The Medical University of South Carolina will have to pay sanctions of more than $87,000 in attorney’s fees and costs for a “pattern of discovery abuse,” according to a Charleston County circuit court.
In the Sept. 28 order in a medical malpractice case regarding a man who died after a colonoscopy, Judge J.C. Nicholson Jr. wrote that the hospital provided to the plaintiff information that later proved to be false, and only provided some of that information begrudgingly, months and years outside state Rules of Civil Procedure deadlines.
The case, Shon Turner v. The Medical University of South Carolina, was filed in 2012 after 49-year-old Charles Mikell underwent a routine colonoscopy at MUSC in Oct. 2010 and suffered cardiac arrest. Mikell was rescued from the cardiac arrest, but spent six weeks at MUSC and remained under continuous medical care until his death on Jan. 2, 2011.
The plaintiff alleged that the cardiac arrest caused a hypoxic brain injury that led to Mikell’s death. A plaintiff’s attorney, Rob Ransom of Leventis & Ransom in Columbia, believes the hospital was negligent.
“In my view, my client’s cardiac arrest was caused by the failure of the anesthesia team to check the anesthesia equipment to make sure it was functioning properly before my client was knocked out, so that their attention was diverted to fixing an equipment malfunction at a time when my client’s blood oxygen saturation values were dropping off a cliff,” Ransom said.
But on April 16, after a seven-day trial, the jury found in favor of the hospital. The court denied Turner’s motion for a new trial. The plaintiff has appealed that denial.
But in his sanctions order, Nicholson said that the hospital caused the plaintiff “extreme difficulties” in obtaining accurate and timely information during the discovery process.
“The Medical University’s conduct resulted in the Plaintiff expending enormous time and resources overcoming a variety of unfair roadblocks to the timely receipt of properly discoverable information,” Nicholson wrote.
Undocumented discrepancies
Mikell received intravenous anesthesia during the procedure and according to the court order, his blood oxygen saturation dipped to dangerous levels several times before he went into cardiac arrest.
After Mikell’s death, Ransom noticed several discrepancies on the medical chart. First, no two printouts of several anesthesia records were identical. Second, eight minutes of blood oxygen saturation data was missing from all the anesthesia record printouts, which included multiple blank boxes that should have contained vital statistics data.
Lastly, a procedure note for the colonoscopy specifically referred to “code documentation,” but no code sheet, “Mayday record” or other code documentation was contained anywhere in Mikell’s medical chart.
To investigate the discrepancies, the plaintiff filed a “series of written discovery requests,” the court said, including interrogatories, requests for production, and requests for admission. He also deposed several of Mikell’s care providers and the hospital was asked to provide a designee to address specific topics pursuant to Rule 30(b)(6) of the SC Rules of Procedure.
“By the time these disclosures were made, over thirty witnesses had been deposed,” Nichols wrote. “Additional delinquent disclosures came in December of 2015, only after the Motions for Sanction had been filed and the first hearing held. One significant disclosure — concerning the Mayday record — did not come until February 22, 2016 when the Plaintiff re-deposed one of the key witnesses in the case.”
“The missing Mayday record and the alterations to the anesthesia record prevented me from accurately recreating exactly what happened,” Ransom said.
A Mayday record is a written record of cardiac arrest, required by the hospital’s own policy.
Hospital personnel testified that they could not specifically recall a Mayday record being created for Mikell, but could not say why one would not have been created. The hospital itself took the position that there was no Mayday record.
Missing report
In November 2014, a hospital designee, a physician member of the anesthesia faculty, testified that there was no Mayday record because the cardiac arrest happened in the digestive disease center, though no evidence showed that the area was exempt from policy.
But in August 2015, a new designee testified that there was in fact a Mayday record for Mikell, and that it had been faxed to a risk management office where it was used to make entries in the American Heart Association database and then shredded.
“In short, the new designee repudiated virtually everything the first designee had said,” Nichols wrote.
The mystery Mayday report took another “improbable turn” six months later, Nichols added, when a previously deposed nurse anesthetist — at the time advised not to answer certain questions about a peer review investigation of the cardiac arrest — who could not then recall a Mayday record suddenly remembered, testifying that she had removed the record from Mikell’s chart, used it as a reference “to ‘complete’ the narrative portion of the anesthesia record and to change one of the anesthesiologist’s entries,” and returned it to his bedside.
Never to be seen again, Nicholson noted.
The court rejected MUSC’s contention that it had no knowledge of Mikell’s Mayday record.
Ransom said he believes that the hospital provided allegedly false testimony to cover up three “bad facts”: that there was an equipment malfunction during Mikell’s colonoscopy, that there were multiple copies of the Mayday record lost or destroyed, and that the nurse anesthetist changed the anesthesia record “to make it look like nothing was done wrong.”
“If that isn’t sanctionable misconduct, nothing is,” he said. I’ve been practicing law for 30 years and I’ve never seen any conduct as bad as this.”
‘Unjustifiable and inexcusable’
The hospital also allegedly provided the American Heart Association database to the plaintiff 29 months after it was requested, and did so in an unreadable format. MUSC refused, the order says, to provide a readable version, saying that it would reveal protected patient information. It relented, however, after Nicholson demanded an answer for the “inexcusable recalcitrance.”
Additionally, the nurse anesthetist testified in 2014 that she wasn’t aware of any problems concerning Mikell’s blood oxygen saturation levels. But a software “glitch” that led to eight minutes not being recorded “indisputably affected” the recording of the data, which the nurse tried to correct by texting and calling an information technologist.
“Whether Mr. Mikell’s condition remained stable while these texts and phone calls were being exchanged was one of the most hotly contested issues in the case,” Nicholson wrote.
Had the nurse testified accurately, the court held, the plaintiff, seeking information about Mikell’s missing vital signs information, would have known about the “glitch” in August 2014 rather than late 2015.
“The Medical University’s conduct was unjustifiable and inexcusable,” Nicholson wrote.
Despite finding for MUSC, the court ordered the hospital to pay a total of $71,730 in attorney’s fees to Ransom; $5,675 to Alex Apostolou of North Charleston; and costs of $10,372.63.
An attorney for the hospital, M. Dawes Cooke of Barnwell, Whaley, Patterson & Helms in Charleston, said that the judge worked hard to reach a fair conclusion, but that “there is certainly room for a difference of opinion, which can only be resolved on appeal.”
“The discovery process was long and arduous, involving review and production of massive amounts of records and computer data,” Cooke said. “However, because the case is still pending before the court, it would be inappropriate to comment on the merits at this time.”
Cooke added that MUSC hasn’t determined whether it will appeal the sanctions order.
“If my appeal succeeds,” Ransom said, “I get a new trial.”
Follow Heath Hamacher on Twitter @SCLWHamacher