State Court of Fulton County

State of Georgia

TIMOTHY JENKINS,

Plaintiff,

— versus —

MAX R. STEUER, MD

CARTER COOPER, PA

POLARIS SPINE AND NEUROSURGERY CENTER, P.C.

MARK M. HUGHES, MD

NORTHSIDE HOSPITAL, INC.

NORTHSIDE EMERGENCY ASSOCIATES, P.C.

CATHERINE C. MEREDITH, MD

NORTHSIDE ANESTHESIOLOGY CONSULTANTS, LLC

RICHARD J. AMERSON, MD

NORTHSIDE RADIOLOGY ASSOCIATES, P.C., and

JOHN/JANE DOE(S) 1-3,

                        Defendants.

Civil Action

File No. 18-EV-4408

Hon. SUSAN EDLEIN

Plaintiffs’ Statement of Facts in Opposition to Summary Judgment

— and —

Omnibus Response to Defense Statements of Purportedly Undisputed Facts

PLAINTIFF’S STATEMENT OF FACTS

1.             On December 5, 2016, Tim Jenkins saw neurosurgeon Max Steuer and his Physician Assistant Carter Cooper. Dr. Steuer recommended neck surgery to remove the central back part of Tim’s cervical vertebrae and to fix the vertebrae in place with rods and screws — that is, a cervical laminectomy and fusion. The surgery was to cover most of Tim’s neck, from the second highest cervical vertebrae, C2, to the second vertebrae in Tim’s upper back, T2.

·      See Statements of Undisputed Facts by Defendants Cooper (¶¶ 1-4), Meredith (¶¶ 1-4), Northside Hospital (¶¶ 1-4).

2.             The surgery was set for December 12 — a week later. In the meantime, Dr. Steuer and PA Cooper ordered pre-surgery laboratory analysis, including a Prothrombin Test that could indicate a blood-clotting problem.

·      See Statements of Undisputed Facts by Defendants Cooper (¶¶ 1-4), Meredith (¶¶ 1-4), Northside Hospital (¶¶ 1-4).

3.             The operation on Tim’s neck on December 12 went well.

4.             Before the surgery, however, Tim’s pre-screening labs had indicated a potential coagulopathy: A “prothrombin time” (PT) test showed that Tim’s blood was abnormally slow in forming clots.

·      See Statements of Undisputed Facts by Defendants Cooper (¶¶ 1-4), Meredith (¶¶ 1-4), Northside Hospital (¶¶ 1-4).

5.             An abnormal PT can represent a problem forming blood clots.

·      See Reddy Depo, page 34

6.             Slow blood-clotting puts you at risk of various problems — including a surgical-site hematoma.

·      See Reddy Depo, pages 36-37. Note that Dr. Reddy is not a retained expert, but was one of Tim Jenkins’ treating physicians, and is a hematologist.

7.             A hematoma is a collection of blood and blood-related fluids that can build up at the site of a surgery. (“Hema” = blood; “oma” = mass or tumor.) Sometimes the hematoma is small and does not pose a risk. But if the hematoma grows large near a crucial body part, the hematoma can cause catastrophic injury. For example, a large hematoma in the front of the neck may compress the windpipe — suffocating the patient and causing brain damage or death.

·      See Steuer Depo, pages 73-74

8.             A hematoma in the back of the neck, where the spinal cord has been exposed by surgical removal of the posterior vertebrae — that hematoma can compress the spinal cord and nerve roots. Initially, the pressure can cause excruciating pain.

·      See Steuer Depo, pages 141

9.             If the pressure continues, it can damage and destroy nerve fibers within the spinal cord — causing a wide array of permanent harms.

·      See Steuer Dep, pages 26-27

10.          A hemorrhagic stroke is one of two major types of strokes. Some strokes involve blood clots in the brain’s blood vessels. These are “ischemic” strokes. (“Ischemia” = blocking of flow.) Other strokes involve vessels that rupture and bleed into the brain. These are “hemorrhagic” strokes. (“Hemorrhage” = escape of blood). Both types of strokes can cause various types and degrees of brain damage.

11.          If any of Tim’s medical providers had investigated the prolonged PT, investigation likely would have confirmed that Tim had a coagulopathy — a problem with his blood clotting too slowly.

·      See Goodnough Depo, pages 43-44

·      Page 75

·      See Dershwitz Depo, pages 77-78

·      Pages 63-64

12.          Tim’s abnormally long Prothrombin Time should not have been a big problem. It could easily have been addressed in time for surgery.

·      See Goodnough Depo, page 75

13.          The standard of care required each of the providers involved in the pre-surgery screening to address Tim’s abnormal PT according to their various roles, as described below.

14.          On December 5, a week before the surgery, Polaris Spine — the office of Dr. Steuer and PA Cooper — received a fax from the Northside Hospital laboratory, alerting them to Tim’s abnormal PT. However, there is no copy of those lab results in the practice group’s own records. Furthermore, neither the surgeon nor his Physician Assistant, Defendant Cooper, remember seeing that lab result.

·      See NSH 1490

·      See Steuer Depo, pages 78-80

*     *     *

·      See Cooper Depo, page 112

15.          As to PA Cooper, the standard of care required him to review the abnormal PT result and to address it — either by ordering a hematology consult or otherwise taking steps to effectively identify and remedy any coagulopathy before the surgery planned for a week later.

·      See Koebbe supplemental affidavit.[1]

16.          Physician Assistants act as “physician extenders,” in part to handle routine matters like addressing abnormal coagulation lab results on their own initiative. Absent contrary instructions from Dr. Steuer or his practice group — for which no evidence exists — the standard of care required PA Cooper to address the abnormal PT results independently, on his own initiative.

·      See Koebbe supplemental affidavit.

·      See Cooper Depo, page 53-54

17.          As to the pre-operative nurse from Northside Hospital, the standard of care required her to review the lab results before surgery and to flag the abnormal PT to make sure the anesthesiologist and/or the surgeon knew about it.

·      See Bell Depo, pages 81-82

18.          As to the anesthesiologist, Dr. Meredith, the standard of care required her to pay attention to the abnormal PT result, then to take steps sufficient to confirm or rule out the presence of a blood-clotting deficiency. If a deficiency were confirmed then Dr. Meredith was required to tell the surgeon that the patient may have a blood-clotting deficiency and consult with the surgeon to come to a joint decision about how to proceed. It is not enough for Dr. Meredith to make sure the surgeon knew about the abnormal PT result. A surgeon may or may not understand the implications of an abnormal lab result. Dr. Meredith was required to make sure the surgeon knew specifically that Tim likely had a blood-clotting deficiency, and to consult on how to proceed based on that information.

·      See Dershwitz Depo, pages 59-65

*     *     *

*     *     *

*     *     *

·      Page 72

·      Pages 48-49

*     *     *

·      See Meredith Depo, page 54

19.          It is possible that a surgeon might see an abnormal PT and not appreciate its significance. But it is highly unlikely a surgeon would ignore a direct warning from an anesthesiologist that the patient may have a blood-clotting problem, and proceed with an elective surgery without taking steps to remedy the coagulopathy. Doing so would pose a significant risk to the patient for no offsetting benefit — which in turn would create professional and financial risk for the surgeon.

·      See Koebbe supplemental affidavit.

20.          In any case, if the surgeon had been made aware of Tim’s abnormal PT — by PA Cooper, by the pre-op nurse, or by Dr. Meredith — the standard of care would have required the surgeon to take steps to effectively confirm or rule out a coagulopathy and, if confirmed, to remedy it before proceeding with an elective surgery.

·      See Koebbe supplemental affidavit

21.          However, none of the physicians or nurses involved in Tim’s neck surgery addressed Tim’s abnormal PT.

22.          PA Cooper took no action to confirm or rule out a clotting deficiency and, if confirmed, to remedy it before the surgery.

·      See Cooper Depo, page 116

23.          No evidence — documentary or testimonial — exists indicating that the pre-op nurse brought the abnormal PT result to the attention of either the anesthesiologist or the surgeon.

·      See Bell Depo, pages 87-88

·      Page 118

24.          Dr. Meredith did not repeat the PT test to confirm or rule out a coagulopathy. Nor did she inform the surgeon that Tim might have a blood-clotting deficiency and consult to make a joint decision about whether to proceed.

·      See Meredith Depo, page 129

·      Page 131

25.          The surgery on Tim’s neck proceeded with no action to remedy his coagulopathy.

·      See above.

26.          Eight days after the neck surgery, on December 20th, Tim went to the surgeon’s office for a follow up visit. At that point, Tim had what appeared to be normal, post-operative swelling over the surgical site, and the surgeon’s staff took an X-ray showing the swelling. Tim’s pain level was within the normal range.

·      See Steuer Depo, pages 110

·      Page 114

·      Page 121

27.          Later that day, however, Tim suddenly experienced extreme, excruciating pain in his neck. Tim’s family called 911, and an ambulance took Tim to the Emergency Room at Northside Hospital.

·      See Jenkins Depo, pages 45-47

28.          Tim arrived in the ER at 1928 hrs (7:28 PM) and was triaged at 1943 hrs.

·      NSH 795

29.          At 2008 hrs (8:08 PM), the ER doctor who examined Tim — Defendant Dr. Hughes — put “hematoma” on his differential diagnosis, that is, his list of reasonably likely causes of Tim’s symptoms.

·      See NSH 799. Note: “MHUG” refers to Dr. Mark Hughes as the author of the accompanying text.

30.          A large hematoma over the exposed spinal cord is dangerous. Compression of the spinal cord can damage the nerve fibers in the cord — the nerve fibers by which the brain connects to the rest of your body. If spinal cord compression grows severe enough, and lasts long enough, it can cause permanent neurological injuries.

·      See Steuer Depo, page 26

31.          Dr. Hughes saw the huge swelling on the back of Tim’s neck at the area of the surgery (and Tim’s exposed spinal cord) and noted that this area was “exquisitely tender.” The ER physician placed hematoma on his differential diagnosis, and he called the spine surgeon who performed the surgery. The surgeon told the ER physician not to bother getting a CT scan or other imaging of Tim’s neck.

·      See NSH 799

[screenshot above]

32.          The ER physician ordered a CT scan nonetheless. The CT was performed at approximately 2100 hrs (9 PM) and was interpreted by radiologist Dr. Richard Amerson no later than 2141 hrs.

·      See NSH 974-76

33.          The CT images confirmed a massive hematoma over the spinal cord in the back of Tim’s neck. The surgeon and his PA both would later testify that it was the biggest hematoma they had ever seen.

·      See Steuer Depo, page 36

·      Cooper Depo, page 76

·      See CT images

·      See CT report, NSH 974-76

34.          With CT images like this, the radiologist must call the physician who ordered the CT, to directly, immediately notify that physician of the potentially life threatening condition requiring urgent attention.

·      See Mancuso Depo, page 29

·      Pages 90-91

35.          Indeed, the surgeon would later testify that if he had been told about the CT findings, the surgeon would have rushed to the hospital as fast as he could, to take Tim to the operating room to evacuate the hematoma.

·      See Steuer Depo, page 193

36.          The surgeon would also testify that he was “frustrated” that he was not informed of the CT results.

·      See Steuer Depo, page 186

37.          But the CT images of Tim’s neck prompted no such response. The radiologist wrote a report that got filed in the medical records. But the radiologist did not call the ER physician who ordered the CT.

·      See Amerson Depo, page153

38.          The standard of care required Dr. Hughes to follow up on the CT, to find out what it showed. But neither Dr. Hughes, the ER physician, nor anyone else in the Emergency Department read the CT report.

·      See Borg Depo, page 57

·      See the audit trail attached as exhibit D-1 to Defendant Amerson’s summary judgment motion

39.          When Dr. Hughes wrote his Final Diagnosis in the Emergency Record at 2202 hrs (10:02 PM), his Final Diagnosis omitted any mention of a possible hematoma. (Dr. Hughes also omitted any mention of a possible pseudomeningocele — which would become important in his later explanations of his actions.) Instead, Dr. Hughes assumed Tim was merely suffering a muscle spasm.

·      NSH 799-800

40.          Similarly, when Dr. Hughes requested that Tim be admitted from the ER to the Neuro Intermediate unit, Dr. Hughes omitted any mention of a hematoma (or a pseudomeningocele). Again, Dr. Hughes assumed Tim was merely suffering a muscle spasm.

·      NSH 800

41.          Since neither Dr. Hughes nor anyone else in the ER looked at the CT report, of course Dr. Hughes did not call the surgeon to inform him that the CT had confirmed the presence of a huge fluid collection over Tim’s exposed spinal cord.

·      See Steuer Depo, page 188-89

42.          Dr. Hughes regarded himself as having no responsibility for Tim after writing the Admission Request at 2202 hrs.

·      See Hughes Statement of Undisputed Material Facts, ¶¶ 9-10

43.          However, Tim did not physically leave the ER for another hour — meaning he was without a physician taking responsibility for his care for an hour.

·      See NSH 800

44.          Furthermore, the information Dr. Hughes provided to the medical staff in the Neuro Intermediate Unit — by the Admission Request — was only that Tim had severe upper back pain assumed to be from a muscle spasm. So Tim was left without a responsible physician for an hour, with a massive hematoma over his exposed spinal cord, and no warning given to the downstream medical staff to watch carefully for neurologic deterioration.

·      See NSH 800

[screenshot above]

45.          While Tim was in the Neuro Intermediate unit, a friend of his told the nurses that Tim was losing his ability to move his legs.

·      See Abbate Depo, page 42

46.          That finally prompted action that brought the surgeon to the hospital to evacuate the hematoma. Surgery to evacuate the hematoma did not begin until nearly 1:00 AM.

·      See Steuer Depo, page

·      See Anesthesia Report, NSH 956

47.          The surgeon, Dr. Steuer, also a Defendant, confirms that the hematoma caused Tim to suffer permanent neurological injury.

·      See Steuer Depo, pages 47-48

48.          The surgeon also testifies that if the hematoma had been evacuated as soon as possible after the CT images were interpreted, Tim likely would have had a better outcome.

·      See Steuer Depo, pages 257-58

49.          The surgeon estimated that if he had been notified of the CT results promptly, he could have had Tim under the knife in the operating room by 10:30, to evacuate the hematoma.

·      See Steuer Depo, page 193

50.          Tim was not known to have any numbness, tingling, or weakness until about midnight — about three hours after the CT was performed.

·      See Steuer Depo, page 46

51.          If the hematoma had been evacuated before any observable neurological deficits occurred, those deficits would not have occurred.

·      See Jacobs Depo (hired expert for Defendant Dr. Steuer), page 156

52.          More than likely, if the surgeon Dr. Steuer had been notified of the CT results promptly after the CT was interpreted, the hematoma would have been evacuated in time to spare Tim any major neurological deficits.

·      See above

The story of the Defendants’ neglect of Tim — and the expanding repercussions — does not end here. As the story unfolded, Tim suffered a hemorrhagic stroke that Tim’s treating physician, Dr. Silpa Reddy (not a retained expert) attributes to the coagulopathy that could and should have been identified before the December 12 neck surgery. And Tim went on to suffer severe pressure wounds as a result of being rendered temporarily quadriplegic. Tim underwent multiple surgeries for problems stemming from the coagulopathy and spinal cord compression. And Tim now lives with permanent physical and cognitive deficits.

However, we leave the story here, because the later events are not necessary to recite for purposes of the Defendants’ summary judgment motions.

PLAINTIFF’S RESPONSE TO DEFENSE STATEMENTS OF FACTS

    1.         Plaintiff’s Response to PA Cooper

1.    Mr. Jenkins presented to Polaris Spine and Neurosurgery in September of 2016 due to complaints of neck pain and was seen and evaluated by Dr. Max Steuer and Defendant Cooper. [See Plaintiff’s Complaint, 15].

Plaintiff’s Response: Agreed

2.     Plaintiff returned on December 5, 2016 due to the fact that his condition had not improved and a cervical laminectomy and fusion at C2 to T2 was recommended accordingly. [Id. at 16].

Plaintiff’s Response: Agreed

3.    Plaintiff was scheduled to undergo the cervical laminectomy and fusion at C2 to T2 at Northside Hospital on December 12, 2016. [Id.].

Plaintiff’s Response: Agreed

4.    In preparation for surgery, Mr. Jenkins underwent preoperative bloodwork, including coagulation studies reflecting as PT, PTT, and INR. [See Deposition of Max Steuer, M.D. (“Steuer Depo.”), p. 29. l. 20 – p. 30, l. 5].

Plaintiff’s Response: Agreed

5.    Plaintiff’s PT was slightly elevated at 15.9 (lab reference range is 11-15). [Id., p.58, ll. 1-7].

Plaintiff’s Response: Agree in part, dispute in part.

Tim’s PT was elevated, but the phrase “slightly elevated” is misleading in this context. As the hematologists in this case have testified, a PT is a qualitative test, not a quantitative test. The result is either normal or abnormal. See, e.g., Reddy Depo:

6.    Those results were saved in Mr. Jenkins’s chart at Northside Hospital and also faxed to Dr. Steuer’s office. [Id., pp. 31-32].

Plaintiff’s Response: Agreed

7.    Dr. Steuer does not have an independent memory of reviewing Mr. Jenkins’s labs, but testified repeatedly during his deposition that he believes he was aware that the PT was 15.9 at the time of surgery and proceeded with knowledge of that slightly elevated PT:

Q: Do you believe that you saw the abnormal PT value that was faxed to your office before you operated on Tim?

A: I – I believe I probably did. I don’t have a specific memory of it, but in the normal course of events I would be aware of an abnormal test. Yes sir.

Q: Who would make you aware of it?

A: Often my physician assistant would, but I would anticipate that I knew that PT was slightly [prolonged].

Q: And you reviewed obviously all the records available to you, all of Tim’s records from Polaris. And it’s a true statement that there is no record anywhere that there was any discussion about this abnormal PT prior to Tim’s December 12th surgery; is that true?

A: In the medical record that is true, but again, to the best of my judgment I would have been aware of the elevated PT at the time prior to surgery.

Q: Right. And what I am hearing you say is that understanding your practice patterns and understanding how Polaris operates, the system in place at Polaris is that when there is an abnormal lab result, that is communicated to you in some for or fashion, is that true?

A: Yes sir.

Q: You don’t have any memory of receiving the information of Tim’s abnormal PT prior to his surgery, though, as you told [me]?

A: I do not have a specific memory, but in the normal course of business we would have – I would have been made – you know, informed of the abnormal result…

[Steuer Depo., pp. 77:13-78:22].

Plaintiff’s Response: Agreed that Dr. Steuer said this in his deposition approximately 2-1/2 years after the events (which he could not recall).

8.    Dr. Steuer went on to say that “to the best of [his] understanding [he] would have been aware of that slightly elevated prothrombin” and he is “quite confident that [he] was aware of that slightly elevated prothrombin time prior to surgery”. [Id. at p. 79].

Plaintiff’s Response: Agreed that Dr. Steuer said this in his deposition approximately 2-1/2 years after the events (which he could not recall).

9.    Plaintiff’s neurosurgeon expert Dr. Christopher Koebbe’s sole criticism of Defendant Cooper is for “fail[ure] to recognize that the laboratory study was abnormal, fail[ure] to recognize the potential implication of that laboratory being abnormal” and advocating for further workup.” [See Deposition of Christopher Koebbe, M.D. (“Koebbe Depo.”) p. 59, l. 15 – p. 60, l. 2].

Plaintiff’s Response: Partially agreed

Dr. Koebbe does make those criticisms, but in his affidavit he states that PA Cooper was required to order a hematology consult or otherwise take steps to effectively identify and remedy a coagulopathy — unless Dr. Steuer explicitly told him not to do so. There is no evidence that Dr. Steuer did that. So Dr. Koebbe criticizes PA Cooper for failing to independently address the abnormal PT.

See Dr. Koebbe’s supplemental affidavit.

10. Dr. Koebbe does not have any other standard of care criticisms of Defendant Cooper’s involvement in taking care of Mr. Jenkins. [Id., p. 110, ll. 21-25].

Plaintiff’s Response: Partially agreed as noted above

11. Dr. Koebbe agrees that if Dr. Steuer knew of Mr. Jenkin’s elevated PT value and knowingly took him back to surgery in light of the same, he would not have any standard of care criticisms against Defendant Cooper. [Id., p. 69, l. 19 – p. 72, l. 15].

Plaintiff’s Response: Partially agreed

Dr. Koebbe would not blame PA Cooper for Dr. Steuer’s actions. But Dr. Koebbe testifies that PA Cooper was responsible for his own standard of care violations independent of what Dr. Steuer did.

    2.         Plaintiff’s Response to Dr. Meredith

1.    In December 2016, Mr. Jenkins was seen at Polaris Spine and Neurosurgery by Dr. Steuer for neck pain. [Complaint at 15-16.]

Plaintiff’s Response: Agreed

2.    He was scheduled for a cervical laminectomy procedure to take place at Northside Hospital on December 12, 2016. [Id. at 16.]

Plaintiff’s Response: Agreed

3.    In preparation for surgery, Mr. Jenkins had bloodwork, including coagulation studies reflecting his PT, PTT, and INR. His PT was slightly elevated at 15.9 (normal was 15). [Id. at 17.]

Plaintiff’s Response: Agreed, with the same caveat as above: The term “slightly” is meaningless in this context.

4.    Those results were saved in Mr. Jenkins’s chart at Northside Hospital and also faxed to Dr. Steuer’s office. [Id.; See also Deposition of Max Steuer, M.D. (“Steuer Dep.”) pp. 31-32; 59-60.]

Plaintiff’s Response: Agreed

5.    Dr. Steuer does not have an independent memory of reviewing Mr. Jenkins’s labs, but testified repeatedly during his deposition that he believes he was aware that the PT was 15.9 at the time of surgery and proceeded with knowledge of that slightly elevated PT:

Q: Do you believe that you saw the abnormal PT value that was faxed to your office before you operated on Tim?

A: I – I believe I probably did. I don’t have a specific memory of it, but in the normal course of events I would be aware of an abnormal test. Yes sir.

Q: Who would make you aware of it?

A: Often my physician assistant would, but I would anticipate that I knew that PT was slightly [prolonged].

Q: And you reviewed obviously all the records available to you, all of Tim’s records from Polaris. And it’s a true statement that there is no record anywhere that there was any discussion about this abnormal PT prior to Tim’s December 12th surgery; is that true?

A: In the medical record that is true, but again, to the best of my judgment I would have been aware of the elevated PT at the time prior to surgery.

Q: Right. And what I am hearing you say is that understanding your practice patterns and understanding how Polaris operates, the system in place at Polaris is that when there is an abnormal lab result, that is communicated to you in some for or fashion, is that true?

A: Yes sir.

Q: You don’t have any memory of receiving the information of Tim’s abnormal PT prior to his surgery, though, as you told [me]?

A: I do not have a specific memory, but in the normal course of business we would have – I would have been made – you know, informed of the abnormal result…

[Steuer Depo., pp. 77:13-78:22].

Plaintiff’s Response: Agreed that Dr. Steuer said this, in his deposition 2-1/2 years after the events (which he could not recall).

6.    Dr. Steuer went on to say that “to the best of [his] understanding [he] would have been aware of that slightly elevated prothrombin” and he is “quite confident that [he] was aware of that slightly elevated prothrombin time prior to surgery”. [Id. at p. 79].

Plaintiff’s Response: Agreed that Dr. Steuer said this, in his deposition 2-1/2 years after the events (which he could not recall)

7.    On December 12, 2016, Mr. Jenkins presented to Northside Hospital for surgery. Dr. Meredith was the anesthesiologist assigned to his procedure and Dr. Steuer was the neurosurgeon performing the case. [Id. at 20-21.]

Plaintiff’s Response: Agreed

8.    During the pre-anesthesia evaluation, Dr. Meredith reviewed and signed Mr. Jenkins labs, including the elevated PT. [Meredith Dep, p 126.]

Plaintiff’s Response: Unclear. The evidence does not establish whether Dr. Meredith did or did not review Tim’s elevated PT. The fact that Dr. Meredith did nothing about the abnormal PT cuts against the inference that she saw it. It is possible, however, that she saw it and ignored it.

9.    Dr. Meredith also saw in the chart that the labs had been faxed to Dr. Steuer’s office. [Meredith Dep, p. 131.]

Plaintiff’s Response: Unclear. The evidence does not establish what Dr. Meredith saw. Her after-the-fact, self-serving testimony need not be accepted.

10. Dr. Meredith had a discussion with Mr. Jenkins about his coagulation history, asking about whether he had any past bleeding issues during his day-to-day life or resulting from prior surgeries. He answered in the negative. [Id. at 117-119.]

Plaintiff’s Response: Unclear. The evidence does not establish what Dr. Meredith did. The anesthesia records are silent on this point. Tim has had a stroke and does not remember the pre-anesthesia process. Dr. Meredith’s after-the-fact, self-serving testimony need not be accepted.

11. After her discussion with Mr. Jenkins, Dr. Meredith was not concerned about the slightly elevated PT. [Id. at 131-133.]

Plaintiff’s Response: Partially agreed. If she saw the abnormal PT, it apparently did not concern her, since she ignored it. However, it may be that she didn’t notice it even if she skimmed the lab results. Dr. Meredith made no note of the abnormal PT, to explain why she did not need to address a potential coagulopathy.

12. Dr. Meredith has no recollection of whether she spoke with Dr. Steuer about the abnormal PT but testified that it was unlikely she did so given that she was not concerned about it and she understood that Dr. Steuer already was aware of the information. [Id. at pp. 131-134.]

Plaintiff’s Response: Agreed that Dr. Meredith said this in her testimony 2-1/2 years after the events.

13. Mark Dershwitz, M.D. is the only expert identified by the plaintiff to testify as to the anesthesia standard of care generally and Dr. Meredith’s specific alleged negligence. Dr. Dershwitz generally testified that the standard of care for an anesthesiologist caring for a neurosurgery patient with an elevated PT is to repeat the coagulation study and, if it still reflects an elevated PT, to talk first with the patient about his history of bleeding and then to have a discussion with the surgeon to make sure he is aware of the elevated lab. [Deposition of Mark Dershwitz, M.D. (“Dershwitz Dep.”) at pp. 72-73; 86-86; 101.] If Dr. Meredith had done this, Dr. Dershwitz would not be critical of her – regardless of whether Dr. Steuer cancelled the case or moved forward with the case as planned. Dr. Dershwitz rejected the idea that the standard of care required Dr. Meredith to cancel the case or to call a hematologist to consult on Mr. Jenkins. [Id. at pp. 47; 80-81.]

Plaintiff’s Response: Agreed in part, disputed in part.

Dr. Dershwitz made clear that Dr. Meredith was required specifically to tell Dr. Steuer that Tim might have a blood-clotting problem, and to make a joint decision with the surgeon about what to do. Dr. Dershwitz was clear that Dr. Meredith could not just ask Dr. Steuer if he was aware of the abnormal PT. Rather, Dr. Meredith was required to tell Dr. Steuer that Tim might have a blood-clotting problem. Thus:

Page 48

Page 49

Page 57

Page 72

Pages 73-74

    3.         Plaintiff’s Response to Northside Hospital

1.    Plaintiff Timothy Jenkins presented to co-Defendant Polaris Spine & Neurosurgery Center in September 2016, and was evaluated by Max Steuer, M.D. and Carter Cooper, P.A. for complaints of neck pain. (Compl. ¶ 15.)

Plaintiff’s Response: Agreed

2.    When Plaintiff returned to Polaris on December 5, 2016, and his condition had not improved, Dr. Steuer recommended that he undergo a cervical laminectomy and fusion at C2 to T2, which was scheduled for December 12, 2016. (Id. at ¶ 16.)

Plaintiff’s Response: Agreed

3.    Prior to Plaintiff’s December 12, 2016, surgery, Dr. Steuer ordered pre-operative labs for Plaintiff, which were drawn at Northside Hospital on December 5, 2016. (Id. at ¶ 17.)

Plaintiff’s Response: Agreed

4.    Plaintiff’s lab results, which included a slightly prolonged PT of 15.9 (high normal was listed on the lab report as 15.0), were faxed to Polaris by Northside Hospital that same day. (Id. at ¶ 17; Steuer Dep., p. 60, ll. 2-21; p. 77, l. 13 – p. 79, l. 24.)

Plaintiff’s Response: Agreed that the PT was abnormal and that it was faxed to Polaris. Dispute that the phrase “slightly prolonged” means anything in this context. See, e.g., Reddy Depo:

5.    Plaintiff’s cervical laminectomy and fusion surgery was performed by Dr. Steuer, as scheduled on December 12, 2016. (Compl. ¶ 21.)

Plaintiff’s Response: Agreed

6.    There was no report of any abnormal bleeding during Plaintiff’s December 12, 2016, surgery. (Id.)

Plaintiff’s Response: Agreed

7.    Dr. Steuer’s physician assistant, Carter Cooper, PA, has testified that prior to proceeding with surgery, either he or Dr. Steuer, who is his supervising physician, always review the patient’s pre-operative lab results, and that one or both of them would have been aware of Mr. Jenkins’ abnormal PT result. (Deposition of Carter Cooper, PA, p. 52, l. – p. 53, l. 22; p. 106, l. 11 – p. 108, l. 4, attached as Exhibit “N”.)

Plaintiff’s Response: Agreed that PA Cooper gave this self-serving testimony in this case, but the contemporaneous medical records do not document this claim.

8.    Mr. Cooper testified that generally when these lab results are faxed over by the hospital, they are brought to either he or Dr. Steuer by their surgery scheduler, but they are also always available in the hospital’s electronic medical records system. (Id. at p. 108, l. 6 – p. 109, l. 21.)

Plaintiff’s Response: Agreed that PA Cooper gave this self-serving testimony in this case

9.    Dr. Steuer testified that that he always checks a patient’s preoperative blood work prior to surgery, either through a fax received by the group or through the patient’s electronic medical record at the hosiptal, and stated that he reviews the results of preoperative blood work “without fail”. (Steuer Dep., p. 31, l. 20 – p. 34, l. 4.)

Plaintiff’s Response Agreed that Dr. Steuer gave this self-serving testimony in this case

10. Dr. Steuer testified that even though he does not have a specific memory of reviewing Plaintiff’s blood work prior to surgery, based on his custom and practice, he is “quite confident that [he] was aware of that slightly elevated prothrombin prior to surgery”. (Id. at p. 77, ll. 13-23; 78, l. 5 – p. 79, l. 24.)

Plaintiff’s Response: Agreed that Dr. Steuer gave this self-serving testimony in this case

11. There is no given PT value that would cause Dr. Steuer to cancel a patient’s surgery, but rather he stated that this is a multifactorial judgment call that takes the patient’s history of coagulation problems into account. (Id. at p. 87, l. 8 – p. 88, l. 24.)

Plaintiff’s Response: Agreed that Dr. Steuer gave this self-serving testimony in this case

12. Dr. Steuer testified that since he had previously performed surgery on Plaintiff in August 2014, prior to which his preoperative labs showed a PT of 16.2 (which was actually higher than the PT of 15.9 in this case) without bleeding complications, this would have supported his decision to proceed with the December 12, 2016, surgery. (Id. at p. 81, l. 21 – p. p. 84, l. 14.)

Plaintiff’s Response: Agreed that Dr. Steuer gave this self-serving testimony in this case

13. Catherine Meredith, M.D., the anesthesiologist who evaluated Plaintiff at Northside Hospital prior to his December 12, 2016, surgery, reviewed and signed his pre-operative labs and was also aware of the abnormal PT result. (Compl. ¶ 20; Meredith Dep., p. 126, ll. 1-13.)

Plaintiff’s Response: Unclear. The evidence does not establish whether Dr. Meredith did or did not review Tim’s elevated PT. The fact that Dr. Meredith did nothing about the abnormal PT cuts against the inference that she saw it. It is possible, however, that she saw it and ignored it.

14. After noting Plaintiff’s abnormal prothrombin time, Dr. Meredith testified that she also assessed his INT, PTT, and platelet count and spoke with Plaintiff about his surgical history. (Meredith Dep., p. 127, ll. 9-12.)

Plaintiff’s Response: Agreed that Dr. Meredith gave this self-serving testimony in this case.

15. Given that Plaintiff’s lab results were barely out of the range for normal and he had undergone multiple previous orthopedic surgeries with no bleeding complications, Dr. Meredith believed it was fine to proceed with this surgery. (Id. at p. 129, l. 19 – 130, l. 1.)

Plaintiff’s Response: Agreed that Dr. Meredith gave this self-serving testimony in this case

16. Plaintiff’s anesthesiology expert, Dr. Mark Dershwitz, has testified that he has no reason to dispute the testimony of Dr. Steuer and Dr. Meredith that they were aware of Plaintiff’s lab results prior to surgery, including the abnormal PT result, and has no criticisms of Northside Hospital. (Dershwitz Dep., p. 104, l. 4 – p. 105, p. 8.)

Plaintiff’s Response: Agreed that Dr. Dershwitz said this. He is a retained expert with no personal knowledge of the events, so obviously he has no testimony about the accuracy of self-serving testimony by Dr. Steuer or Dr. Meredith. Agreed also that Dr. Dershwitz was not asked to evaluate the conduct of Northside Hospital and offered no criticisms of Northside.

17. Plaintiff’s pre-operative nursing expert, Marcia Bell, R.N., agreed that her understanding of Dr. Steuer’s deposition testimony was that he would have been aware of the slightly elevated prothrombin time, and she does not have any reason to dispute that. (Deposition of Marcia Bell, RN, Volume 1, p. 102, ll. 4-24, attached as Exhibit “O”.)

Plaintiff’s Response: Agreed that Nurse Bell said this. She is a retained expert with no personal knowledge of the events, so obviously he has no testimony about the accuracy of self-serving testimony by Dr. Steuer.

18. Nurse Bell agreed that Dr. Meredith signed off on these lab results prior to surgery and her deposition testimony reflects that that she was aware of them. (Id. at p. 103, ll. 3-18.)

Plaintiff’s Response: Agreed that Nurse Bell said this. She is a retained expert with no personal knowledge of the events, so obviously he has no testimony about the accuracy of self-serving testimony by Dr. Meredith.

19. Although Nurse Bell believes the pre-operative nurse should have documented that Plaintiff’s physicians were aware of this result, she admitted that she is not going to offer any opinions as to medical causation in this case or any opinions as to whether the nurse’s failure to document this awareness caused any injury to Plaintiff. (Id. at p. 100, ll. 10-22.)

Plaintiff’s Response: Agreed

20. Plaintiff’s hematology expert, Lawrence Goodnough, M.D., testified that the decision as to whether to proceed with surgery is made by the surgeon and the anesthesiologist, and he is critical of Dr. Steuer and Dr. Meredith because he believes they were required by the standard of care to investigate the abnormal PT before proceeding with Plaintiff’s December 12, 2016, surgery. (Goodnaugh Dep., p. 147, ll. 17-20; p. 151, ll. 11-25.)

Plaintiff’s Response: Agreed

21. Dr. Goodnaugh testified that if Dr. Steuer was aware of the PT level of 15.9 and decided to proceed with the surgery anyway, it does not make a difference with regard to causation as to whether the preoperative nurse reported the PT level to him. (Id. at p. 148, l. 16 – p. 149, l. 1.)

Plaintiff’s Response: Agreed that Dr. Goodnough said this — though of course he is not an expert on Georgia law of causation.

22. On December 20, 2016, Plaintiff returned to Polaris for a follow-up visit with Dr. Steuer, during which he reported a two-day history of neck pain when standing and some swelling next to his incision which was tender. (Compl. ¶ 22.)

Plaintiff’s Response: Agreed

23. Dr. Steuer informed Plaintiff that his wound was healing well and instructed him to return the following week for suture removal. (Id.)

Plaintiff’s Response: Agreed

24. However, after that office visit, Plaintiff began experiencing severe pain and was transported to Northside Hospital via ambulance. (Id. at ¶¶ 23-24.)

Plaintiff’s Response: Agreed

25. Plaintiff was triaged by Northside Hospital Emergency Department nurse, Shauna Trainor, RN, at approximately 7:43 p.m. (Compl. ¶ 25; See Northside Hospital Medical Records attached to the Complaint as Exhibit “B”, to the Affidavit of Dr. Borg, NSH-000795.)

Plaintiff’s Response: Agreed

26. A History and Physical was performed at approximately 7:47 p.m. by the Emergency Department physician, Mark Hughes, M.D., in which he documented that Plaintiff was complaining of upper back pain which began at around 5:00 p.m., with associated symptoms of swelling and muscle spasms. (Hughes Dep., p. 135, ll. 3-16; Northside Hospital Medical Records attached to Complaint, p. NSH-000796.)

Plaintiff’s Response: Agreed

27. At the time of his examination, Dr. Hughes performed a neurological evaluation of Plaintiff and did not note any abnormalities with regard to his upper and lower extremities. (Hughes Dep., p. 142, l. 3 – p. 143, l. 8.)

Plaintiff’s Response: Agreed

28. Although this examination was limited due to Plaintiff’s pain, Dr. Hughes was able to conduct a thorough neurological examination, which included a cranial peripheral nerve exam, evaluation of grips and movement, a sensory and motor exam, and evaluation of deep tendon reflexes. (Id. at p. 134, l. 9 – p. 144, l. 18.)

Plaintiff’s Response: Agreed in part. It makes no sense to say the exam was “limited but thorough.”

29. Dr. Hughes consulted with Dr. Steuer regarding Plaintiff at around 7:55 p.m., and noted that Dr. Steuer wanted Plaintiff to be admitted to the neurovascular unit at Northside Hospital with orders for Robaxin and a pain pump using Dilaudid. (Hughes Dep. P. 146, ll. 5-20; Northside Hospital Medical Records attached to Compl., NSH-000799.

Plaintiff’s Response: Agreed

30. Dr. Hughes noted that Dr. Steuer did not want any imaging performed that evening. (Id.)

Plaintiff’s Response: Agreed

31. A CT scan of the neck and chest was ultimately ordered by Dr. Hughes in the Emergency Department, and was performed at 8:47 p.m. (Compl. ¶ 27.)

Plaintiff’s Response: Agreed, except the CT report says the CT was performed at 2100 hours. (NSH 974.)

32. This CT scan was interpreted by radiologist, Richard Amerson, M.D., at 9:41 p.m., and the “Impression” section Dr. Amerson’s report states as follows:

Large, low-density fluid collection with small focal areas of air collection projecting posteriorly over the surgical defect of the cervical spine. Differential would include a postsurgical seroma/hematoma with small areas of organized thrombus, noted in the lower dependent portion of the collection. Less likely, in the absence of contrast enhancement, this may represent abscess formation. Possibility of postsurgical pseudomeningocele cannot be excluded.

If there is concern of compression of the spinal cord, MRI may be considered although there may be significant image artifact due to the metallic fixation rods and screws.

Postsurgical changes of the cervical spine from C2 to T2 level are noted.

(December 20, 2016, Radiology Report, attached to Complaint as Exhibit “C” to Affidavit of Dr. Borg, NSH-000975.)

Plaintiff’s Response: Agreed that the report was finalized at 2141 hrs and contained the text quoted above. However, the finalized report necessarily lagged behind Dr. Amerson’s viewing of the CT images and his interpretation of them.

33. Dr. Amerson did not verbally communicate the results of this CT scan to Dr. Hughes or any other physician. (Compl. ¶ 29.)

Plaintiff’s Response: Agreed

34. Dr. Hughes wrote an admission request for Plaintiff’s transfer from the Emergency Department to 2C NVI (which was the Neuro Intermediate Unit) at approximately 10:02 p.m. (Hughes Dep., p. 183, ll. 7-17.)

Plaintiff’s Response: Agreed that Dr. Hughes’ scribe wrote the request at NSH 800.

35. Dr. Hughes also wrote Emergency Department Inpatient Holding Orders at approximately 10:00 p.m. that evening, which he explained are initial admission orders to get the patient up to the floor, after which the floor nurse would call Dr. Steuer’s service to get formal admission orders. (Hughes Dep., p. 193, ll. 5-21.)

Plaintiff’s Response: Agreed in part. The handwritten Holding Orders bear no computer-generated time stamp, nor do they bear any clear handwritten time. Thus:

36. Based on the fact that Dr. Hughes’ holding orders contain a diagnosis of “upper back pain, hematoma versus pseudomeningocele, status-post recent surgery?”, he testified that he would have been aware of the results of the CT scan before Plaintiff left the Emergency Department. (Id. at p. 189, l. 7 – p. 190, l. 23; p. 245, ll. 6-11.)

Plaintiff’s Response: Agreed that Dr. Hughes gave this testimony in this case.

37. At the time he wrote the 10:00 p.m. admission request and holding orders, Dr. Hughes believes Plaintiff was neurologically intact. (Id. at p. 193, ll. 22-25.)

Plaintiff’s Response: Agreed

38. Dr. Hughes belief that Plaintiff was neurologically intact around 10:00 p.m. is based on both his neurological examination of Plaintiff and the practice of both he and the nursing staff to continue checking on Plaintiff throughout his Emergency Department admission to ensure his condition was not deteriorating. (Id. at 203, ll. 1-24.)

Plaintiff’s Response: Agreed

39. Vital signs taken on Plaintiff during the time he was in the Emergency Department were improving up until his transfer to the floor, and Dr. Hughes testified that Plaintiff was stable throughout his Emergency Department admission. (Hughes Dep., p. 118, l. 13 – p. 120, l. 9.)

Plaintiff’s Response: Agreed

40. Plaintiff has admitted that his memory of the events of December 20, 2016, is incomplete, and he mainly recalls being in excruciating pain. (Plf’s Responses to Dr. Amerson’s First RFAs, No. 4.)

Plaintiff’s Response: Agreed

41. Plaintiff recalls feeling numbness and tingling in his legs at some point that night, but is unable to specifically state when that started. (Id.)

Plaintiff’s Response: Agreed

42. After Plaintiff’s transfer from the Emergency Department, his friend, Jon Abbate, who was with him that evening, called Dr. Steuer’s office a little before midnight and informed him that Plaintiff “was experiencing numbness and tingling in his extremities and that this was new since Tim was in the ER.” (Id. at No. 5.)

Plaintiff’s Response: Agreed

43. Despite the pain he was experiencing, Plaintiff was still able to move his arms and legs in the Emergency Department. (Id. at No. 6.).

Plaintiff’s Response: Agreed

44. It was only after Plaintiff left the Emergency Department that he experienced quadriparesis or quadriplegia, so that he was essentially unable to move his arms and legs. (Id.)

Plaintiff’s Response: Agreed

45. None of Plaintiff’s expert witnesses have offered testimony as to when they believe Plaintiff began experiencing any neurological symptoms as a result of this hematoma, other than the pain he presented with upon admission to the Emergency Department.

Plaintiff’s Response: Agreed

46. The only evidence in this case is that symptoms of numbness, tingling and difficulty moving his arms and legs did not develop until Plaintiff had already been transferred to the floor. (Plf’s Responses to RFAs, Nos. 4-6.)

Plaintiff’s Response: Agreed

47. Although, Plaintiff’s nursing expert, Ms. Cesarini, has testified that the Emergency Department nurses should have performed follow-up neurological evaluations of Plaintiff at the time his vital signs were taken, she stated several times during her deposition that she will not be offering any opinions as to causation in this case, medical or otherwise. (Deposition of Diana Cesarini, R.N., p. 28, ll. 22-25; p. 83, ll. 11-16; p. 86, ll. 21-25attached as Exhibit “P”.)

Plaintiff’s Response: Agreed

48. Plaintiff’s Emergency Department physician expert, Keith Borg, M.D., testified several times during his deposition that he is not offering opinions regarding the Northside Hospital nursing staff’s monitoring of Plaintiff’s neurological status, and further testified that he will not be offering testimony as to a specific time that Plaintiff needed to be taken to surgery. (Deposition of Keith Borg, M.D., p. 47, l. 6 – p. 48, l. 5; 76, ll. 77, l. 8; p. 78, ll. 1-23; 150, ll. 4-7, attached as Exhibit “Q”.)

Plaintiff’s Response: Agreed

49. Plaintiff’s expert neurosurgeon, Dr. Christopher Koebbe, admitted that he is unable to determine whether Plaintiff’s spinal cord was compressed at the time the CT scan was taken in the Emergency Department. (Koebbe Dep., p. 91, l. 2 – p. 92, l. 7.)

Plaintiff’s Response: Agreed

50. Dr. Koebbe testified that he does not have any opinion as to when Mr. Jenkins developed motor weakness or decreased sensation because of the hematoma. (Id. at p. 112, l. 19 – p. 114, l. 4.)

Plaintiff’s Response: Dr. Koebbe testified that the neurological deficits were first noted after midnight.

51. Dr. Koebbe testified that if Dr. Steuer had been made aware of the results of the CT scan by Plaintiff’s physicians, it would have been within the standard of care to perform surgery to evacuate the hematoma up until midnight. (Id. at p. 104, l. 3 – p. 105, l. 7.)

Plaintiff’s Response: No, that’s not what the cited testimony says. The testimony says that surgery to evacuate the hematoma should have been done immediately after the CT results, and depending on the circumstances that might have taken until midnight to achieve. Dr. Koebbe did not say it would be fine to wait until midnight regardless of how soon Tim could be taken to the operating room.

52. Dr. Steuer took Plaintiff to the operating room to prepare for surgery at approximately 12:30 a.m. on December 21, 2016. (Steuer Dep., p. 237, ll. 5-22.)

Plaintiff’s Response: Agreed

53. Plaintiff was transferred to Shepherd Center on December 23, 2016, after his hematoma evacuation surgery. (Compl. ¶ 36.)

Plaintiff’s Response: Agreed

54. Plaintiff was readmitted to Northside Hospital on December 29, 2016, for evaluation and treatment of a subarachnoid hemorrhage. (Id. at ¶ 37.)

Plaintiff’s Response: Agreed

55. The Complaint alleges that Plaintiff developed left hemisphere cerebral infarctions secondary to left middle cerebral vasospasm, and was transferred to Emory University Hospital on January 3, 2017, for further treatment. (Id. at ¶¶ 41-42.)

Plaintiff’s Response: Agreed

Note: The numbering of Northside’s statements of fact repeat the numbers 54 and 55.

54. When Plaintiff arrived at Emory University Hospital on January 3, 2017, his skin integrity was noted to be intact and pressure ulcer prevention was ordered. (Compl. ¶ 43; Climenson Aff. ¶ 9(k).)

Plaintiff’s Response: Agreed

55. It was not until January 7, 2017, that a Stage II pressure ulcer was first documented in the Emory medical records.

Plaintiff’s Response: Agreed

56. At the time he was transferred back to Shepherd Center from Emory on January 25, 2017, Plaintiff was noted to have a Stage IV sacral decubitus ulcer with evidence of tunneling and drainage. (Climenson Aff., ¶9(r).

Plaintiff’s Response: Agreed

57. Plaintiff alleges that he underwent multiple surgical procedures at both Shepherd Center and Piedmont Hospital to close this sacral ulcer. (Compl. ¶ 49.)

Plaintiff’s Response: Agreed

58. Ms. Climenson’s Affidavit states that the development of Plaintiff’s pressure ulcers was caused by the Emory University nursing staff’s failure to rotate him in a timely manner between January 3, 2017 and January 25, 2017. (Climenson Aff. ¶ 9(o)-(p).)

Plaintiff’s Response: Agreed

59. Plaintiff has never amended his Complaint to include any allegations against Northside Hospital with regard to the development of pressure ulcers and has never withdrawn either his standard of care or causation allegations against the Emory University Hospital nursing staff or the Affidavit of Nurse Climenson.

Plaintiff’s Response: Agreed

60. On February 21, 2020, Plaintiff supplemented the expert disclosure of his pre-operative nurse, Marcia Bell, to include allegations that the Northside Hospital nursing staff did not move Plaintiff enough to prevent the development of pressure ulcers and that the Northside Hospital discharge paperwork should have included information that Plaintiff had a pressure ulcer. (Supplemental Disclosure of Marcia Bell, R.N.)

Plaintiff’s Response: Agreed

61. In her deposition on September 8, 2020, Nurse Bell did not testify that any alleged failure to properly turn or rotate Plaintiff at Northside Hospital and/or to properly prepare discharge paperwork was in any way related to the pressure ulcers later documented at Emory that caused the damages alleged in the Complaint.

Plaintiff’s Response: Undisputed (without verification). Plaintiff will not press a claim that a standard-of-care violation by Northside nurses specifically with respect to pressure wounds caused Tim’s pressure wounds. So this point is moot.

Plaintiff will, however, seek recovery for pressure wounds that resulted from the failure to address Tim’s coagulopathy before his neck surgery.

62. In her deposition, Nurse Bell did not testify that a pressure ulcer developed at Northside Hospital, and describes the open area of skin that was noted at Northside Hospital as a “small fissure in the intergluteal cleft”. (Bell Dep., Volume 2, p. 176, ll. 12-24.)

Plaintiff’s Response: Undisputed (without verification). See above.

63. Northside Hospital’s wound care expert, Dr. Joyce Black, has also described this open area as a fissure in the intergluteal cleft that occurred due moisture accumulation, not pressure, and has testified that she does not consider this to be a pressure injury. (Black Dep., p. 66, l. 9 – p. 67, l. 8, p. 71, ll. 1-3; p. 99, ll. 3-15.)

Plaintiff’s Response: Undisputed (without verification). See above.

64. Northside Hospital’s plastic surgery expert, Thomas Carrico, M.D., has also testified that the open areas of skin that are described in the Northside Hospital medical records prior to Plaintiff’s January 3, 2017, discharge are not pressure injures or pressure ulcers. (Carrico Dep., p. 58, l. 3 – p. 59, l. 5.)

Plaintiff’s Response: Undisputed (without verification). See above.

65. Nurse Bell has testified that her criticisms of Northside Hospital involve repositioning the patient and she will not be offering any testimony regarding medical causation regarding Plaintiff’s pressure injuries or the timing of the development of pressure ulcers. (Bell Dep. at p. 194, ll. 16-24; p. 234, ll. 16-22.)

Plaintiff’s Response: Undisputed (without verification). See above.

66. Nurse Bell further testified that she has not reviewed Plaintiff’s medical records from Emory University Hospital is not able to give an opinion as to the status of any pressure ulcers when Plaintiff was admitted to Emory. (Id. at p. 194, l. 25 – p. 195, l. 4.)

Plaintiff’s Response: Undisputed (without verification). See above.

67. Nurse Bell admits that because she has not reviewed the Emory records, she is not even able to determine whether Plaintiff had any pressure wounds when he presented to Emory on January 3, 2017, and cannot offer any testimony that the first skin issue of a Stage II ulcer documented at Emory four days after admission is the same fissure or open area of skin that was documented at Northside Hospital. (Id. at 236, l. 9 – p. 237, l. 3.)

Plaintiff’s Response: Undisputed (without verification). See above.

68. Northside Hospital’s wound care expert, Dr. Black testified that a pressure wound was not documented at Emory until the Stage II pressure injury on January 7, 2017. (Black Dep., p. 68, ll. 7-16.)

Plaintiff’s Response: Undisputed (without verification). See above.

69. Nurse Black testified that since it takes twenty-four hours after the application of pressure to the skin for a Stage II pressure wound to appear, the Stage II pressure wound described on January 7, 2017, started at Emory, and not at Northside Hospital. (Id. at p. 70, ll. 16-25.)

Plaintiff’s Response: Undisputed (without verification). See above.

70. Dr. Black testified that the deep tissue injury that went on to become the Stage IV pressure ulcer and required debridement and flap surgeries was not noted at Emory until January 9, 2017. (Id. at p. 68, ll. 17-25.)

Plaintiff’s Response: Undisputed (without verification). See above.

71. A deep tissue injury takes forty-eight hours from the time pressure is applied to the skin until the skin shows any sign of tissue damage, which would have been January 7, 2017. (Id. at p. 69, ll. 1-6.)

Plaintiff’s Response: Undisputed (without verification). See above.

72. Since Plaintiff was not a patient at Northside Hospital on January 7, 2017, and had not been since January 3, 2017, Dr. Black testified that the pressure that caused this injury had to have occurred at Emory, rather than at Northside Hospital. (Id. at p. 69, ll. 6-12; p. 70, ll. 1-5; p. 86, ll. 15-20; p. 99, l. 16 – p. 100, l. 6.)

Plaintiff’s Response: Undisputed (without verification). See above.

73. Dr. Hughes testified that at the time of Plaintiff’s Emergency Department admission on December 20, 2016, he was he an employee of co-Defendant Northside Emergency Associates, which is now Envision. (Hughes Dep., pp. 18, l. 7 – p.21, l. 15; p.25, l. 25 – p. 26, l. 19.).

Plaintiff’s Response: Agreed

74. Northside Hospital has attached the Affidavit of Cynthia Gist, its Director of Human Resources Operations, which states that Dr. Hughes was not an employee of Northside Hospital at the time of Plaintiff’s December 20, 2016 admission, but rather was an independent contractor with privileges to practice medicine at Northside Hospital. (Gist Aff., ¶ 5.)

Plaintiff’s Response: Agreed

75. Ms. Gist has confirmed that Northside Hospital did not have a contract with Dr. Hughes for the provision of medical services during the time period at issue in Plaintiff’s Complaint. (Id. at ¶ 7.)

Plaintiff’s Response: Agreed

76. At no time prior to December 20, 2016, did Northside Hospital believe it was creating an actual agency or employment relationship with Dr. Hughes. (Gist Aff. ¶ 8.)

Plaintiff’s Response: Undisputed

77. Northside Hospital has never controlled, nor did it have the ability to control the time, manner or method of the provision of medical services by Dr. Hughes to patients at Northside Hospital, including the medical services he provided to Plaintiff on December 20, 2016. (Id. at ¶ 9.)

Plaintiff’s Response: Undisputed

78. Northside Hospital has never directed, inspected or supervised the details of Dr. Hughes’ practice of medicine and does not have the ability to do so. (Id. at ¶ 10.)

Plaintiff’s Response: Undisputed

79. Since Dr. Hughes was not a hospital employee, Northside Hospital did not have the authority to terminate his services without cause or notice. (Gist Aff. ¶ 11.)

Plaintiff’s Response: Undisputed

80. Northside Hospital has never paid a salary or provided benefits to Dr. Hughes and has never withheld, nor is it required to withhold, federal or state income taxes for Dr. Hughes. (Id. at ¶¶ 11-12.)

Plaintiff’s Response: Undisputed

81. Ms. Gist has established that during the time period at issue in this case, Northside Hospital-Atlanta posted conspicuous signs in public areas of the hospital, including in the patient admissions area of the Emergency Department, containing the following statutorily required language:

Some or all of the health care professionals performing services in this hospital are independent contractors and are not hospital agents or employees. Independent contractors are responsible for their own actions and the hospital shall not be liable for the acts or omissions of any such independent contractors.

(Gist Aff. ¶¶ 13-15.)

Plaintiff’s Response: Undisputed

82. Plaintiff’s medical records from the subject admission contain a Consent for Routine Medical Procedures, signed for Plaintiff by Jay Dicicco on December 20, 2016, that includes the following statutorily required language:

Some or all of the health care professionals performing services in this hospital are independent contractors and are not hospital agents or employees. Independent contractors are responsible for their own actions and the hospital shall not be liable for the acts or omissions of any such independent contractors.

(Id. at ¶¶ 17-18.)

Plaintiff’s Response: Agreed

83. It is further undisputed that Plaintiff authorized Mr. Dicicco to sign this form on his behalf as his personal representative on December 20, 2016. (Id. at ¶ 18.)

Plaintiff’s Response: Disputed. The cited affidavit is not competent evidence on the point. There is no evidence that Jay Dicicco had legal authority to act for Tim Jenkins.

    4.         Response to Dr. Amerson

1.    Dr. Amerson's report on Plaintiff's CT scan of his neck and head was finalized at 21:41 military time (9:41 p.m.) on December 20, 2016 and sent to the Hospital Emergency Department via the Hospital's EMR system immediately. (See, PAC audit trial and Horizon audit trail).

Plaintiff’s Response: Agreed, except it’s misleading to suggest the report was “sent” to the Emergency Department. Dr. Amerson uploaded the report into the PAC computer system in the usual and routine manner and never alerted Dr. Hughes of the abnormal and life-threatening results.

2.    Dr. Amerson's report uses the terms "hematoma" and "pseudo meningocele" in his impression section and it is a very good, very professional and accurate report. (Mancuso dep., 42:20-25).

Plaintiff’s Response: Agreed

3.    Dr. Hughes's handwritten holding orders are timed at approximately 10:00 p.m. on December 20, 2016 and order Plaintiff's admission to the neuro-intervention unit at the Hospital. (Emergency Department Holding Orders).

Plaintiff’s Response: Disputed. The Holding Orders bear no computer-generated time stamp, and the handwritten time is unclear.

Further, since the form is handwritten, parts of it may have been written after the stated time.

Finally, parts of the handwritten form are inconsistent with the computer-time-stamped Admission Request written at 2202 hours by Dr. Hughes’ scribe, and attested to by Dr. Hughes as accurate and complete. (NSH 800.)

4.    The Holding Orders entered by Dr. Hughes use the terms "hematoma" and "pseudomeningocele" as his suspected diagnosis. (Id.).

Plaintiff’s Response: Agreed

5.    Dr. Hughes has testified that because he used the term pseudo meningocele in his holding orders, that means that he either personally reviewed Dr. Amerson's report or was made aware of the contents of Dr. Hughes' report before the holding orders were written by him. (Hughes dep., 189:22-191:10).

Plaintiff’s Response: Agreed that Dr. Hughes gave this self-serving, speculative testimony in this case.

6.    The Horizon EMR audit trial produced by the Hospital in discovery documents that nurses, ED staff and Dr. Hughes accessed and reviewed the chart on multiple occasions in the EMR for Plaintiff between 9:41 p.m. and 10:03 p.m. (Horizon audit trial).

Plaintiff’s Response: No. The audit trail establishes that no one in the ER accessed the CT report. ER staff accessed their own ER records, but not the CT report. See Exhibit D-1 to Amerson motion (the audit trail).

7.    Plaintiff did not exhibit neurological compromise until 11:56 p.m. on December 20, 2016 or approximately two hours after Dr. Amerson's report was finalized and Dr. Hughes' holding orders were entered. (See, Abbate dep., 111:4-25; Mancuso dep., 86:7-13).

Plaintiff’s Response: Agreed

8.    Dr. Hughes understood and appreciated the contents of Dr. Amerson's report. (See, Hughes dep., 189:22-191:10).

Plaintiff’s Response: Denied. See the Admission Request written at 2202 hours by Dr. Hughes’ scribe and attested to by Dr. Hughes as accurate and complete. (NSH 800.)

9.    No physician has testified that any delay by Dr. Amerson proximately caused Plaintiff's paralysis or proximately led to his stroke. (Mancuso dep., 92:25- 93:9; Koebbe dep., 112:19-113:10); Steuer dep., 266:3-23; Goodnough dep., 149:14-17).

Plaintiff’s Response: Denied in material part. Dr. Steuer testifies that if he had been notified of the CT results, he would have come in immediately to evacuate the hematoma, and that this would have led to a better outcome for Tim.

    5.         Response to Dr. Hughes

1.    Plaintiff underwent a cervical fusion procedure with Defendant Steuer on December 12, 2016. (See Complaint, ¶16-17).

Plaintiff’s Response: Agreed

2.    Plaintiff presented to the Northside Hospital Emergency Department on December 20, 2016, in pain, with swelling near the surgical site, with no neurologic abnormalities. (Id. at ¶25-26).

Plaintiff’s Response: Agreed

3.    Plaintiff had seen and been examined by Dr. Steuer just a few hours prior. (Id.)

Plaintiff’s Response: Agreed

4.    Dr. Steuer was contacted and made aware that his patient was in the emergency department.

Plaintiff’s Response: Agreed

5.    Dr. Steuer gave a verbal order for Plaintiff to be given pain medication to be made comfortable and admitted to the neuro-interventional unit (See Complaint, Exhibit 3, B, p. NSH 000799).

Plaintiff’s Response: Agreed

6.    While in the emergency department, Plaintiff was examined by Dr. Mark Hughes.

Plaintiff’s Response: Agreed

7.    A CT scan of the cervical spine was ordered and completed by 9:41 p.m.

Plaintiff’s Response: Agreed

8.    The CT report generated by Defendant Amerson noted:

Large, low-density fluid collection with small focal areas of air collection projecting posteriorly over the surgical defect of the cervical spine. Differential would include a post-surgical seroma/hematoma with small areas of organized thrombus noted in the lower dependent portion of the collection. Less likely in the absence of contrast enhancement, this may represent abscess formation. Possibility of postsurgical pseudomeningocele cannot be excluded.

(Id. at p. NSH 000974).

Plaintiff’s Response: Agreed

9.    As Dr. Steuer had not yet placed written orders for Plaintiff’s admission, Dr. Hughes signed a “holding order” at approximately 10:00 p.m., allowing Plaintiff to be transferred from the ED to the neuro-interventional unit within the hospital. (See Exhibit “A).

Plaintiff’s Response: Agreed, except that the timing is unclear because the document has no computer-generated time-stamp and no clear time hand-written.

10. At that point, Dr. Hughes’ care and treatment of this patient concluded.

Plaintiff’s Response: Undisputed that Dr. Hughes did nothing for Tim after he sought to transfer Tim from the ER to the NVI.

11. Less than two hours later, Plaintiff was transferred to the neuro-interventional unit.

Plaintiff’s Response: Agreed

12. At approximately 11:56 p.m., for the first time, Plaintiff began reporting neurological changes. (See Deposition of Jon Abbate, p. 111).

Plaintiff’s Response: Agreed

13. Dr. Steuer was called by the floor nurse.

Plaintiff’s Response: Agreed

14. Dr. Steuer came to the hospital and ultimately performed a cervical decompression neurosurgery.

Plaintiff’s Response: Agreed

15. Plaintiff was initially discharged to Shepherd Center for physical therapy. (See Complaint).

Plaintiff’s Response: Agreed

16. Unfortunately, he later sustained a stroke and was treated at both Northside Hospital and Emory University Hospital. (See Complaint).

Plaintiff’s Response: Agreed

17. Fortunately, Plaintiff has recovered well, walks without assistance, has returned to work and is not a quadriplegic.

Plaintiff’s Response: Depends on what you think constitutes recovering “well.” Tim has permanent neurological and cognitive deficits. His hands are twisted, he has difficulty using his arms and legs, he has impaired bladder function, he’s lost sexual function, his ability to work is a fraction of what it was before the injuries, etc. He’s not a quadriplegic, though.

18. Plaintiff and Dr. Hughes had a physician / patient relationship on December 20, 2016, from the time of admission of Plaintiff to the emergency department, until the issuance of transfer/holding orders to the NVI.

Plaintiff’s Response: Agreed, except that Dr. Hughes could not end his responsibility just by signing holding orders that left Tim in a no-mans-land in which no physician was responsible for him while he awaited actual admission to the NVI.

March 1, 2021

Respectfully submitted,

/s/ Lloyd N. Bell                    

LLOYD N. BELL

Georgia Bar No. 048800

DANIEL E. HOLLOWAY

Georgia Bar No. 658026

BELL LAW FIRM

1201 Peachtree Street, NE, Suite 2000

Atlanta, GA 30361

(404) 249-6768 (tel)

(404) 249-6764 (fax)

bell@BellLawFirm.com

/s/ Lawrence B. Schlachter                      

Lawrence B. Schlachter M.D. J.D.

Georgia Bar No. 001353

SCHLACHTER LAW FIRM

88 West Paces Ferry Rd

Atlanta Ga 30305

(770) 552-8362 (tel)

larry@schlachterlaw.com

Attorneys for Plaintiffs

[1] As of this writing, Plaintiffs’ counsel have conferred with Dr. Koebbe and drafted an affidavit for him to review. We anticipate filing the edited and finalized affidavit within days of filing this brief. OCGA 9-11-56(c) provides for the filing of affidavits up to the day before a hearing on summary judgment. In accordance with that statute, Plaintiff may file an additional affidavit to address any points raised in the Defense reply briefs.