Sample Motion for Summary Judgment

ROBERT A. JONES, as Administrator of the Estate of Jane Doe,

Plaintiff,

vs.

ABC HOSPITAL, INC.; PHYSICIANS & SURGEONS, INC.; SMITH UNIVERSITY BOARD OF GOVERNORS; J. JOHNSON; E. BROWN; G. GREENE; W. WILLIAMS; BARB BLUE; and WENDY WHITE,

Defendants.

CASE NUMBER: 0:00-cv-00000

MEMORANDUM IN OF LAW IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OF WENDY WILLIAMS

1. INTRODUCTION

Comes now the Defendant, Wendy Williams, R.N., by counsel, Sam Samuels and the law firm of Samuels & Assoc., PLLC, and hereby submits the following memorandum of law in support of her Motion for Summary Judgment.

Defendant’s Motion for Summary Judgment should be granted as Plaintiff has failed to disclose an expert qualified in nursing who holds the opinion that Defendant, Williams, has breached the standard of care and/or caused harm to Jane Doe.

2. STATEMENT OF FACTS

This case concerns the death of a 37-year-old physician who experienced a second-trimester septic, missed abortion. Dr. Jane Doe, came to ABC

Hospital on 9/28/11 at or about 18:25 with vomiting, headache, and fever of 102.8. She was tachycardic upon admission with a blood pressure of 91/67. She was in the 17th week of her pregnancy with obvious complications and she was sent emergently to the OB Triage area.

Her fetus was not viable, had no heartbeat upon admission. During the duration of Dr. Doe’s hospitalization, her condition never stabilized. She was placed in the surgical care unit where she died on October 2, 2019.

Dr. Doe had suffered two ectopic pregnancies, lost one ovary, miscarried another child, and undergone in vitro fertilization for this current pregnancy. At the time of her admission, she was 17 weeks and 3 days pregnant with fever, chills, vomiting and tachycardia.

She was under the care of University Physicians & Surgeons, so, she was taken to OB Triage by her neighbor, Paul Paulson. Urine was sent to the lab, the physician was notified and arrived at her bedside, and the patient was given Tylenol for fever.

All of this was accomplished and documented by 18:50. Before 19:40, an IV was started, blood was drawn and sent to the lab. No fetal heartbeats were detected by Doppler so a bedside ultrasound was performed by Dr. Brown which showed no detectable heartbeats. The patient was then taken for a complete ultrasound to x-ray, which must be done in cases of this nature.

Once the fetal demise was confirmed by ultrasound, she was returned to the floor at 21: 15. Dr. Greene and Dr. Brown discussed a plan of care with the patient. Nitrozine and fern tests were both positive for amniotic fluids which indicated the membranes had ruptured sometime earlier.

Although Dr. Doe denied leaking membranes upon admission, she later recalled the leaking of fluid the day before her admission. A vaginal exam was performed and the cervix was dilated to 3 cm.

The amniotic fluid was noted to be leaking purulent drainage (pus). Cultures were done which were quickly positive for Escherichia coli (the bacteria that is commonly found in the lower GI tract and stool).

Broad-spectrum antibiotics were ordered at around 11 p.m. in the form of clindamycin, gentamicin and ampicillin was also ordered. Dr. Greene determined that Dr. Doe was suffering from sepsis from chorioamnionitis due to intrauterine fetal death.

She was given misoprostol, a prostaglandin, to induce expulsion of the dead fetus. Morphine was ordered for pain but was held multiple times by the nurses due to hypotension. After the fetus was expelled at 3:05, the placenta was noted to have a foul smell, as well.

Dr. Doe’s condition required pressers to maintain her blood pressure. As she progressed, she developed, ARDS (acute respiratory distress syndrome) and she was placed on a ventilator with sedation. She also developed DIC (disseminated vascular coagulation) which is a clotting disorder seen after sepsis or large blood loss. She also developed renal failure and metabolic acidosis.

Very early in her admission, she required continuous renal replacement therapy for her kidney failure and her antibiotic dosing was adjusted to accommodate this condition. On October 2, 2019, she was unresponsive to pain, had pupillary reflexes suggestive of a severe intracranial hemorrhage due to DIC.

She was given only one dose of Manitol, a drug that is given to decrease the swelling of the brain, because her osmoles remained too high for a second dose. She died later that day.

3. SUMMARY JUDGMENT STANDARD OF REVIEW

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, motion for summary judgment “shall be rendered forthwith if the pleadings, deposition, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” See, Fed R. Civ. P. 56(c); Barwick v. Celotex Corp., 736 F2d. 946 (4th Cir.); Celotex v. Catrett, 477 U.S. 317, 322-24(1986).

To prevail on a motion for summary judgment, the moving party has the burden of showing the absence of any genuine issues as to all the material facts, which under the applicable principles of substantive law, entitle him/her to judgment as a matter of law. Lewis v. Coleman, 257 F. Supp. 38 (S.D. W. Va. 1966). A genuine issue of material fact exists if the evidence is such that a responsible jury could return a verdict for the non-moving party. Sayer v. General Nutrition Corp., 867 F. Supp. 431 (S.D. W. Va. 1994), Affirmed, 67 F.3d 296 (4th Cir. 1995).

4. ARGUMENT
   1. THE EXPERT PHYSICIANS WHO HAVE TESTIFIED ON BEHALF OF THE PLAINTIFF DO NOT QUALIFY AS NURSES.In response to Defendants’ Motion to Limit Plaintiff s Experts, the Court stated as follows:
      

      It is not clear that a physician will be deemed qualified offer (sic) credible testimony on the standard of care applicable to nurses; it should instead be expected that only testimony by a nurse will reliably establish the applicable standard of care.

      In disclosures, many of the physicians involved as expe1is on the behalf of Plaintiff had offered opinions regarding nursing care. During the depositions, however, it became clear that not one of the physicians had gone to nursing school; had been educated or trained as a nurse; had any credentials as a nurse, and none were registered with any boards of nursing. Although many of the physicians expressed a belief that they could testify regarding what nurses do, such opinions do not qualify them as nurses.

      Dan Richards, M.D., in particular, thought himself to be qualified as a nurse. Yet, he could not formulate a recognizable nursing diagnosis based on the admit
      ting records he was provided or on any of the medical records he had reviewed. (Exhibit A, deposition of Dan Richards, M.D., pp 91-92).

   2. ASSUMING, ARGUENDO, THAT THE COURT DETERMINES THE EXPERT PHYSICIANS WHO HAVE TESTIFIED ON BEHALF OF THE PLAINTIFF ARE QUALIFIED AS NURSES, THEIR TESTIMONY IS NOT SUFFICIENT TO SURVIVE SUMMARY JUDGMENT.DAN RICHARDS, M.D.

      He did not, of his own volition, offer testimony against Wendy White when giving his opinions at his deposition. Rather, he was led into vague references about her conduct when he was asked by this defense counsel:

      Question: “ls there anything else you plan on commenting about that we haven’t asked you?”

      Answer: “I think we have covered most of what’s in my report. I think that covers it.”

      (Exhibit B, p. 104, Deposition of Dr. Richards).

      Following this exchange, Plaintiff s counsel asked Dr. Richards if he disagreed with some of the opinions of Dr. Lowman, the obstetrical expert for the defense. Plaintiff s counsel stated,

      Mr. Gaston: And…

      Question “. . . And doctor, I believe, do you have some additional opinions with respect to the breaches, and I’ll just, although not specifically referred to in your deposition here today, that there was a nurse by the name of Williams who administered the clindamycin to Dr. Doe around 11:30 p.m.?”

      Answer: “OK”

      Question: “And she did not administer the gentamicin at that time and I think it’s your opinion that the nurse should have checked at that point to see whether gentamicin was and why it wasn’t on the chart.”

      Mr. Samuels: “Objection. You are stating an opinion that he hasn’t given.”

      Mr. Gaston: “I’m asking if it’s true.”

      Mr. Gaston went on to inquire,

      Question: ” Doctor, is that an opinion that you intend to give if there was a breach by Nurse White that at the time she gave the clindamycin at 11:30 that she should have also checked to find out where the gentamicin was because both of those medications had been ordered at the same time by Dr. Greene?”

      Answer: “I think that would have been the appropriate action to take, yes.”

      Question: “And you also believe that there was a breach in the standard of care by the nurses when they transferred Dr. Doe from OB Labor and Delivery into the intensive care unit by not at least notifying the pharmacy of the transfer and finding out and letting them know where to send the gentamicin because Dr. Doe had been transferred from one unit to another?”

      Mr. Samuels: “Same objection to leading your witness.”

      Answer: “I think there should have been more vigilance to make sure this patient got the drugs that were ordered which in her case would have been life saving.”

      This testimony was very weak and not part of the opinions that were offered by this witness in his direct examination. They were more of suggestions by Plaintiff’s counsel that

      were agreed to by Dr. Richards. Further, these were vague criticisms of the nurses, not specifically criticisms of Ms. White. Dr. Richards does not single out Nurse White when he says, “that would have been an appropriate action to take,” (Exhibit C, deposition of Dr. Richards, p 105) Given that Dr. Richards is not a nurse and can never qualify as a nurse, and the fact that his testimony of nurse White came only in agreement to the prompting of Plaintiff s counsel, makes it less credible. Dr. Richards should not be entitled to testify against nurse White as an expert in nursing.

      LARS KENNY JR., M.D.

      Plaintiff has also offered Lars Kenny, Jr., an emergency room physician, who was asked:

      Question: ” . . . . Do you have any criticisms of W. White?”

      Answer: “Criticism of . . .?”

      Question: “W. White? It’s W-H-I-T-E”

      Answer: “Oh yes.”

      Question: ” She’s the nurse that hung the clindamycin and that’s the only thing that I can see in this record she did in this case. She was not a primary nurse.”

      Answer: “I don’t think so, but let me check. I mean there are an awful lot of players in this.”

      Question: “I know.”

      Answer: “Only in -in the issue about the disappearance of gentamicin. I mean gentamicin was – we know was formulated in the pharmacy. The tech mixed it at about a quarter to 12, as I – as I – or, know, about a quarter to 11 as I recollect. So after 11 it was sent somewhere, presumably to the obstetrical department, although I can’t find any documentation of that anywhere. But, presumably, it went to the obstetrical department. There was a handoff between the obstetrical nurses and the ICU nurse.

      What happened to the gentamicin is very unclear to me. I mean I think it wound up in the ICU because I think that’s the dose that was given to the patient at 6:17 in the morning. I think that there is support for that in the clinical records. However, there is nothing in the nursing notes and nothing in the nurse’s memory that they interacted to – you know, to locate the gentamicin, to make sure the patient got it, that they talked about it and reported hand off. So that’s – I think it’s a criticism of failure of communication, basically. And, failure to check and make sure the patient got a dose of medication that was ordered.”

      Question: “Is there anything that you’ve read that tells you Wendy White had anything to do with reporting of this patient that was not her primary patient?

      Answer: “I think she accompanied her to the – the ICU if mem01y serves me correctly and you know, I would think had some knowledge of the fact that, you know, gentamicin was ordered and gentamicin wasn’t given. I mean, if she can say, I never knew that. I mean, this is not in her deposition, but if she could say it in testimony in court, for instance, or in a supplementary deposition, “I never” – “I was just helping push her down the hall, I had no idea what medications were ordered, I had no idea what medications were there or available” or anything like that, I would obviously withdraw that criticism.”

      He went on to admit that he did not know what time the medication got to the floor based on the testimony of the pharmacy witnesses. (Exhibit C, Deposition of Lars Kenny, Jr., M.D., pp. 137-140.)

      In the testimony of Wendy White, it was her testimony that she recalled going to help the nurse that was taking care of Ms. Doe on Labor and Delivery and helping her transport the patient to the ICU. (Exhibit D, Deposition of Y Wendy Williams, p. 12) She was asked by Plaintiff s counsel:

      Question: “Ok. In as far as you know you have no memory, one way or the other, whether gentamicin was in Labor and Delivery Unit when Dr. Doe was transferred in to Intensive Care; would that be fair?”

      Answer: “I don’t remember.”

      Question: “Did you make a phone call to facilitate the transfer of Dr. Doe from -?”

      Answer: “No.”

      Question: “No? Ok. Did you prepare any paperwork for the transfer?”

      Answer: “No.”

      Question: ” Ok., so your main role was to help – – – ?”

      Answer: ” Push the bed.”

      (Exhibit D, Deposition of Wendy White, p. 15)

      Dr. Kenny stated in his deposition that if Wendy White testified she was just helping push the patient down the hall and had no idea what medications were ordered, he would withdraw his criticism. Ms
      . White testified that she was just there to push the bed down the hall and to help and assist nurse Eyre by hanging a bag of clindamycin. She does not recall seeing any other medications and did not testify that she had reviewed any medications orders or anything of that nature. Based upon his sworn testimony that he would withdraw his criticisms if Ms. White testified that she was just helping to push the bed and did not know what medications were ordered, he should do so. Therefore, the testimony of Dr. Kenny is not an issue.

      KAYLA SPICER, M.D.

      Kayla Spicer, M.D., testified that the nurses in OB should have given the gentamicin or communicated with the nurses in the SICU that they had not done so. In her deposition, when she learned that the medication was not ordered stat and was asked if she was still critical of the OB nurses for not giving it before the patient was transported out to the ICU, her answer was:

      Answer: “if it’s not written “stat,” it usually goes to the next given time. It’s every 8-hour medication that’s – if they don’t write it “now,” usually it goes to the next, the next time that would be on schedule. That’s pretty much how things work with antibiotics.”

      She went on to say that if Wendy White had been found to have given the gentamicin before the patient left the obstetrical unit she would have no further criticism of her. Dr. Spicer had no specific criticisms of Wendy White beyond not giving the gentamicin and she admitted herself that if the gentan1icin was not ordered “stat,” it would have been given at the next scheduled dose, in her opinion. The medical records indicate that the medications were not ordered stat (Exhibit E, Deposition of Kayla Spicer, M.D., pp 56-59)

      LEO JAMISON, M.D.

      Leo Jamison, M.D., was asked if he considered himself to be a nurse and he said, “I don’t.” When asked if he considered himself to be an expert in nursing, Plaintiff s counsel objected and he responded, “that’s overbroad. I have testified multiple times and my testimony has been admitted to court multiple times with regard to specific aspects of nursing care particularly in an intensive care unit regarding the management of critical patients and critically ill patients.” He was then asked,

      Question: “And do you have any criticism of Wendy White?”

      Answer: “No.” (Exhibit F, Deposition of Leo Jamison, M.D., p. 110)

      Dr. Jamison is aware that although he has testified about nursing issues with intensive care management of critically ill patients, he is not a nurse. He clearly has no criticisms of Wendy White.

      ROBERT GIBSON, M.D.

      Dr. Gibson is an obstetrician with a sub-specialty in Maternal/Fetal Medicine. He offered no criticisms of Ms. White during his deposition until Plaintiff’s Counsel cross examined him. Mr. Gaston asked if it was Ms. White’s obligation when she gave the clindamycin to note that gentamicin was also ordered and then communicated to the ICU nurse that gentamicin had not been given. He responded in the affirmative, but he also agreed that Ms. Eyre, the nurse assigned to the patient looked at the order and had the obligation to check to see where the gentamicin was and what had happened to it. When he was taken through the scenario that occurred-Ms. White coming to hang the clindamycin and returning to transport the patient, he stated a vague criticism of “anyone that doesn’t let the SICU know that the gentamicin had not been given.” (Exhibit G, Deposition of Dr. Gibson, p. 123) He conceded that Ms. Eyre was the “main nurse” and the one who checked the order before she reported to the ICU. When asked, if it was

      more likely than not that she reported that information to the ICU. His response was “You would think.” Although he did not remove Ms. White’s name from the group of people who did not let the ICU know that the gentamicin had not been given, he did not single Ms. White out as the primary person obligated to do so. It was clear that Dr. Gibson believed that the failure to administer the pm dose of gentamicin by nurses, along with the failure of the physicians to order appropriate fluid boluses were the reason that the patient did not survive. There was no testimony that White’s actions alone were a proximate cause of the patient’s death or injury.

      Dr. Gibson admits that he has not ever been a nurse. He also testified that he did not consider himself to be one. (Exhibit H, deposition of Dr. Gibson, p. 116)

      None of the Plaintiff’s physicians are qualified to give standard of care testimony regarding nursing. Many of the doctors have no criticism of Ms. White and the ones that do have only presumed that Ms. White had a duty, not being the primary nurse, to administer the gentamicin or contact pharmacy or report to the SICU.

   3. PLAINTIFF’S EXPERT, JEN GILLIAN, R.N., HAS NOT ASSERTED A PRIMA FACIE CASE OF NEGLIGENCE AGAINST WENDY WILLIAMS. JEN GILLIANPlaintiff offered the testimony of Jen Gillian, R.N., as his only nursing expert. Ms. Gillian offered criticisms of policies and procedures of the obstetrical unit, but when asked about criticisms of nurse White, her criticism was that Ms. Whites had an obligation to find out where gentamicin was at the time clindamycin was administered to Dr. Doe because, “She was the nurse taking care of the patient. She certainly had the obligation in transferring the patient to – she hasn’t received gentamicin, I need to make sure I locate it, whatever.” This testimony again came after questioning by Mr. Gaston and not as part of the opinions rendered in the case under direct testimony. Upon re-examination, when reminded that Ms. White was not the primary nurse and had only come to hang a bag of medication, her response was:

      Answer: “Well, you know, you’ve got the one who took the order off the computer so I think it was just a – somebody had to be responsible. It just wasn’t done. But, no, she gave the medication.”

      Question: “Ok. Then you’re not critical of nurse White for coming to help, like we talked about earlier, to hang the bag of fluid for someone?” Answer: “No.”

      Question: “Ok. And, you are not holding her to the standard of care she would be held to if she was the primary nurse in this case as to finding out where the medications were and what was going on with the patient, are you?”

      Answer: “I am imagining in my mind that communication was, ‘Listen, we got the antibiotics.’ That is she knew about the clindamycin, I’m just assuming that she knew about the gentamicin that she also knew that the gentamicin had to be given, because she put it in the computer. She would have seen it. So, since she gave the clindamycin she should have known about the gentamicin and at least asked about it. (Emphasis added) Somebody – – I guess the thing is, Becky, we don’t really know who didn’t do what they were supposed to do.” Later in the same deposition, she was asked whose primary responsibility was it?

      Answer: “Based on what you’re telling me about the nurses, she knew that she had antibiotics ordered. So if you have knowledge that they’ve been ordered, the primary responsibility would be the person who took the order off the computer. And then it trickles down. And I don’t believe that the person who took the order off the computer was really the person doing the work with this patient.”

      Question: “Is it typically the primary nurse’s responsibility to locate the medication and see that they’re given timely?”

      Mr. Gaston: “Objection to was typical.”

      Mr. Samuels: “In your experience.”

      Answer: “I know what you’re asking. In my experience, if that’s my patient that’s assigned to me, then yes, I’m usually the one – but h
      owever, I work on a big med surg floor where we have a med nurse. But they do tablets and things like that and what they do isn’t really why I’m here.” (Exhibit I, Deposition of Ms. Gillian, pp 161-163) It is clear that Ms. Gillian does not have any substantial criticism of nurse White if she was not the primary nurse, which she has testified she was not. Ms. Gillian has admitted that the primary nurse (the one to whom the patient is assigned) has the responsibility. Amanda Eyre was the primary nurse in this case

5. CONCLUSION

In summary, the Court has stated its intention that only persons qualified in nursing, such as a nurse, will be permitted to testify regarding the care or deviation therefrom by the nurses in this case.

None of the physicians had a clear criticism of Wendy White that withstood cross-examination. Therefore, the physician experts named by Plaintiff should not be permitted to testify against Wendy White or Barb Blue. Jen Gillian, R.N. has not offered sufficient testimony regarding the negligence of Wendy White who was not a primary care nurse in this case.

Therefore, Wendy White is entitled to summary judgment which should be granted. Wherefore, this Defendant requests that she be granted summary judgment as a matter of law.

Respectfully submitted,
Wendy White

By: /s/ Sam Samuels
Counsel

Sam Samuels, Esq.
SAMUEL & ASSOC., PLLC
123 Main Street
Huntington, West Virginia 25720
(555) 555-5555 (Phone)
(555) 555-5555 (Fax)