TOKISHA M. INGRAM, Plaintiff,
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.
in the Court of Appeals 25 May 2017.
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
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
Northup McConnell & Sizemore, PLLC, by Isaac N. Northup,
Jr., for defendant-appellees, Amy K. Ramsak, M.D. and TST
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.
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.
factual background of plaintiff's case took place over 23
and 24 February 2010.
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.
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.
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.
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."
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.
next day, 24 February 2010, plaintiff returned to Pardee
Hospital ER at about 3:36 p.m. 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
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
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.
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
. . . . 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
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."
Treatment at Mission Hospital
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." 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.
had additional medical treatment after her discharge from the
hospital and eventually lost all of her fingers and both legs
below the knee.
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."
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.
Medical Malpractice Claims
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).
Admission of Clinical Studies
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.) 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.)
Preservation of Objection
Defendants contend plaintiff failed to preserve her objection
to the admission of evidence regarding the three studies --
ProCESS,  ProMISE,  and ARISE(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.
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
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).
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
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"). 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. 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.
plaintiff's expert witnesses,  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 ...