SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI 2014-CA-00440

Transcription

1 E-Filed Document Sep :07: CA SCT Pages: 24 SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI 2014-CA TABITHA PRAYER, FOR AND ON BEHALF OF THE ESTATE AND WRONGFUL DEATH BENEFICIARIES OF JONES TOY, DECEASED APPELLANT V. GREENWOOD LEFLORE HOSPITAL; THE CITY OF GREENWOOD, MISSISSIPPI; LEFLORE COUNTY; and JOHN and JANE DOES 1-10 APPELLEE REPLY BRIEF OF APPELLANT (Oral Argument Requested) COUNSEL FOR APPELLANT: John F. Hawkins, Esquire HAWKINS GIBSON, PLLC 628 North State Street (39202) Post Office Box Jackson, Mississippi Telephone: (601) Facsimile: (601) W. Andrew Neely, Esquire (MSB#102168) W. Eric Stracener, Esquire (MSB# 10429) STRACENER & NEELY, PLLC 304 North Congress Street Post Office Box Jackson, Mississippi Telephone: (601) Facsimile: (601)

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF CASES AND AUTHORITIES... ii INTRODUCTION...1 ARGUMENT... 3 CONCLUSION CERTIFICATE OF SERVICE i.

3 TABLE OF CASES AND AUTHORITIES CASE PAGE University Med. Ctr. v. Martin 994 So. 2d 740, 746 (Miss. 2008).3 Univ. of Miss. Med. Ctr. v. Pounders 970 So. 2d 141 at 147 (Miss. 2007)...4 ii.

4 INTRODUCTION Mr. Jones Toy was only 54 years old at the time he presented to the Appellee hospital for a non-emergent, outpatient procedure to remove the tip of his right index finger on September 17, (R. 133, R.E. 14). The debridement procedure was necessary but it was not an emergency. Indeed, Mr. Toy walked into the hospital for the subject outpatient procedure and was scheduled to go home that same day. (R. 134; R.E. 15). Tragically, after being anesthetized on that date, Mr. Toy never again communicated with anyone. He was totally unresponsive from the time of the surgery until the date of his death 18 days later on October 5, (Please see for example, T. 18; P1 Toy/GLH at 00005, 19, 23, 29, 32, 35). It is undisputed that Mr. Toy suffered a cardiac arrest and anoxic brain injury that ultimately caused his death. (P1 Toy/GLH at 00003). Although Appellee s expert physician testified he was uncertain of the timing of Mr. Toy s brain injury, he admitted that Mr. Toy did in fact suffer from a severe brain injury that ultimately killed him. (T. 299, 320). The only reasonable conclusion that is consistent with the medical record in this case is that Mr. Toy suffered the anoxic brain injury during the subject surgery. The trial court incorrectly held that the GLH employees met or exceeded the standard of care. The trial court wrongly held that Mr. Toy did not suffer cardiac arrest and anoxic brain injury during surgery proximately causing his death. 1

5 Specifically, the lower Court held that Mr. Toy did not suffer a hypoxic brain injury while in the surgical suite on September 17, 2008 and at no time during the surgical procedure or the resuscitative efforts was Mr. Toy deprived of oxygen for a sufficient time to induce hypoxic events. (R. 171; R.E. 44). The trial court s findings and conclusions in this regard are manifestly erroneous and constitute reversible error. The lower court s findings of fact and conclusions of law are not supported by substantial, credible and reasonable evidence and this case must be reversed. It is respectfully submitted that after a full and thorough review of the entire record on appeal, this Court should conclude that due to the negligence of nurse anesthetist Jody Simcox, Mr. Jones Toy suffered a cardiac arrest and brain injury during the September 17, 2008 surgery from which he never recovered. The testimony offered by Simcox in this case is belied by his own anesthesia record, self-serving, lacks credibility and is undermined by the post-surgical hospital record. Moreover, as demonstrated in the principal brief of Appellant and in more detail herein, certain testimony of the Appellee s own witnesses supports the plaintiff s claims of medical or nursing negligence and proximate cause of damages. As will be demonstrated in more detail infra, it is undisputed that Mr. Simcox failed to follow the applicable standard of care to appropriately address the 2

6 problems that arose during Mr. Toy s surgery. As a result, the life saving ACLS protocols that were finally instituted by his colleague, CRNA Weathers, were untimely and ineffective. It is respectfully submitted that the trial court s acceptance of the hospital s unsupported claims that Mr. Toy suffered cardiac arrest after the surgery and not during the surgery, and that the GLH employees immediately and timely responded to Mr. Toy s cardiac arrest with life saving ACLS protocols cannot withstand scrutiny on appeal. Those contentions and findings by the trial court are simply wrong and absolutely inconsistent with any reasonable review of the credible, established and objective evidence in this record. For these reasons, the trial court s findings of fact and conclusions of law are clearly erroneous and must be reversed. ARGUMENT The Appellee hospital understandably relies heavily on the well-established standard of review in support of its position on appeal. A trial judge s factual findings and credibility determinations are afforded deference in an appeal arising from a bench trial under the Mississippi Tort Claims Act. It is true in a case such as this that the lower Court s findings of fact will be accepted provided the findings are based on reasonable inferences and do not present manifest or clear error. University Med. Ctr. v. Martin, 994 So. 2d 740, 746 (Miss. 2008). 3

7 However, it is also true that this Court will not hesitate to reverse a trial court s findings if those findings and conclusions are not supported by substantial, credible and reasonable evidence and/or where the trial court ignores evidence. Univ. of Miss. Med. Ctr. v. Pounders, 970 So. 2d 141 at 147 (Miss. 2007) ( a court s ruling is not based on substantial evidence if glaring obvious evidence is ignored. ) It is respectfully submitted that where, as here, the objective, indisputable evidence contained in the medical record contradicts the self-serving, inconsistent testimony of the defense witnesses on obviously critical factual issues, this Court is not required to accept the trial court s findings and must conclude that the trial court committed reversible error. In this case the trial court ignored obvious and critical evidence contained in the objective medical record and credible testimony presented at trial. The Court committed reversible error by accepting as true and reliable the self-serving, inconsistent and objectively unreasonable testimony of the hospital witnesses, especially that testimony offered by CRNA Jody Simcox. In the face of overwhelming evidence to the contrary, the lower court accepted the defendant s claim that Mr. Toy did not suffer from cardiac arrest, significant oxygen deprivation and hypoxic brain injury during the surgical procedure. The truth is that the credible evidence shows that Mr. Toy did in fact suffer a hypoxic brain injury during surgery, a finding that is crucial to the 4

8 outcome of this case. It is clear that Jody Simcox breached the standard of care applicable to monitoring a patient under anesthesia in a case such as this. By failing to properly monitor and react to the lack of a blood pressure reading and lack of oxygen saturation during surgery, Mr. Simcox failed to recognize the grave danger Mr. Toy faced resulting from his cardiac arrest and significant oxygen deprivation for several minutes. The oxygen deprivation to Mr. Toy s brain during surgery caused the anoxic brain injury from which he indisputably suffered and from which he never recovered. The trial court s acceptance of the Appellee s claims to the contrary cannot be reconciled. I. IT IS UNDISPUTED THAT JODY SIMCOX FAILED TO MEET THE STANDARD OF CARE TO PROPERLY MONITOR MR. TOY S BLOOD PRESSURE DURING SURGERY AND TAKE APPROPRIATE ACTION It is undisputed in this case that for a fifteen minute period of time between 1415 and 1430 almost the entirety of the surgery there is no recorded blood oxygen saturation and no recorded blood pressure readings for Mr. Toy. (P1 Toy/GLH 00339; R.E. 16; T. 130). CRNA George Weathers testified as an employee for the Defendant hospital with personal knowledge of the circumstances in this case. When asked on cross-examination regarding the standard of care applicable to blood pressure readings during surgery, he testified that [o]ur monitor is set up to check a blood pressure every 3 minutes. It s required by standard of care to have a blood pressure reading every 5 minutes. (T. 200 at 5

9 lines 20-28). When asked specifically if the standard of care requires a CRNA to palpate for a pulse when there is no blood pressure reading for a 5 minute period, Mr. Weathers testified, [w]ell, I would say, yes. (T. 204 at lines 19-25). Consistent with his testimony on this point, the record reflects that upon entering Mr. Toy s surgical suite at 1429 and finding no blood pressure reading and no oxygen saturation reading, Mr. Weathers quickly palpated for a pulse and, finding none, immediately instituted chest compressions and ACLS protocols. Specifically, Mr. Weathers was asked about this, and the following colloquy ensued: Q. I m trying to understand the objective factors that you viewed that led you to think we need to check this guy s pulse? A. Just based on prior experience. Q. But prior experience is not we need objective factors here. A. Just there was not a reading. Q. Not a blood pressure reading? A. There s not a blood pressure reading. Q. Not a blood oxygen saturation reading? A. Right. Q. And what else? A. Patient still had a normal looking EKG tracing. So I just took it upon myself to feel for a pulse. You know, you don t want to wait on a blood pressure cuff to cycle numerous times. 6

10 Q. But you saw there being no blood pressure reading, you saw there being no blood oxygen saturation and you thought I need to check his pulse to make sure everything is okay here, right? A. That would be safe to say, yes. Q. Yet for approximately 15 minutes time you got no blood oxygen saturation here, showing no record of it, you got 15 minutes of no blood pressure monitor of being reported here either, yet Mr. Simcox did not do what you did for that entire 15 minute period of time. You came in there in less than a minute, you were palpating for a pulse, didn t find one and immediately instituted chest compressions, is that right? A. Well, that s correct, but I think it s easy to be critical of the record. (T , R.E ). The importance of this testimony is that it establishes that Simcox failed to meet the standard of care when presented with a lack of blood pressure readings and significant period of time with no blood oxygen saturation reading during Mr. Toy s surgery. He was required to monitor the patient s blood pressure readings and other vital signs and take appropriate action when problems arose. He failed to meet his duty of care. By contrast, Mr. Weathers did meet the standard of care when he came in the room and realized the problems sadly it was too late. When questioned whether Mr. Simcox should have been concerned that there had been a significant event (cardiac arrest) after not getting a blood pressure reading, Mr. Weathers stated, [w]ell I personally was not in the room when the problems were there. All I know is I came into the room and palpated for a pulse and it was absent. (T

11 at lines 2-8). He testified further that upon finding no pulse, the protocols required the administration of chest compressions to circulate blood in the patient s system. (T. 205 at lines 8-14). Unfortunately for Mr. Toy and his family, Mr. Simcox failed to follow the standard of care applicable under these circumstances. It is undisputed that he did not palpate for a pulse during the 15 minute time period where there were no blood pressure readings and during which time period there was at least a five minute period of time where there was no blood oxygen saturation reading. He was clearly required to do so and did not. The fact that Mr. Toy was ultimately determined to have suffered from a severe anoxic brain injury is consistent with the evidence in this case and Plaintiff s experts opinions that Mr. Toy suffered a prolonged period of time with insufficient or no blood pressure and lack of blood oxygen saturation during surgery. On the other hand, the Appellee s argument (erroneously accepted by the trial court) that Mr. Toy s blood pressure and oxygen saturation problems were caught in time and ACLS protocols were timely instituted at the end of the surgery before Mr. Toy suffered a severe brain injury is completely inconsistent with the outcome in this case. Mr. Toy never recovered after surgery and never again spoke or communicated in any way with his family or anyone else. 8

12 Importantly, the Appellee s own expert, Dr. Brunson, echoed the testimony of Mr. Weathers on the standard of care issues. Dr. Brunson testified that Mr. Simcox was responsible for monitoring the patient s response to anesthesia and problems arising during surgery. Dr. Brunson testified as follows on crossexamination: Q. Did you hear Mr. Weathers testify that the standard of care required him to palpate for a pulse if he had no blood pressure reading and no oxygen saturation reading for a period of 5 minutes? A. Yes. Q. You heard that? A. Yes. Q. And you also would agree with me that there was no evidence presented by Mr. Simcox in this case that he palpated a pulse between the times of 1415 and 1430 because that wasn t done until Mr. Weathers came in the room, correct? A. I guess that s the testimony. T. 307, lines 21-29; T. 308, lines 1-9 Q. Well, we know that Mr. Toy was resuscitated after the chest compressions began, right? A. Correct. Q. And what s the purpose of the chest compressions? A. To circulate the blood. Q. And by circulating the blood you circulate oxygen to the brain? 9

13 A. You do. Q. And before that period of time we know that no chest compressions were begun because we know it s undisputed in this case that chest compressions were not begun until about 1431 according to the code chart, correct? A. Correct, T. 309, lines 22-29; T. 310, lines 1-7 Q. Now, it s incumbent on the CRNA to determine that there is sufficient circulation of blood flow, right? A. Yes. Q. And we agree on that. We agree that in addition to the fentanyl and Versed that there was 100 milligrams of propofol administered to Mr. Toy, correct? A. In total. Q. We agree that there was a precipitous drop in blood pressure to 80/35 at the hour of 1415, correct? A. Yes. Q. We agree that there s no blood pressure recorded in this case between the time of 1415 to 1430, correct? A. Correct. Q. We agree that there were no chest compressions commenced for the purpose of helping him pump the blood through his system until 1431 as it said on the code sheet, correct? Isn t that correct? A. I agree that those are the times on the code sheet. 10

14 Q. We agree that there was no effort to palpate a pulse until the time that Mr. Weathers came in and said you ve got no blood pressure reading, and they did it at that time, correct, about 1430, 1431? A. Correct. Q. We agree that however it might be explained that during the time period, the significant time period in question that happens to coincide with the blood pressure, lack of a blood pressure reading, we got no oxygen saturation on the anesthesia report, right? A. That s correct. Q. We know that Mr. Toy suffered a cardiac or cardiopulmonary arrest, don t we? A. He suffered a cardic arrest, yes. Q. That s right. And we also know that he suffered a hypoxic brain injury so severe that he never recovered from it after his surgical procedure, isn t that right? A. He ultimately, yes, was diagnosed with it. Q. Pardon? A. He was ultimately diagnosed with a hypoxic brain injury. (T. 311, lines 9-29; T. 312, lines 1-29) It is submitted that Mr. Simcox breached the standard of care applicable under the circumstances in this case and the trial Court s findings to the contrary are unsupported by substantial evidence and clearly erroneous. 11

15 II. IT IS UNDISPUTED THAT MR. TOY SUFFERED FROM A BRAIN INJURY FROM WHICH HE NEVER RECOVERED AND THE COURT S CONCLUSION THAT THE CARDIAC ARREST AND BRAIN INJURY DID NOT OCCUR DURING THE SUBJECT SURGERY IS INCONSISTENT WITH THE RECORD EVIDENCE AND CLEARLY ERRONEOUS. It is undisputed in this case that Mr. Toy was ultimately diagnosed as having suffered from a life threatening brain injury. The Defendant/Appellee Hospital attempted to establish at trial that the brain injury did not occur during the course of the surgery in question. The Defendant/Appellee s theory in this respect is completely belied by the credible and undisputed testimony and medical record evidence. The Appellee Hospital attempted to establish that the brain injury from which Mr. Toy never recovered was actually caused not during the surgery in question, but some days later during a re-intubation procedure. All reasonable and objective evidence points to the inescapable conclusion that Mr. Toy suffered the brain injury during the surgical procedure, not sometime later. It is undisputed Mr. Toy was never responsive again following the September 17, 2008 surgery. He was totally unresponsive from the time of the surgery until the date of his death 18 days later on October 5, (Please see for example, T. 18; P1 Toy/GLH at 00005, 19, 23, 29, 32, 35). Further, the hospital performed an electroencephalogram (EEG) to determine brain activity on September 18, 2008, just one day after surgery. The study was abnormal and 12

16 reflected zero alpha waves. (R. Toy/GLH and This is a reactive but abnormal EEG. Slow background predominantly theta waves. No alpha was seen in this recording. ) (emphasis added) The study was performed the day after surgery because, according to the medical record, Mr. Toy had suffered a cardiac arrest, was unresponsive and was thought to have anoxic encephalopathy. R. Toy/GLH Dr. Pande reviewed the September 18 study on or about September 22, 2008 (electronically signed on September 23, 2008) and concluded that the EEG was consistent with encephalopathy. (R. Toy/GLH-00018) Thus, the objective medical record presented in evidence in this case confirms what the hospital suspected that Mr. Toy suffered a brain injury during the September 17, 2008 procedure. Certainly the surgical anesthesia record Simcox completed (taken on its face and without his self-serving testimony) is consistent with the patient having suffered the clinical outcome diagnosed post-surgery i.e. that Mr. Toy suffered from a severe brain injury that ultimately caused his death. There are no events between the September 17 surgery and the September 18 EEG that would explain the outcome it is respectfully submitted that the only reasonable, factually accurate and objective conclusion that can be reached is that Mr. Toy suffered cardiac arrest and significant oxygen deprivation during the 15 minutes Simcox got no blood pressure reading during Mr. Toy s surgery. When Mr. Weathers came in 13

17 the room at 1429, noticed the lack of blood pressure and blood oxygen readings and began chest compressions in an effort to circulate blood through Mr. Toy s system it was too late. Mr. Toy had already suffered oxygen deprivation for long enough to cause the anoxic brain injury. GLH s own expert physician had to acknowledge that Mr. Toy s ultimate brain injury was consistent with the evidence of being deprived of oxygen for a significant period of time as reflected in the anesthesia record and objective facts in the medical record. Dr. Brunson stated as follows: Q. Now, the anoxic brain injury what is hypoxia? A. Hypoxia is low oxygen concentration in the blood. Q. And so an anoxic brain injury is one where the brain has been deprived of oxygen for a significant period of time to cause brain damage? A. That s correct. Q. And the more time goes by while someone is not getting oxygen to their brain the more severe that brain injury is, do you agree with that? A. Correct. Q. And if somebody has suffered a severe enough brain injury from which they never recovered then that means that there was a period of time that individual was not getting sufficient oxygen to his brain, right? A. That s Correct. Q. And that type of brain injury takes longer than say 30 seconds or 45 seconds to occur, doesn t it? A. I would say so. 14

18 Q. In fact, it takes several minutes before you begin to have damage to the cells of your brain and begin suffering brain damage, isn t that right? A. Yes. T. 304, lines 15-29; T. 305, lines 1-9 Q. And if you are not getting circulation through your blood system, then you re not getting the needed delivery of oxygen to your brain, correct? A. Correct. T. 306, lines 2-5 Dr. Brunson further testified on cross-examination as follows: Q. And doctor, we agree and you ve seen the records that I put up earlier demonstrating that the physician making rounds got no response whatsoever from Mr. Toy 48 hours after being off of sedation? A. I saw that record. Q. And no response would be consistent with Mr. Toy having suffered a brain injury, will you agree with that? A. Yes. Q. This is a document, Bates No. 58. What is decorticate posturing there? A. It s basically reflexes. Q. And if somebody is only having decorticate posturing, that s consistent with someone having suffered an anoxic brain injury, right? A. Yes. T. 314, lines

19 Q. So the evidence of nonresponsiveness and the decorticate posturing which are consistent with the brain injury, those were going on before the reintubation event that you ve referenced, do we agree on that? A. We agree on that, yes. T. 315, lines 1-5 Q. Okay. Well, let me ask you this, Dr. Brunson: Did you review anywhere where Mr. Simcox put in writing in this chart that there was purposeful movement? A. No. Q. And what about this issue of Mr. Toy allegedly flopping around on the table there, did you see where Mr. Simcox wrote down that important event in his notes? A. I mean, no. T. 316, lines Q. Now, I ask you to look at this record which is on September 21 st at 11 a.m. On September 20 th I m not sure I can tell. Do you see that there s a progress note indicating Mr. Toy is not responding to painful stimuli? A. Yes. Q. Is that consistent with brain injury? A. It could be. Q. It is consistent with an anoxic brain injury, isn t it? A. Yes. It s consistent with a number of things. T. 317, lines 17-29; T. 318, lines

20 Mr. Toy was never responsive again after the subject surgery, his EEG test the day after surgery was abnormal, his clinical condition of non-responsiveness and ultimate diagnosis of having suffered a severe brain injury due to oxygen deprivation are all consistent with the medical record and specifically CRNA Simcox s anesthesia record and proof that Simcox failed to meet the standard of care established in this case regarding appropriate care and treatment required when there are no blood pressure readings. The defendant s speculation (accepted by the court) that some other event could explain the tragic outcome in this case is just that unsupported speculation. The trial court s findings that Mr. Toy did not suffer a brain injury due to cardiac arrest and oxygen deprivation to his brain during surgery is clearly erroneous and must be reversed. Additionally, Yolanda Toy was asked whether she was ever able to communicate with her husband after she escorted him to surgery: Q. What did you observe about Mr. Toy over the next 18 days prior to his death? A. I noticed that well, when I did when I got into the unit they had him on a ventilator, a respirator or whatever it s called, and he was just his eyes would open and close but no movement. No movement at all. And that wasn t him, and it was like he just couldn t pull out of whatever was happening. He couldn t pull out of it. Q. Were you ever able to talk to [y]our husband again? A. No. I could talk to him but he couldn t hear me. Q. He wasn t he never spoke to you again[?] 17

21 A. No, he never spoke to me again. (T. 3:18, R.E. 046). Similarly, Mr. Toy s daughter named Plaintiff in the case, Tabitha Prayer, testified at trial that she [saw] no response from her father during his 18 days at the hospital, and moreover, that after the surgery, she never spoke with her father again. (T ). Finally, Dr. Brunson GLH s expert -- testified as follows: Q. And if someone suffers a heart attack during an operation or otherwise and they have a period of time where they re not having sufficient circulation through their system and sufficient oxygen being circulated through their system until such time as they re revived, if enough minutes go by then they can well suffer an anoxic brain injury, right? A. They can. T. 317, lines 17-29; T. 318, lines 1-7 Q. Did Mr. Toy suffer from a brain injury that ultimately killed him? A. He suffered from a brain injury, yes. T. 320, lines It is submitted that the only reasonable conclusion based on the record evidence in this case is that Mr. Toy s cardiac arrest and brain injury occurred during the subject procedure, not afterwards as erroneously argued by GLH and accepted by the trial court. Other than Mr. Simcox s wholly unsupported, self-serving testimony of critical matters he claimed to remember at trial but did not record in his chart, Mr. 18

22 Toy never made a purposeful movement after being given anesthesia on September 17, The record establishes that Mr. Toy suffered cardiac arrest and a severe brain injury during the surgery. There is no other reasonable explanation and the trial court s findings that Mr. Simcox did not breach the standard of care and that no evidence supports a finding that Mr. Toy suffered the brain injury during the subject procedure are clearly erroneous and constitute reversible error. CONCLUSION For the reasons set forth herein and those contained in Appellant s principal brief, record excerpts and the record in this case, it is respectfully submitted that the trial Court s findings and conclusions are not supported by substantial evidence and are manifestly erroneous. For these reasons the trial Court s ruling must be reversed on appeal. Respectfully submitted, this the 15 th day of September, TABITHA PRAYER, FOR AND ON BEHALF OF THE ESTATE AND WRONGFUL DEATH BENEFICIARIES OF JONES TOY, DECEASED APPELLANTS By: /s/ John F. Hawkins John F. Hawkins 19

23 OF COUNSEL: John F. Hawkins, Esquire (MS Bar #9556) HAWKINS GIBSON, PLLC 628 N. State Street (39202) Post Office Box Jackson, MS Telephone: (601) Facsimile: (601) W. Andrew Neely, Esquire (MSB#102168) W. Eric Stracener, Esquire (MSB# 10429) STRACENER & NEELY, PLLC 304 North Congress Street Post Office Box Jackson, Mississippi Telephone: (601) Facsimile: (601) CERTIFICATE OF SERVICE I, John F. Hawkins, do hereby certify that I have on this date served a true and correct copy of the above and foregoing via Mississippi Electronic Court Filing on the following: Honorable Muriel B. Ellis Mississippi Supreme Court Clerk Post Office Box 117 Jackson, MS Gaye Nell Currie, Esquire Wise, Carter, Child & Caraway P. O. Box 651 Jackson, MS

24 Honorable Ashley Hines Leflore County Circuit Court Judge Post Office Box 1315 Greenville, MS This the 14 th day of September, /s/ John F. Hawkins John F. Hawkins 21