Motions: Jenkins P1 — Daniel E. Holloway, Attorney

In mid-December of 2016, Tim Jenkins had surgery on the back of his neck. The neck surgery involved cutting the bony posterior parts of the vertebrae in Tim’s neck, exposing the spinal cord but relieving pressure on it. The vertebrae were fixed in place with rods and screws. This part of the surgery went well, and for over a week all seemed fine.

Before the surgery, however, Tim’s pre-screening labs had indicated a coagulopathy. A “prothrombin time” (PT) test showed that Tim’s blood was abnormally slow in forming clots. Slow blood-clotting puts you at risk of various problems — including a surgical-site hematoma.

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

Tim’s abnormally long Prothrombin Time should not have been a big problem. It could easily have been addressed in time for surgery, by giving Tim blood products to boost the “Factor VII” “clotting factor” his body was deficient in.

However, none of the physicians or nurses involved in Tim’s neck surgery addressed Tim’s abnormal PT. The anesthesiologist is supposed to review pre-surgery labs and address potential problems. The anesthesiologist didn’t do that. The pre-operative nurses are supposed to review labs and flag any abnormalities, to make sure none get overlooked. The nurses didn’t do that. The surgeon, too, is supposed to review labs and make sure problems have been addressed. The surgeon didn’t do it either. Tim underwent the surgery with his coagulopathy unaddressed.

Eight days after the neck surgery, on December 20, 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. Later that day, however, Tim suddenly developed severe, excruciating pain in his neck. Tim’s family called 911, and an ambulance took Tim to the Emergency Room.

A large hematoma over the exposed spinal cord is dangerous. Compression of your spinal cord can damage the nerve fibers in the cord — the nerve fibers by which your 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.

The Emergency Room physician saw the huge swelling on the back of Tim’s neck at the area of the surgery and noted that this area was “exquisitely tender.” The ER physician placed hematoma on his list of potential causes, and he called the spine surgeon who performed the surgery. The surgeon told the ER physician not to bother getting a CT scan of Tim’s neck. The ER physician ordered a CT scan anyhow.

The CT images confirmed a massive hematoma over the spinal cord in the back of Tim’s neck. The surgeon would later testify that it was the biggest hematoma he had ever seen. A huge hematoma over the spinal cord in the neck — especially with evidence of pain from nerve root compression — is an emergency. It indicated a risk of catastrophic injury to Tim’s spinal cord. 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. 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.

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. The medical records do not document that the ER physician ever reviewed the report or otherwise followed up on the CT to find out what it showed. So of course the ER physician did not call the surgeon back to notify him of the CT results. Tim’s physicians let him lie for hours in the hospital, doing nothing to prevent the hematoma from growing to the point that it eventually compressed Tim’s spinal cord enough to cause permanent injury.

The physicians transferred Tim from the ER to an intermediate neuro-care unit for pain management. Around midnight, a friend of Tim’s told the nurses that Tim was losing his ability to move his legs. That finally prompted action that brought the surgeon to the hospital to evacuate the hematoma. By that time, however, Tim had suffered permanent neurological injury.

In the months and years since then, Tim has had multiple surgeries to address various aspects of the neurological injury. Today, Tim’s arms and lower body are impaired. He can walk with difficulty, and his arms and hands are twisted and impaired. Sexual function is gone. Bladder function is impaired. And Tim lives with chronic pain.

That wasn’t the end of it, though. After the hematoma was evacuated, Tim’s surgeon still did not investigate or address Tim’s coagulopathy — the abnormally slow Prothrombin Time that likely led to the hematoma in the first place. And while Tim remained in the hospital unable to move his arms or legs, he experienced another bleeding event caused by his then-still-undiagnosed coagulopathy — a hemorrhagic stroke. Tim suffered a subarachnoid hemorrhage, a rupture of blood vessels in between the brain and the protective membrane that covers the brain. So Tim is also left with permanent brain damage.

That wasn’t the end of it, either, though. Anyone bed-bound — like a quadriplegic recovering in the hospital — is at high risk of pressure wounds. Lie too long in place, and the unrelenting pressure will deprive the skin over bony prominences of blood and oxygen. Wounds will develop, tissues will die, and with enough time, tunnels may develop in the wound — taking tissue damage farther into the body. The skin over the sacrum, in the area of the buttocks, is at high risk of such pressure wounds. While recovering in the hospital as a quadriplegic, Tim developed a severe pressure wound in his sacral area, with tunneling inward toward his bowel. The wound required multiple surgeries.

* * *

Plaintiffs sued the medical providers (i) who failed to address Tim’s coagulopathy before the neck surgery, (ii) who failed to respond properly when Tim showed up in the ER with a hematoma threatening to harm his spinal cord. Those medical providers include the anesthesiologist, the pre-op nurses, the spine surgeon and his physician assistant, the triage nurse in the ER, the ER physician, and the radiologist. There are five individual Defendants and their employers, plus Northside Hospital, which employed the nurses (who are not sued individually).

The evidence permits the jury to conclude that each of the individual Defendants, and Northside’s pre-op nursing staff, served as a link in a chain of incorrect decisions that collectively caused Tim Jenkins to suffer spinal cord compression, hemorrhagic stroke, and pressure wounds.

Northside Hospital, however, makes two points we agree with — and a third point that is rendered moot as noted below. We agree with Northside (a) that Dr. Hughes was not their employee at the time, so that Northside is not vicariously liable for his negligence; and (b) that Plaintiff cannot prove causation as to the Emergency Room nurses’ failure to conduct neurological checks of Tim Jenkins. Plaintiff will not press claims against Northside on those grounds. Additionally, as to Northside’s argument concerning the nursing staff’s failure to take preventive actions to avoid pressure wounds from developing on Tim: Plaintiff will not seek to establish such negligence at trial, nor claim any damages specifically caused by that negligence. Instead, Plaintiff will simply claim the pressure-wound damages as foreseeable consequences of the negligence that led to Tim becoming temporarily quadriplegic in the first place.

The remaining arguments in the various summary judgment motions, however, invite the Court into reversible error. The remaining Defense arguments rest on two errors. First, the Defense arguments rely on an unspoken, unargued assertion that the jury must believe testimony by one Defendant that would exculpate a Co-Defendant, despite circumstances from which the jury could find the exculpating testimony unreliable. Five sets of lawyers rely on this You-Must-Believe-Our-Co-Defendant-Who-Exonerates-Me premise. Between them, these five sets of lawyers do not cite a single legal authority supporting that premise, because there isn’t any.

Second, the Defense arguments also rely on a broken-chain-of-causation theory that Georgia law explicitly rejects. The Defense arguments each say essentially this: Co-Defendant X was involved in Tim Jenkins’ case after me, and X’s negligence broke the chain of causation between my negligence and Jenkins’ injuries.” But Georgia law rejects that defense. As the Court of Appeals holds:

The liability of a tortfeasor whose actions started the chain of events leading to the victim’s injury is superseded and cut off only if there intervened between the act and the injury a distinct, successive, unrelated, efficient cause of the injury.

Knight v. Roberts, 316 Ga App 599 (2012). In Knight, therefore, the Court of Appeals reversed a trial court’s order granting summary judgment, holding that:

In light of evidence that [the Defendant’s] negligence was a link in the chain of incorrect decisions made with regard to [Plaintiff’s] treatment, a jury question of proximate cause existed.

Id.[1]

Georgia law rejects arguments that it would have done no good for these Defendants to have done their own jobs because down-stream physicians acted negligently, too.

Accordingly, Tim Jenkins asks the Court to deny the summary judgment motions of the individual Defendants, and to deny Northside’s motion as to the negligence of the pre-operative nursing staff.

FACTS

Plaintiffs’ separately filed Statement of Facts contains a detailed recitation of facts. The narrow set of facts specifically relevant to the Defendants’ motions are contained below in the Argument. However, Plaintiff incorporates here the entirety of the separately filed Statement of Facts.

ARGUMENT

The Defendants collectively committed two general acts of negligence — the first before the neck surgery, and the second when Tim went to the Emergency Room:

(a) ignoring evidence of Tim Jenkins’ coagulopathy before his neck surgery, and

(b) in the Emergency ignoring evidence of a hematoma that threatened to (and later did) compress Tim’s spinal cord.

The Defendants who ignored evidence of a coagulopathy (and filed summary judgment motions) are: (i) Carter Cooper, PA, (ii) Catherine Meredith, MD, and (iii) Northside Hospital (through their pre-op nurses).

The Defendants who ignored evidence of the hematoma (and filed a motion) are: (iv) Richard Amerson, MD, and (v) Mark Hughes, MD.

Georgia law rejects all their causation arguments, and precludes summary judgment.

1. Cooper, Meredith, Pre-Op Nurses — ignoring the coagulopathy: The jury can find that these Defendants acted as links in a chain of incorrect decisions that caused Tim’s injuries.

PA Cooper, Dr. Meredith, and the pre-op nurses contributed to Tim Jenkins’ injuries by failing to follow up on Tim’s abnormal Prothrombin Time. All of these Defendants admit that the evidence allows the jury to find them negligent. No Defendant seeks summary judgment based on a lack of evidence of negligence. (See their motions and briefs.)

Negligence

These actors were all responsible for flagging Tim’s abnormal Prothrombin Time before Tim’s neck surgery, and ensuring that it was noted and addressed. (Statement of Facts (SOF), ¶¶ 11-18.) None of these Defendants did so.

We address causation below, but the facts concerning negligence are as follows:

· Physician Assistant Carter Cooper: PA Cooper worked as an assistant to the spine surgeon who performed Tim’s neck surgery. A week before the surgery, PA Cooper received a notice of Tim’s abnormal lab result. (SOF, ¶¶ 4, 14.) The standard of care required PA Cooper not merely to inform the surgeon, but to take action independently to remedy Tim’s coagulopathy — which generally would be done by consulting a hematologist. (SOF, ¶¶ 15-16.) PA Cooper neither informed the surgeon nor acted independently on the evidence of coagulopathy. (SOF, ¶ 22.)

· Anesthesiologist Catherine Meredith, MD: Dr. Meredith was the anesthesiologist for Tim’s neck surgery. The standard of care required her to review Tim’s pre-surgery lab results — which included Tim’s abnormal Prothrombin Time. (SOF, ¶¶ 18-20.) Specifically, the standard of care required Dr. Meredith to repeat the PT test, which likely would have confirmed the abnormal result and led to the identification of Tim’s coagulopathy. (SOF, ¶¶ 18-20.) Then the standard of care required Dr. Meredith to advise the surgeon of Tim’s clotting problem, and to make a joint decision with the surgeon of how to deal with the coagulopathy. (SOF, ¶¶ 18-20.) In actuality, however, Dr. Meredith did none of this. Dr. Meredith allowed Tim to go into surgery with nothing done about his coagulopathy. (SOF, ¶ 24.)

· Pre-Op Nurses: The standard of care required the pre-op nurses to review the pre-surgery lab results and to bring Tim’s abnormal PT to the attention of the anesthesiologist and/or the surgeon. (SOF, ¶ 17.) They did not do so. (SOF, ¶ 23.)

Causation

The evidence permits the jury to find that each of these acts of negligence served as a link in a chain of incorrect decisions that caused Tim Jenkins’ injuries. First, Dr. Lawrence Goodnough, a hematologist from Stanford University Medical Center, testifies that if Tim’s abnormal PT had been addressed before the neck surgery, Tim’s coagulopathy likely would have been identified and treated successfully — preventing both the hematoma and the hemorrhagic stroke. (SOF, ¶ 11.) Second, Dr. Christopher Koebbe, a neurosurgeon expert, testifies that if the spine surgeon in this case had been notified of Tim’s abnormal Prothrombin Time, the standard of care would have required the surgeon to take action to identify and treat Tim’s coagulopathy before performing the neck surgery. (SOF, ¶ 20.)[2] Therefore, by failing to notify the spine surgeon about the abnormal PT, each of these Defendants — PA Cooper, Dr. Meredith, and Northside (through the pre-op nurses) — contributed to causing the hematoma and hemorrhagic stroke and the harms that flowed therefrom.

Under Georgia law, these Defendants do not escape liability simply because they are links in a chain of causation, and the spine surgeon sits as a link in between these Defendants and the injury. As the Court of Appeals wrote in Knight v. Roberts:

[T]he liability of a tortfeasor whose actions started the chain of events leading to the victim’s injury is superseded and cut off only if there intervened between the act and the injury a distinct, successive, unrelated, efficient cause of the injury.

316 Ga App 599 (2012). Thus, in Knight the Court of Appeals rejected an argument that a physician earlier in the chain of causation was off the hook because another physician appeared farther along the chain:

[Plaintiff’s expert] concluded that [Defendant] Dr. Roberts’s failure to timely diagnose Mrs. Knight’s aortic dissection in the ER was a contributing cause leading to Mrs. Knight’s ultimate death and amounted to a link in the continuum that culminated in her death. [Defendant] Dr. Roberts’s argument that he turned Mrs. Knight’s care over to [Co-Defendant] Dr. Cone and was not involved in Dr. Cone’s evaluation and treatment is unavailing. Here, Dr. Cone’s alleged misdiagnosis and mistreatment of Mrs. Knight during her ongoing hospitalization at TMC was not unrelated to Dr. Roberts’s previous alleged failure to properly diagnose and treat Mrs. Knight.

In light of evidence that Dr. Roberts’s negligence was a link in the chain of incorrect decisions made with regard to [Mrs. Knight’s treatment, a jury question of proximate cause existed.

Id.

The Court of Appeals’ decision in Knight reflects prior decisions, among them, for example:

· MCG Health v. Barton, 285 Ga App 577 (2007):

“[I]t is [] well settled that there may be more than one proximate cause of an injury in cases involving the concurrent negligence of several actors.”

“Whether or not the actions and inactions of [the] hospital employees were distinct and unrelated to the actions of the Board’s physicians is a question of fact best resolved by a jury.”

· Walker v. Giles, 276 Ga App 632 (2005):

“The trial court’s [grant of summary judgment] was erroneous because the liability of a tortfeasor whose actions started the chain of events leading to the victim's injury is superseded and cut off only “if there intervened between the act and the injury a distinct, successive, unrelated, efficient cause of the injury. Here, the alleged misdiagnosis and mistreatment of Walker by Dr. Smith and Dr. Novak on Saturday and Sunday that contributed to her injuries was not unrelated to appellees’ previous alleged failure to properly diagnose and treat Walker.”

· Schriever v. Maddox, 259 Ga App 558 (2003) (concluding that the subsequent treating physician’s alleged negligent actions were not intervening, but were very similar to the initial physician’s negligence, and therefore, merely compounded the initial physician's negligence).

In Tim Jenkins’ case, it is true that the spine surgeon also ignored Tim’s coagulopathy. That surgeon is also a Defendant (but has not moved for summary judgment). But the surgeon’s negligence does not absolve PA Cooper, Dr. Meredith, or the pre-op nurses for their essentially identical negligence. All these Defendants are in the same boat. Together, they all ignored Tim’s coagulopathy, and together they all thereby caused Tim’s injuries.

The Defense Arguments Fail

These Defendants — PA Cooper, Dr. Meredith, Northside — all argue that they are off the hook on the ground that it is beyond dispute that the surgeon did know about Tim’s abnormal PT results and chose to disregard it anyhow. So, these Defendants argue, their own negligence didn’t matter; the surgeon breaks the chain of causation as to these Defendants. The Defense argument fails for three reasons.

Three Reasons the Defense Argument Fails

1. PA Cooper and Dr. Meredith had independent duties that did not depend on the surgeon’s actions.

Two of the three Defendants here — PA Cooper, Dr. Meredith — faced different duties in following up on Tim’s abnormal PT results. Only the pre-op nurses were limited to simply informing other providers.

PA Cooper’s duties required him to address Tim’s coagulopathy independently of the surgeon. (SOF, ¶¶ 15-16.) PA Cooper was required, independently of the surgeon, either to consult a hematologist to address Tim’s abnormal PT results or to take other action to identify and treat Tim’s coagulopathy before surgery. (SOF, ¶¶ 15-16.) PA Cooper’s duties did not run through or depend on the surgeon’s actions.

Dr. Meredith faced duties that did not depend on the surgeon, and also duties that required her specifically to consult with the surgeon and to make a joint decision. First, independently of the surgeon, the standard of care required Dr. Meredith to repeat the PT test to confirm the results. (SOF, ¶ 18.) The repeat likely would have led to identification of Tim’s specific coagulopathy (a “Factor VII” deficiency). (SOF, ¶¶ 11, 18.) The standard of care would then require Dr. Meredith to inform the surgeon that Tim had a blood-clotting problem. (SOF, ¶ 18.) Finally, the standard of care required Dr. Meredith to consult with the surgeon and — rather than deferring to him — to make a joint decision about how to address Tim’s coagulopathy. (SOF, ¶ 18.) Dr. Meredith’s duties involved the surgeon only partially.

Both PA Cooper and Dr. Meredith could have done their jobs in whole or in part, without relying on the surgeon. If either one of them had done so, Tim could have been spared the injuries from the hematoma and hemorrhagic stroke.

2. It is disputed whether the surgeon knew about the abnormal PT.

There is no contemporary evidence indicating that the surgeon knew about the abnormal PT. To the contrary: The hospital’s records include a copy of the PT results bearing a fax header suggesting the results were faxed to the surgeon’s practice group, but there is no copy of those lab results in the practice group’s own records. (SOF, ¶ 14.) Furthermore, neither the surgeon nor his Physician Assistant, Defendant Cooper, remember seeing that lab result. (SOF, ¶ 14.) Additionally, multiple physicians have testified that the abnormal lab results indicate an obvious, serious risk to the patient if an elective surgery goes forward without the coagulopathy being addressed. (SOF, ¶¶ 5-6.) Indeed, Dr. Koebbe testifies that the standard of care would require the surgeon to remedy the coagulopathy before proceeding with surgery, if indeed the surgeon knew about the coagulopathy. (SOF, ¶ 20.) From these circumstances the jury can conclude that the surgeon was not informed of Tim’s abnormal PT results.

Against this evidence, the moving Defendants cite zero contemporaneous evidence. Instead, they offer up the surgeon’s own testimony about 2-1/2 years after the events — testimony in which the surgeon admitted that he had no memory of seeing the lab results. The surgeon did testify, “I believe I probably did” see the abnormal PT results. (SeeMeredith brief at 3.) Of course the jury might believe the surgeon’s retrospective statement of belief about what he probably knew 2-1/2 years earlier. But the law does not compel the jury to believe any part of that testimony. The law does not compel the jury to accept that the statement of belief was honest. Nor does the law compel the jury to accept that the surgeon’s belief (if he really believed it) was correct. Certainly not against inconsistent evidence that, if he were aware of the potential coagulopathy he would have been required to address it. See, e.g., Ambling v. Miller, 295 Ga 758 (2014) (“The credibility of a witness is a question for the jury, not the [] court.”).

3. The surgeon’s negligence in disregarding the abnormal PT does not shield the other Defendants — earlier “links in the chain of incorrect decisions” — fromliability.

Under the Court of Appeals decisions noted above, it does not help the moving Defendants that their Co-Defendant, the surgeon, committed the same negligence the others did — ignoring Tim’s coagulopathy. The surgeon’s negligence just means these Defendants are all “links in the chain of incorrect decisions.” As the Court of Appeals has repeatedly held, the moving Defendants’ liability would be cut off “only if there intervened between the act and the injury a distinct, successive, unrelated, efficient cause of the injury.” The surgeon’s negligence in ignoring Tim’s coagulopathy is not unrelated to the moving Defendants’ negligence in ignoring Tim’s coagulopathy. It is identical. Furthermore, if the moving Defendants want to argue otherwise the related/unrelated issue, then as the Court of Appeals held in MCG Health, “Whether or not the actions and inactions of [these Defendants] were distinct and unrelated to the actions of the [other Defendant] is a question of fact best resolved by a jury.”

The Defendants collectively cite only a single case that even arguably points in a different direction; but that case does not help the Defense. Northside Hospital cites McQuaig v. McLaughlin, 211 Ga App 723 (1994). First, that case doesn’t help the Defense because in McQuaig it was undisputed that the later-in-the-chain defendant knew about the crucial information. Here, it is very much disputed whether the surgeon knew about Tim Jenkins’ abnormal PT results. Second, McQuaig doesn’t help the Defense because the later decisions in Knight, MCG Health, Walker, and Schrieversupersede McQuaig. To the extent McQuaig is in tension with the later cases, the later cases govern.

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PA Cooper, Dr. Meredith, and Northside Hospital’s pre-op nurses all failed in their respective duties to ensure that Tim’s abnormal PT results were addressed and rectified. They each acted as “links in the chain of incorrect decisions” that led to Tim’s injuries. The law holds them each liable. The law therefore does not authorize summary judgment for these three Defendants.

2. Amerson & Hughes — ignoring the hematoma: The jury can find that these Defendants acted as links in a chain of incorrect decisions that caused Tim’s injuries.

Dr. Mark Hughes and Dr. Richard Amerson contributed to Tim’s injuries by negligently causing delay in the evacuation of the hematoma that threatened to, and later did, compress Tim’s spinal cord.

Dr. Hughes is the ER physician responsible for Tim, when Tim came into the ER with the hematoma. Dr. Hughes ordered a CT scan to evaluate Tim’s neck. Dr. Amerson is the radiologist who interpreted the CT images.

Negligence

Dr. Amerson: The standard of care required Dr. Amerson to call Dr. Hughes with the results of the CT study. Dr. Amerson saw that the CT images indicated a potential hematoma in Tim’s neck, over the exposed spinal cord. Dr. Amerson understood that the hematoma threatened to compress Tim’s spinal cord. (SOF, ¶ 33.) In these circumstances, the standard of care did not permit Dr. Amerson simply to file a written report. Instead, Dr. Amerson was required to call Dr. Hughes to directly, immediately inform him of the potentially catastrophic emergency afflicting Tim Jenkins — namely, a hematoma that posed a risk of spinal cord compression. (SOF, ¶ 34.) Dr. Amerson did not do so. He just filed a written report and moved on. (SOF, ¶ 37.)

Dr. Hughes: The standard of care required Dr. Hughes to follow up on the CT he ordered, to learn of the radiology findings — namely, a hematoma that threatened to compress Tim’s spinal cord. (SOF, ¶ 38.) The standard of care then required Dr. Hughes immediately to inform the spine surgeon of those radiology findings. (SOF, ¶ 38.) Dr. Hughes did not do so. (SOF, ¶¶ 38-41.)

Causation

The Importance of Early Hematoma Evacuation

The spine surgeon who performed the neck surgery on Tim was the same surgeon who later evacuated the hematoma in Tim’s neck, the night Tim went to the ER. Tim came into the ER at approximately 1930 hours (7:30 PM). (SOF, ¶ 28.) The surgeon did not evacuate the hematoma until nearly 1:00 AM. (SOF, ¶ 46.)

The surgeon testifies that he had never seen a hematoma that big in his entire career:

Q. Have you ever had a patient with a postoperative hematoma as large as the hematoma that you observed in Tim from his CT taken on the, I believe the 20th?

A. I think it's fair to say that I have never seen a collection that big that was both hematoma and fluid in a patient until then like Tim.

(SOF, ¶ 33.)

The surgeon testifies that the hematoma did compress Tim’s spinal cord and did cause injuries:

Q. So there is no question in your mind that the neurological damage he suffered was caused by the expanding hematoma that was compressing his spinal cord; is that true?

A. Hematoma and fluid. Yes, sir, absolutely.

Q. Yeah.

A. No question.

(SOF, ¶ 47.)

The CT was performed at 2100 hours (9:00 PM), and Dr. Amerson filed his written report no later than 2141 hours. (SOF, ¶ 33.) The surgeon testifies that if he had learned the results of the CT, he would have come into the hospital immediately to evacuate the hematoma:

Q. Now, if you had been informed of this CT report at or around 9 p.m., you would have been at the hospital no later than 9:30, true?

A. Absolutely true. Yes, sir.

Q. And you would have had the patient under your knife opened up 20 minutes later?

A. Not 20 minutes, but certainly by, as I was speaking to you earlier as trying to think about this, instead of 10:30 — it would have been by 10:30 instead of 12:45. 10:30. Yes, by 10:30.

(SOF, ¶ 35.)

The surgeon testifies that more likely than not, if the hematoma had been evacuated two hours earlier — around 10:45 rather than 12:45 — Tim would have had a better outcome:

Q. Do you believe that if you had been notified earlier of Tim's status and had gotten to the hospital say two hours before you did or two and a half hours before you did, do you believe more likely than not, Tim would have had a better outcome than he has now?

A. Yes.

(SOF, ¶ 48.)

The surgeon testifies that he is frustrated that he was not told the CT was abnormal:

A. I don't have any criticism of Doctor Hughes ordering the CT. What I am frustrated with is that once it was abnormal, which clearly we know it was and we have it here and we've looked at it, that I was never told.

(SOF, ¶ 36.)

Dr. Amerson’s and Dr. Hughes’ Contributions to Delayed Hematoma Evacuation

Dr. Amerson admits that he did not call Dr. Hughes to notify him of the CT results. (SOF, ¶ 37.) Dr. Amerson’s written report noted the possibility that the hematoma could compress Tim’s spinal cord. (SOF, ¶ 33.)

Dr. Hughes did not read the written CT report. We know that because the hospital has an electronic medical record system that produces an “audit trail.” The audit trail identifies each person who creates or views a CT report. The audit trail does not show Dr. Hughes viewing the CT report at any time. (SOF, ¶ 38.)

Nor did anyone else in the Emergency Department view the CT report. The audit trail shows that no one outside the radiology department viewed the CT report — until after midnight, when the surgeon came in to evacuate the hematoma. (SOF, ¶ 38.) So there was not, for example, an ER nurse who diligently read the CT report and told Dr. Hughes what it said.

Furthermore, there is no time-stamped document that even hints at Dr. Hughes having any awareness of the CT results. (SOF, ¶¶ 39-40.) To the contrary: At 2202 hrs (10:02 PM), Dr. Hughes — through his scribe — entered an Admission Request for Tim in the Emergency Record. Dr. Hughes attested that the scribe’s entries were accurate and complete. The 2202 hrs Admission Request was silent on the CT results. The Admission Request said “assuming muscle spasm” — without a word about the abnormal CT findings.

Not having seen the CT results — or even having an ER nurse summarize the report for him — Dr. Hughes could not have called the surgeon to pass along the finding of a massive hematoma. (SOF, ¶ 41.)

Dr. Amerson contributed to delay in evacuating the hematoma, by failing in his duty to call Dr. Hughes to inform him of the CT findings. Dr. Hughes contributed to the delay by failing in his duty to follow up on the CT and then inform the surgeon of the abnormal results.

The Defense Arguments Fail

Dr. Amerson

Dr. Amerson’s lawyers argue that he escapes liability because it is undisputed that Dr. Hughes still knew about the CT results soon after Dr. Amerson interpreted the CT images. So, they argue, Dr. Amerson’s own negligence didn’t matter. Dr. Hughes’ negligence breaks the chain of causation as to these Defendants. The Defense argument fails for two reasons.

First, Dr. Amerson’s lawyers are wrong about the lack of dispute. It is very much disputed whether Dr. Hughes ever knew anything about the CT report until this lawsuit was filed. Dr. Amerson can cite only weak evidence that Dr. Hughes knew anything about the CT results — and no evidence that he knew the CT confirmed the presence of a massive hematoma. In the text above, we show the time-stamped Admission Request indicating that when he transferred Tim out of the ER, Dr. Hughes had no idea the CT had confirmed the presence of a massive hematoma over Tim’s exposed spinal cord. In response, Dr. Amerson points to a hand-written “Holding Order” with a handwritten note saying “hematoma vs. pseudomeningocele.” Dr. Hughes says the handwriting is his, and that he must have learned the word “pseudomeningocele” from the CT report. Maybe a nurse read the report to him, Dr. Hughes says. That’s the only evidence for the assertion that Dr. Hughes knew anything — anything at all — about the CT report.

The non-time-stamped, handwritten word “pseudomeningocele” might — barely — give Dr. Amerson an argument to make to the jury, but it falls miles short of rendering the issue undisputed. For starters, even accepting all Dr. Hughes’ testimony as both honest and accurate — which a jury need not do — it doesn’t mean Dr. Hughes knew the CT report confirmed the presence of a massive fluid collection over Tim’s exposed spinal cord. The possibility of a fluid collection like a hematoma or pseudomeningocele was obvious from the beginning. The CT report was alarming because it confirmed the presence of such a fluid collection. Even taking Dr. Hughes’ years-later testimony about the handwritten word “pseudomeningocele” at face value, it does not show that Dr. Hughes knew the CT results.

More importantly, though, the law does not compel the jury to believe Dr. Hughes’ years-later testimony at all. The law is skeptical and worldly-wise — enough to believe people sometimes fail in candor when their money and reputation are on the line. The law thus permits juries to disbelieve witnesses, to credit the contemporaneous computer-time-stamped documents over the later self-serving testimony about what-must-have-happened-though-I-don’t-remember-any-of-it. Dr. Hughes may be dishonest, or simply mistaken, about the import of the handwritten word “pseudomeningocele.”

It is very much disputed whether Dr. Hughes knew of the CT results. Dr. Amerson’s summary judgment argument fails.

Dr. Hughes

Dr. Hughes’ lawyers say there is no evidence that Tim would have been better off if Dr. Hughes had promptly called the surgeon with the abnormal CT results. But there is — from the surgeon himself. Again, the same testimony quoted above:

Q. Now, if you had been informed of this CT report at or around 9 p.m., you would have been at the hospital no later than 9:30, true?

A. Absolutely true. Yes, sir.

Q. And you would have had the patient under your knife opened up 20 minutes later?

A. Not 20 minutes, but certainly by, as I was speaking to you earlier as trying to think about this, instead of 10:30 — it would have been by 10:30 instead of 12:45. 10:30. Yes, by 10:30.

* * *

A. Yes.

* * *

I don't have any criticism of Doctor Hughes ordering the CT. What I am frustrated with is that once it was abnormal, which clearly we know it was and we have it here and we've looked at it, that I was never told.

(SOF, ¶¶ 35-36, 47-52.)

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The evidence permits the jury to find that each of Dr. Amerson and Dr. Hughes contributed to the delay in evacuating the hematoma over Tim’s exposed spinal cord, and thus contributed to Tim’s injuries. The law therefore does not authorize summary judgment for these two Defendants.

CONCLUSION

None of the Defendants seeks summary judgment on the issue of negligence. Each of the moving Defendants raises only the issue of causation. On that issue, as on negligence, the evidence permits the jury to find each Defendant liable. The law does not authorize summary judgment for any of the Defendants. Tim Jenkins asks the Court to deny all motions for summary judgment.

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] All citations and quotations are cleaned up by omitting internal citations and editorial marks. Unless otherwise stated, all emphasis is added.

[2] 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.

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