and other vital organs. What is
gained for the brain and other organs comes at the expense of
the extremities. The pressors tend to cut off flow to the
extremities, thus starving them of vital oxygen and nutrition
38.1 If used properly, pressors do not result in limb
loss. There is a critical balance between maintaining
the blood pressure at adequate levels while not causing too
much "squeeze" which can cause a damaging lack of
blood flow. Here, the nurse at the Piedmont ICU used the
pressors in a grossly negligent and reckless manner. This was
a substantial contributing cause of the limb loss.
Particularly, the nurse on the night shift from May 5 to
May 6 overdosed the pressors by giving 75 mics/min (in excess
of the order and the hospital policy), improperly relied on
a knowingly inaccurate arterial line, and failed to
report the signs and symptoms of ischemia that arose during
39. Ms. Knox suffered these consequences of the sepsis and
mismanagement of the pressors-she has lost three limbs. She
went from a college athletic scholarship recipient to a
triple amputee- Two above the knee amputations and a loss of
her right arm below the elbow. She also lost the tips of her
fingers on her remaining hand. All of this was avoidable.
ECF No. 88 ¶¶ 3, 38-39 (emphasis added); see
also Id. at 15, 16 (summarizing allegations of errors by
"Nurses at Piedmont").
motions to exclude Dr. Marik's causation testimony and
for summary judgment are addressed, in order, below.
Exclusion of Dr. Marik's Causation Testimony
Arguments of the Parties
seeks to exclude Dr. Marik's opinion testimony "that
the vasopressor drug [Levophed] administered at a dosage of
75 micrograms per minute ["mcgs/min"] caused
[Plaintiff] to suffer irreversible injuries to her limbs
leading to amputations." ECF No. 124 at 1. Piedmont
argues Dr. Marik's "method for assessing causation
is scientifically unreliable" because he "does not
rely on a single peer-reviewed study" and admits no
scientific experiments have been done. Id. at 1, 2.
In making this argument, Piedmont focuses on eight case
studies, reports, and presentations on which Dr. Marik
relied, in whole or in part, in forming his opinion.
Id. at 8 (explaining the case reports "are
papers reporting observations made in particular clinical
cases," that "do not test his hypothesis[, ]"
"were not designed to test whether a particular dose of
[Levophed] is associated with permanent tissue injury[,
]" and all lacked "placebo control[s]");
id. at 9-14 (addressing each case study, report or
response, Plaintiff argues her claim against Piedmont
focus[es] on her providers' choice and management of
vasopressors, a powerful group of blood pressure-boosting
medications. [She] alleges [Piedmont] doctors misjudged her
illness by attributing her low blood pressure to a blood
vessel issue when the clinical evidence showed her real
problem was inefficient heart function. ... [Piedmont]
medical providers compounded this error by the way they
prescribed and managed the vasopressor [Levophed].
[Plaintiff] received [Levophed] doses far in excess of what
her doctor ordered and far above [Piedmont's] standing
order for the drug. . . . The highest [Levophed] doses
Piedmont providers administered, up to 75 mcg/min, were not
documented anywhere in [Plaintiffs] chart, a violation of
both industry standard and South Carolina law. . . .
[Plaintiff] also faults [Piedmont] for the way [Levophed] was
adjusted from one dose to another. [Levophed] must be
adjusted to attain and maintain a safe blood pressure, but
[Plaintiffs] blood pressure readings were not properly
documented during her May 4, 2014 [sic], surgery and
her nurses failed to realize a blood pressure-measuring
device was reporting misleading data.
ECF No. 140 at 1, 2. Plaintiff further asserts she began
showing signs of ischemia after the Levophed dosage was
increased, but her nurses failed to properly report and her
physicians failed to properly address these signs.
Id. at 3.
argues the "strong connection between high-dose
[Levophed] and ischemia" is supported both by Dr.
Marik's testimony and by two of Plaintiff s treating
physicians at Piedmont. Id. at 3 (citing Dr. Start
dep. at 76-77; Dr. Coplin dep. at 53). She characterizes
Dr. Marik's opinion that 75 mcg/min is an excessive dose
of Levophed as based on maximums recognized by "the
world's leading physicians in this specialty" and
routine limits imposed by hospitals. Id. (citing Dr.
Marik dep. at 15, 16, 97.
subsequent discussion, Plaintiff points to Dr. Marik's
testimony medical providers at Piedmont made multiple errors
in treating Plaintiff during her May 2014 hospitalization
including: (1) incorrectly diagnosing "vasodilatory
shock" rather than "cardiogenic shock," which
led to the treatment with vasopressors (id. at 6
(citing Dr. Marik dep. at 17-18, 53)); (2) using the "wrong
blood pressure measurement" to adjust the Levophed
(id. at 7 (citing Dr. Marik dep. at 51, 52, for
proposition providers improperly relied on systolic blood
pressure rather than mean arterial pressure
("MAP")); and (3) failure by nurses to identify
problems with the electronic monitoring system leading to
improper alteration of dose (id. at 7 (citing Dr.
Marik dep. at 42-48, 53, 54)). Plaintiff argues these errors
"contributed to the decision to administer dangerously
high [Levophed] doses." Id. at 7. While
acknowledging Levophed's manufacturer does not state a
maximum dose, she cites Dr. Marik's testimony that there
is a '"general consensus' among international
leaders in critical care medicine" that doses should be
limited to "20 mcg/min with 40-60 mcg/min doses ... in
extreme cases." Id. (citing Dr. Marik dep. at
14-16, 97 and referring to "research presented at ¶
2017 international medical conference").
argues Dr. Marik's causation opinion is properly based on
the "whole clinical picture, the known pharmacology of
[Levophed], a general consensus on its acceptable use, and
the published cases of negative consequences from high doses.
Id. at 8. She notes Dr. Marik relied on
"differential diagnosis principles" in ruling out
the alternative cause suggested by Piedmont's expert
witness (disseminated intravascular coagulation
("DIC")). Id. at 9; see also Id.
at 17-20 (addressing differential diagnosis analysis).
Plaintiff also refers to multiple notations in medical
records relating to her care at CMC, immediately after her
stay at Piedmont, attributing her limb ischemia to the use of
reply, Piedmont notes Plaintiffs failure to cite any
peer-reviewed study or to defend the adequacy of the case
studies addressed in Piedmont's opening memorandum. ECF
No. 154 at 2. Piedmont also argues Plaintiff is seeking to
"change the argument" by devoting significant
discussion to "unrelated questions such as whether
vasopressors generally increase the risk of ischemia, or
differential diagnosis, or issues with damping the blood
pressure measurement system." Id. at 3.
Piedmont notes its motion "deals with Dr. Marik's
causation opinion . . . that the administered dose of 75
mcg/min caused the Plaintiff s limb ischemia and resulted in
Plaintiff s amputations." Id. at 3.
recently summarized in Plaintiffs Appealing CMO 100 v.
Pfizer, Inc., __F.3d__, No. 17-1140 (4th Cir. June 12,
In assessing the admissibility of expert testimony, a
district court assumes a "gatekeeping role" to
ensure that the "testimony both rests on a reliable
foundation and is relevant to the task at hand."
[Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
597 (1993)]. The district court's inquiry is a
"flexible one," whose focus "must be solely on
principles and methodology, not on the conclusions that they
generate." Id. at 594-95. Dauberfs
design is to "make certain that an expert, whether
basing testimony upon professional studies or personal
experience, employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an
expert in the relevant field." Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152(1999).
Slip. Op. at 10.
is correct in noting Plaintiffs response focuses on issues
not raised in its motion for exclusion. That motion is
limited to challenging the admissibility of Dr. Marik's
causation testimony linking the 75 mcg/min dose of Levophed
to Plaintiffs ultimate injuries. To the extent Plaintiff
addresses other alleged errors, her arguments are not germane
to the sole issue raised in Piedmont's motion for
exclusion. Nonetheless, focusing on the sole issue raised,
the court finds Piedmont's motion should be denied.
challenge focuses on the sufficiency of eight case reports,
articles, and presentations to support Dr. Marik's
causation opinion. The court agrees (and Plaintiff does not
contest) these reports do not, alone, support Dr. Marik's
causation opinion. Dr. Marik's causation opinion does
not, however, rest on so narrow a foundation. He, instead,
relies first on what appears to be an undisputed premise that
vasopressors in large doses may cause limb
ischemia. Dr. Marik then applies differential
diagnosis techniques to rule out other causes, most
critically the alternative cause Piedmont's expert, Dr.
Hotchkiss, opined was the sole cause of Plaintiffs limb loss,
disseminated intravascular coagulation or "DIC."
See Westberry v. Gislaved Gummi AB', 178 F.3d
257, 262-63 (4th Cir. 1999) (defining differential diagnosis
as "a standard scientific technique of identifying the
cause of a medical problem by eliminating the likely causes
until the most probable one is isolated" and holding
"a reliable differential diagnosis provides a valid
foundation for an expert opinion").
Marik noted the absence of any statement in Plaintiffs chart
that she had DIC. Dr. Marik dep. at 66 (also stating he was
"not sure she met the full-blown criteria for DIC"
and opining she, instead, had "coagulopathy of
sepsis"). He explained that a DIC diagnosis requires
coagulopathy as well as "bleeding at multiple
sites," and Plaintiffs records support ...