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Ingram v. Henderson County Hospital Corporation, Inc.

Court of Appeals of North Carolina

May 1, 2018

TOKISHA M. INGRAM, Plaintiff,
v.
HENDERSON COUNTY HOSPITAL CORPORATION, INC., d/b/a MARGARET R. PARDEE MEMORIAL HOSPITAL, RYAN CHRISTOPHER DAVIS, M.D., ROBERT C. BOLEMAN, M.D., HENDERSONVILLE EMERGENCY CONSULTANTS, PC, AMY K. RAMSAK, M.D., and TST MEDICAL, PA., Defendant.

          Heard in the Court of Appeals 25 May 2017.

          Appeal by plaintiff from order entered on or about 10 October 2014 by Judge Martin B. McGee and judgment entered on or about 24 February 2016 by Judge Mark E. Powell in Superior Court, Henderson County No. 11 CvS 890.

          Ferguson Chambers & Sumter, P.A., by James E. Ferguson, II, for plaintiff-appellant.

          Roberts & Stevens, P.A., by Ann-Patton Hornthal and Phillip T. Jackson, for defendant-appellees Henderson County Hospital Corporation, Inc. d/b/a Margaret R. Pardee Memorial Hospital.

          Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Emma J. Hodson, for defendant-appellees Ryan Christopher Davis, M.D., Robert C. Boleman, M.D., and Hendersonville Emergency Consultants, PC.

          Northup McConnell & Sizemore, PLLC, by Isaac N. Northup, Jr., for defendant-appellees, Amy K. Ramsak, M.D. and TST Medical, PA.

          STROUD, Judge.

          Plaintiff sued defendants for medical malpractice arising out of the care they provided to her for sepsis. A jury ultimately found all defendants not liable. On appeal, plaintiff contends the trial court erred in several evidentiary rulings and in dismissing her claim arising out of nursing care against defendant Henderson County Hospital Corporation, Inc., d/b/a Margaret R. Pardee Memorial Hospital. After careful review, we affirm.

         Many witnesses testified regarding plaintiff's illness, the medical care she received, and the standards of care for the diagnosis and treatment of her condition. This overview of plaintiff's medical care omits many details and is based primarily upon plaintiff's medical records and the testimony of Dr. David P. Milzman, plaintiff's expert witness, who provided the initial summary of the facts to the jury. Defendants disputed the interpretation and meaning of some facts, but for purposes of the issues on appeal, we need not summarize defendants' evidence and contentions.

         I. Factual Background

         The factual background of plaintiff's case took place over 23 and 24 February 2010.

         A. 23 February 2010

         Plaintiff, then age 35, went to the emergency room at defendant Henderson County Hospital Corporation, Inc., d/b/a Margaret R. Pardee Memorial Hospital ("Pardee Hospital") on 23 February 2010 at about 9:17 p.m. Plaintiff reported that she had severe pain in her back right side, which she described as at a level of 10 out of 10. Plaintiff also had a fever, nausea, vomiting, fatigue, and shortness of breath. Hospital employees took plaintiff's blood pressure and temperature; plaintiff's heart rate was 103 and her blood pressure was 135/83.

         Within about five minutes, plaintiff was seen by defendant Ryan Christopher Davis, M.D. Defendant Davis evaluated plaintiff and noted that she had abdominal cramps, vomiting, and body aches; he noted her pain was mild, even though she had identified her pain as level 10 out of 10 to a nurse a few minutes earlier. Defendant Davis did not note that plaintiff's pain was on her right side and noted no prior surgeries, although plaintiff "had had her tubes tied." Defendant Davis did a physical examination of plaintiff and noted that plaintiff had tenderness but no "guarding and rebound" which would indicate a "really severe abdominal exam." Defendant Davis did not perform a pelvic examination; he did order two laboratory tests, one to check her urine and "basic chemistries" which shows "kidney function and . . . basic electrolytes, sodium, potassium chloride, serum bicarbonate and sugar." Defendant Davis prescribed, and plaintiff received, Toradol, an intravenous ("IV") pain medication; Zofran, for vomiting; and IV fluids.

         By about 10:30 p.m., plaintiff's blood pressure was a little lower but her heart rate was still 103; plaintiff reported her pain as 7 out of 10. Defendant Davis received plaintiff's lab test results showing her creatinine was slightly elevated and her urine showed a trace of blood and "a little bit of sugar, " and white blood cells. These results usually mean "you are fighting a bacterial infection" and indeed plaintiff's urine also had "a few bacteria." Defendant Davis returned to see plaintiff and reexamined her, noting that she felt better. Defendant Davis gave plaintiff an oral antibiotic, Levaquin 500 milligrams, and Vicodin for pain. Defendant Davis diagnosed plaintiff with vomiting and a urinary tract infection. Defendant Davis gave plaintiff prescriptions for Cipro, an oral antibiotic, and Vicodin for pain. Defendant Davis discharged plaintiff by 11:04 p.m.

         Plaintiff's expert witness, Dr. Milzman, testified that Defendant Davis "got a lab result" but "ignored the signs and symptoms" plaintiff reported. Specifically, plaintiff did not report "the most common thing in a urine infection, " burning while urinating nor did she report frequent urination, urgency, or pain in her bladder. Dr. Milzman further testified that if part of plaintiff's issue was dehydration from vomiting, plaintiff's heart rate should have dropped some after receiving the IV fluid, but it did not. Plaintiff was still in pain, and "[p]ain that bad, that's not a urine infection."

         Dr. Milzman opined that Defendant Davis should have kept plaintiff in the hospital until he could get plaintiff's heart rate under 100 and get better pain relief. Dr. Milzman also testified that Defendant Davis needed to determine why plaintiff's right side was hurting so much by performing an ultrasound or a CAT scan. In addition, Defendant Davis should have "done a blood count" which may have indicated a high white blood cell count as based on the tests done, the elevated creatinine level could indicate kidney injury. Dr. Milzman ultimately testified that Defendant Davis failed to provide proper care by failing to "recognize the initial and progressive severity" of plaintiff's condition, failing "to properly evaluate changing values in her condition, including a heart rate and her pain complaint, " failing to give her IV antibiotics which would generally get "around faster to the body, " failing to examine her properly on her right side pain, and failing to improve her condition before she was discharged.

         B. 24 February 2010

         The next day, 24 February 2010, plaintiff returned to Pardee Hospital ER at about 3:36 p.m.[1] A nurse noted plaintiff had a urinary tract infection and hypotension/tachycardia; hypotension is low blood pressure, and tachycardia is a high heart rate. The nurse noted plaintiff as a priority level 2 patient, which is one level higher than she was assigned the night before, but instead of having a physician see plaintiff, hospital personnel sent her to the "walk-in side" of the ER where she was seen by a physician assistant; this would indicate that they believed her condition to be "less emergent." Plaintiff's temperature was 97; her heart rate was 100, and her blood pressure was 99/51 - "a significant drop" from the night before; her pain level was still 10 out of 10. Mr. Ursin, a physician assistant, saw plaintiff at about 4:30 p.m. Mr. Ursin noted plaintiff's treatment from the night before and that plaintiff had an appointment with her doctor the next day. Plaintiff reported that she was still nauseated and vomiting and had vomited up her medication; she also felt dehydrated. Mr. Ursin noted plaintiff had body aches and chills.

         Although it had been about an hour since plaintiff's blood pressure had been checked, Mr. Ursin did not recheck it nor did he note any problems from her physical exam. Mr. Ursin ordered 500 cc of IV fluid, some morphine, Toradol for pain (although he did not chart the pain), an IV antibiotic, and Zofran. Dr. Milzman noted that 500 cc of fluid would not be enough to raise plaintiff's blood pressure, giving plaintiff morphine could cause her blood pressure to drop, and Toradol could harm her kidneys; again, plaintiff's creatinine levels from the night before indicated she may have kidney injury. Mr. Ursin also ordered labs. A little more than an hour later, plaintiff's lab results came back showing her creatinine had gone up indicating "her kidney function is much worse . . . . [F]or the first time we have a blood count, and it's low ..... [A] low blood count goes along with being severely infected in some patients."

          About 6:00 p.m., a nurse went to check on plaintiff and could not get a blood pressure reading and could only feel a faint pulse; her blood pressure was 60 palpable, meaning she was in shock and did not have "enough blood pressure to adequately perfuse the body." Mr. Ursin directed that the remainder of the 500 cc of fluid be administered, but he did not direct any other care or consult a physician. Defendant Robert C. Boleman was on duty at the time.

         At 6:50 p.m., plaintiff's blood pressure was even lower, 50/25. Mr. Ursin first consulted defendant Amy K. Ramsak, M.D. At about 7:56 p.m., defendant Boleman first saw plaintiff. Defendant Boleman ordered more antibiotics and started dopamine, a medication to help raise blood pressure. At this point, plaintiff started to receive critical care. Over the next hour, plaintiff received additional medication to raise her blood pressure, fluid, and antibiotics. At 9:01 p.m., defendant Ramsak who had previously provided other orders by phone, ordered a lactate level; the result was 5.6, which is "very high" and placed plaintiff at "50 percent, probably closer to 60 percent mortality at that time." By 11:00 p.m., plaintiff was given a breathing tube and placed on a ventilator; hospital personnel continued to work on resuscitating plaintiff through that night and into the next morning. Plaintiff had progressed from shock to septic shock; Dr. Milzman described this progression:

[W]e have different criteria that we use for describing an infectious syndrome which takes into account any two of up to seventeen combinations of heart rate and temperature and white blood cell count and respiratory effort measurement. And so that's called what we call SIRS or systemic inflammatory response syndrome, which is basically an infectious series of information that we use to identify people at big risk. So you can have an infection.
We talked about sepsis, when now the infection has created changes in the body's response. So not just a sore throat, a strep throat, but a -- maybe high fever and high heart rate, that will get you sepsis. . . .
. . . . . . . So if you want to think of it as a spectrum . . . . there's regular infection and then what we calls SIRS, which is systemic inflammatory response syndrome. And then there's sepsis, a source of infection plus these criteria. So that's sepsis.
And then there's severe sepsis which is you have the infection with all of these markers, plus the body is starting to fail. Either one or two organ systems start to fail. Like the kidneys start to fail. Like with Ms. Ingram, unfortunately. I told you her creatinine, which is a marker for kidney injury, is starting to go up. Later on she has trouble breathing, can't breathe on her own. They have to put a breathing tube in, put her on a ventilator which happens at 11:00 p.m. that night. So the body -- different organ systems in the body, the lungs, now are starting to fail.
. . . . And you go from severe sepsis with a mortality rate of anywhere between 20 and 40, depending who you read, to septic shock, where now you have a mortality of 50 to 70 percent.

         Dr. Milzman testified that Mr. Ursin did not provide adequate care because he did not make his supervising physician aware of plaintiff's 60 palp blood pressure when this was first discovered about 6:00 p.m., and he did not consult with the ICU and ask that plaintiff be admitted. Dr. Milzman also testified that defendants had missed the opportunities to intervene the night before or much earlier on 24 February after plaintiff returned to the ER. "[I]f you can intervene and prevent the patient from going into shock, you have a much better chance at survival."

         C. Treatment at Mission Hospital

         The next day, 25 February 2010, plaintiff was transferred to another hospital, Mission St. Joseph's Hospital in Asheville, because she needed "dialysis to get off the excess fluid."[2] Plaintiff was hospitalized for over a month. Upon discharge from Mission Hospital,

[i]t was noted in the records that a tampon was left in her at the time of catheterization and it was not immediately discovered. She had many diagnoses including severe systemic inflammatory response syndrome, suggestive of overwhelming sepsis. She had extensive finger and toe necrosis and skin sloughing with necrosis on both calves. Her fingers were eventually surgically removed and she is to have her toes removed in the near future. She was discharged from Mission Hospital on March 29, 2010.

         Plaintiff had additional medical treatment after her discharge from the hospital and eventually lost all of her fingers and both legs below the knee.

         II. Procedural Background

         Plaintiff filed a complaint against defendants in May of 2011, alleging that each defendant was negligent in providing care and this resulted in her devastating injuries. Defendants all filed answers, denying the substantive allegations. Defendants also filed various motions, but for purposes of this appeal, we will not discuss them all. In March of 2013, defendant Pardee Hospital moved to dismiss "[p]laintiff's complaint to the extent the complaint alleges or asserts that said Defendant is liable for the negligence of any health care provider except for Defendants Ryan Christopher Davis, M.D. and Robert C. Boleman, M.D., the health care providers that Plaintiff's 9(j) expert identified as being negligent." In October of 2014, the trial court allowed the motion and dismissed plaintiff's claims against defendant Pardee Hospital "to the extent the Complaint asserts a claim for negligence based upon the theory that the nursing staff of Defendant County Hospital Corporation, Inc., d/b/a/ Margaret R. Pardee Memorial Hospital failed to comply with the applicable standard of care."

         The jury was impaneled on 29 January 2016, and the jury entered its verdict on 23 February 2016. The jury ultimately determined plaintiff had not been "injured by the negligence" of any defendant. In February of 2016, the trial court entered judgment determining plaintiff should "recover nothing" and her action was dismissed with prejudice. Plaintiff appeals both the October 2014 order and the February 2016 judgment.

         III. Medical Malpractice Claims

         In Smith v. Whitmer, this Court summarized the elements of a medical malpractice claim and how the plaintiff must prove those elements:

In a medical malpractice claim, a plaintiff must show (1) the applicable standard of care; (2) a breach of such standard of care by the defendant; (3) the injuries suffered by the plaintiff were proximately caused by such breach; and (4) the damages resulting to the plaintiff. Section 90-21.12 of the North Carolina General Statutes prescribes the appropriate standard of care in a medical malpractice action:
In any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental, or other health care, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.
Because questions regarding the standard of care for health care professionals ordinarily require highly specialized knowledge, the plaintiff must establish the relevant standard of care through expert testimony. Further, the standard of care must be established by other practitioners in the particular field of practice of the defendant health care provider or by other expert witnesses equally familiar and competent to testify as to that limited field of practice.
Although it is not necessary for the witness testifying as to the standard of care to have actually practiced in the same community as the defendant, the witness must demonstrate that he is familiar with the standard of care in the community where the injury occurred, or the standard of care of similar communities. The same or similar community requirement was specifically adopted to avoid the imposition of a national or regional standard of care for health care providers.

159 N.C.App. 192, 195-96, 582 S.E.2d 669, 671-72 (2003) (citations and quotation marks omitted).

         IV. Admission of Clinical Studies

         Plaintiff first contends the trial court erred in allowing admission "into evidence, through defense questioning, of testimony by experts regarding three studies published four to five years after the events giving rise to plaintiff's claims[.]" (Original in all caps.)[3] Plaintiff contends the three studies "erroneously addressed the standard of care[, ]" "the patients in the study were not comparable to plaintiff[, ]" "the outcomes in the studies were irrelevant[, ]" "the purpose of the studies was irrelevant[, ]" and "the probative value of the testimony was substantially outweighed by its prejudicial effect[.]" (Original in all caps.)

         A. Preservation of Objection

          Defendants contend plaintiff failed to preserve her objection to the admission of evidence regarding the three studies -- ProCESS, [4] ProMISE, [5] and ARISE[6](collectively "three studies") -- and has waived review on appeal because plaintiff also presented evidence related to the three studies on direct examination in questioning her own expert witness. Defendants agree they first mentioned and introduced evidence regarding the studies and also that plaintiff made a continuing objection which the trial court allowed. But defendants argue that despite the valid continuing objection, plaintiff later waived that objection when her counsel asked questions regarding the studies on direct examination. According to defendants' argument, plaintiff could not ask questions on direct examination regarding the three studies without waiving her objection.

         Although defendants' argument focuses on a few lines of the transcript, we have reviewed all of the relevant testimony and full context of plaintiff's questioning regarding the three studies. Once the trial court had allowed the evidence regarding the three studies over plaintiff's objection, she was not required to avoid mention of the studies but was permitted to attempt to limit or avoid any prejudice from the evidence without losing the benefit of the continuing objection:

The well established rule that when incompetent evidence is admitted over objection, but the same evidence has theretofore or thereafter been admitted without objection, the benefit of the objection is ordinarily lost, but, as stated by Brogden, J., in Shelton v. Southern R. Co., 193 N.C. 670, 139 S.E. 232, 235: The rule does not mean that the adverse party may not, on cross-examination, explain the evidence or destroy its probative value, or even contradict it with other evidence upon peril of losing the benefit of his exception.

State v. Godwin, 224 N.C. 846, 847-48, 32 S.E.2d 609, 610 (1945) (emphasis added) (quotation marks omitted).

         Plaintiff's questioning regarding the three studies pointed out their limitations and differences and were intended to demonstrate her contention that they were not relevant to her case. Since the trial court allowed the evidence over her objection, plaintiff could attempt to "contradict" the studies with her witnesses' testimonies. See id. Because plaintiff properly preserved her continuing objection, her later questioning on direct examination of her witnesses regarding the three studies did not waive her objection. B. EGDT and the Three Studies

         During the trial, several medical studies were discussed. Plaintiff contended that she should have received early goal-directed treatment ("EGDT") and defendants countered with other studies. The EGDT protocol was described in an article published in 2001 in which Dr. Emanuel Rivers was the principal investigator ("Rivers study").[7] Dr. Rivers compared the outcomes in two groups of patients presenting with sepsis; this trial was done at a single hospital and enrolled 263 patients.[8] Rivers study at 1368. The control group was the "standard-therapy group" which was "treated at the clinicians' discretion according to a protocol for hemodynamic support . . . with critical-care consultation, and were admitted for inpatient care as soon as possible." Id. at 1370 (footnote omitted). The other group received the EGDT protocol. See id.

         One of plaintiff's expert witnesses, [9] Dr. Daniel Snider, explained EGDT and the results of the Rivers study in his testimony. All of the patients presented with sepsis, and one group received the EGDT protocol -- "from the beginning, starts IV fluid, starts antibiotics, aggressive IV fluids" -- and the other group received the "standard therapy" at that time. Dr. Snider testified that Dr. Rivers

found that the patients that he had enrolled in his protocol which I called Early -- he identified them as soon as he saw SIRS, which is basically vital signs and a white blood cell count if he needs it -- Goal-Directed -- he had these goals, he wanted to get fluids in the patient a fast as he could. That was a goal. He wanted to maintain a blood pressure with pressors, dopamine or Levophed which is a brand name for norepinephrine which is a precursor to adrenaline. Probably more than you need know. Goal-Directed, by trying to achieve these goals, good blood pressure, good fluid resuscitation, antibiotics, those are all worthy goals in a septic patient -- Therapy. So that's EGDT that we've been hearing over and over.
What did he find in the treatment of the early goal-directed therapy? He found that in six hours they had a lower heart rate, they had a higher blood pressure. That's significant. Blood pressure is where it's at. You want that blood pressure high. Because a low blood pressure, shock in the worst case, means you are not getting oxygen to the tissue, the tissue is dying, your lactate acid is going up, your kidneys are failing, your brain is starting to shut down, you're becoming lethargic or worse, comatose, your breathing is not functioning, you have to go on a ventilator. All bad things. But he found that the blood pressure was coming up at six hours in the treatment group that got the goal-directed therapy, early goal-directed therapy.
So what else did he find? Well, ultimately following these patients out further he found that 46 percent survived from septic shock versus 30 percent in the treatment arm that did not get early goal-directed therapy. 46 percent versus 30. That's for every seven patients that would have died, one of those patients actually survived, they got to go home and with be their family. So it was a big deal saving one life that you would have lost out of every seven.
So what happened next? Well, this was published in the New England Journal of Medicine. It's pretty prestigious, no matter what you've heard. I've certainly never been published in the New England Journal, and I would love to be. It's - the world took notice. Okay? In 2004 an international committee made up of doctors from all over the world, Germany, Latin America, Japan, United States of course, of all kinds of doctors, critical care doctors, emergency medicine doctors, surgeons, infectious disease doctors, all of these committees and doctors and countries got together and they came up with guidelines, much of what was based on Dr. Rivers' studies, Guidelines For the Treatment of Sepsis. And it was published in, I'm sure - I'm quite confident, more than one journal because it was just so far-reaching.
And those guidelines recommended certain things. They recommended rapid fluids. They recommended antibiotics. They recommended all of this within six hours. They even recommended things that -- that Dr. Rivers had found would be helpful but have since found to be maybe not as helpful as he thought. But they ...

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