Adventist Healthcare, Inc. v. Mattingly

• Decision Date: 29 January 2020
• Docket Number: No. 2104, Sept. Term, 2018,2104, Sept. Term, 2018
• Citation: 244 Md.App. 259,223 A.3d 1025
• Parties: ADVENTIST HEALTHCARE, INC., et al. v. Susan M. MATTINGLY
• Court: Court of Special Appeals of Maryland

244 Md.App. 259

223 A.3d 1025

ADVENTIST HEALTHCARE, INC., et al.

v.Susan M. MATTINGLY

No. 2104, Sept. Term, 2018

Court of Special Appeals of Maryland.

January 29, 2020

Argued by: Anthony J. Breshi (John T. Sly, Waranch & Brown, LLC, on the brief), Lutherville, MD, for Appellant.

Argued by: Robert R. Michael (Andrew J. Hall, Shadoan, Michael & Wells, LLP, on the brief), Rockville, MD, for Appellee

Panel: Berger, Arthur, Patrick L. Woodward (Senior Judge, Specially Assigned), JJ.

Berger, J.

This is an appeal of a jury verdict in a medical malpractice case from the Circuit Court of Prince George's County. James Thomas Mattingly, Jr., ("Mr. Mattingly") died on August 5, 2014, five days after a surgical procedure to reverse his colostomy

. The surgery was performed by Dr. Sarabjit S. Anand, M.D. ("Dr. Anand") at Washington Adventist Hospital in Takoma Park, Maryland on July 31, 2014. Mr. Mattingly remained hospitalized following the July 31, 2014 surgery until his death.

Mr. Mattingly's mother, Susan Mattingly ("Ms. Mattingly"), filed the claim that gave rise to this appeal, both individually and as Personal Representative of her son's estate, against Dr. Anand and Adventist Healthcare, Inc. d/b/a Washington Adventist Hospital ("WAH") (collectively, the "Appellants"). Ms. Mattingly brought both wrongful death and survival claims. Ms. Mattingly alleged, inter alia , that Dr. Anand breached the standard of care by failing to timely diagnose and treat a bowel leak after the surgery, which ultimately caused infection and sepsis, resulting in Mr. Mattingly's death.¹ Ms. Mattingly further claimed that a nurse employed by WAH, Adebusola Matilukuro ("Nurse Matilukuro") was negligent for failing to escalate the issue pursuant to hospital policy after Dr. Anand failed to respond to multiple telephone calls on the morning of August 5, 2014, while Mr. Mattingly became progressively more ill.

The case proceeded to trial and the jury returned a verdict in favor of Ms. Mattingly and against both WAH and Dr. Anand. Both WAH and Dr. Anand noted timely appeals.

Both WAH and Dr. Anand raise appellate issues relating to alleged spoliation of evidence by Ms. Mattingly.² Specifically, the Appellants assert that Ms. Mattingly engaged in spoliation of evidence by having her son's remains cremated after obtaining a private autopsy. The Appellants present the following appellate issues:

I. Whether the circuit court erred by denying the Appellants' Motion for Summary Judgment and Motions for Judgment on the basis of spoliation of evidence.

II. Whether the circuit court erred by denying the Appellants' request for a jury instruction regarding spoliation of evidence.

In addition, WAH raises one individual appellate issue and joins other arguments made by Dr. Anand. WAH's individual appellate issue is:

III. Whether the circuit court erred by failing to grant WAH's motion for judgment on the basis that Ms. Mattingly failed to present expert testimony on the issue of whether Nurse Matilukuro's breach of the standard of care caused Mr. Mattingly's death.

We shall hold that the cremation of Mr. Mattingly's remains did not constitute spoliation. Accordingly, we shall hold that the circuit court appropriately denied the Appellants' motion for summary judgment and motions for judgment on this issue. We shall further hold that the circuit court did not abuse its discretion by declining to propound a jury instruction on spoliation. In addition, we shall hold that the circuit court did not err by denying WAH's motion for judgment on the causation issue. Accordingly, we shall affirm.

FACTS AND PROCEEDINGS

In March 2014, Mr. Mattingly presented at WAH with complaints of abdominal pain. He was diagnosed with diverticulitis

and a perforated colon.³ On March 11, 2014, Mr. Mattingly had a sigmoid colectomy and colostomy.⁴ On July 31, 2014, Mr. Mattingly had a surgical procedure to reverse the colostomy

. During the colostomy reversal surgery, the two disconnected sections of Mr. Mattingly's colon were rejoined by sewing them back together, which is known as an anastomosis.

A risk of colostomy

reversal surgery is that a patient can develop a leak at the anastomosis, known as an anastomotic leak. The likelihood of an anastomotic leak is between three and eight percent. Because of this risk, patients are observed carefully in the hospital for a period of time following the surgery. During the days following the colostomy reversal surgery, Mr. Mattingly appeared to be progressing normally in his recovery. Dr. Anand was involved with Mr. Mattingly's post-operative care and saw Mr. Mattingly several times while he remained in the medical-surgical unit at WAH.

During the late night and early morning hours of August 4-5, 2014, Mr. Mattingly's condition deteriorated. Mr. Mattingly informed nurses overnight that he was in pain. At approximately 5:30 a.m. on August 5, Mr. Mattingly telephoned his mother, Ms. Mattingly. Mr. Mattingly was very upset and was "screaming" and "telling [her] he was dying." Mr. Mattingly asked his mother to get to the hospital as quickly as possible.

Ms. Mattingly arrived at WAH at approximately 6:45 a.m. and went straight to Mr. Mattingly's room. She observed him "panting" and "breathing really heavy." At one point, Mr. Mattingly poured a pitcher of ice water over his head and began vomiting bile. Ms. Mattingly reported Mr. Mattingly's distress to the nurses, and the nurses attempted to reassure Ms. Mattingly and calm her down.

At approximately 7:00 a.m., Nurse Matilukuro took over the care of Mr. Mattingly as his "day shift" nurse. She was informed by the overnight nurse that Mr. Mattingly had been complaining of pain. Nurse Matilukuro evaluated Mr. Mattingly and observed that his stomach was distended and tender to the touch. This did "not look[ ] normal" for a post-operative patient, so Nurse Matilukuro telephoned Dr. Anand. Nurse Matilukuro informed Dr. Anand that Mr. Mattingly's abdomen was distended and tender to the touch and that Mr. Mattingly was experiencing pain. She further informed Dr. Anand that Mr. Mattingly's abdomen was firm and that he had complained of shortness of breath. Dr. Anand ordered a STAT x-ray for Mr. Mattingly and told Nurse Matilukuro that Mr. Mattingly should have nothing by mouth except for ice chips.⁵

Dr. Anand testified at trial about Nurse Matilukuro's approximately 7:00 a.m. telephone call. He recalled being told of Mr. Mattingly's abdominal distension and pain. Dr. Anand found the distension concerning. Dr. Anand had seen Mr. Mattingly the prior evening and his symptoms of pain and distension were, in Dr. Anand's words, a "sudden change" from the prior day. Dr. Anand was concerned that Mr. Mattingly could have some type of obstruction or other bowel issue. Dr. Anand explained that various issues could cause Mr. Mattingly's symptoms, including "worsening ileus, stomach distension, small bowel distension and other things related to an anastomosis." Dr. Anand explained that the "worst first" possibility of the potential diagnoses was a leaking anastomosis

that could constitute a medical emergency. Dr. Anand acknowledged that a leaking anastomosis would allow bacteria to leak into the peritoneal cavity, which causes sepsis and potentially death if untreated.

Nurse Matilukuro entered the order for a STAT abdominal x-ray

at approximately 7:30 a.m. At approximately 8:00 a.m., Nurse Matilukuro telephoned Dr. Anand again. She asked Dr. Anand when he would be coming in and advised Dr. Anand that Ms. Mattingly was upset and asking for Dr. Anand. Nurse Matilukuro further advised Dr. Anand that Mr. Mattingly had not been taken for his x-ray yet. Dr. Anand told her that "he was coming" and "on the way." At 8:05 a.m., Mr. Mattingly was showing abnormal vital signs, including a high respiratory rate, labored breathing, elevated body temperature, high peripheral pulse rate, and low blood pressure.

Nurse Matilukuro placed another telephone call to Dr. Anand at approximately 9:00 a.m. Dr. Anand told Nurse Matilukuro again that he was on his way. Nurse Matilukuro transferred the call to Ms. Mattingly so that she could speak directly to Dr. Anand. Ms. Mattingly told Dr. Anand about Mr. Mattingly's symptoms, including that Mr. Mattingly was having trouble breathing, panting, and suffering from "a lot of pain." Ms. Mattingly told Dr. Anand that Mr. Mattingly had vomited and that his blood pressure was "very low."⁶ Ms. Mattingly was "really concerned" because "[t]hings kept getting worse and worse" and she "kn[e]w low blood pressure is not good." Dr. Anand told Ms. Mattingly, "I will be there at 10:00 to see you."

Mr. Mattingly was taken for his x-ray at approximately 9:20 a.m. When he returned to his room approximately thirty minutes later, he was "in bad shape" and "could hardly breathe." Mr. Mattingly sat in the chair in his room while Ms. Mattingly remained with him. Mr. Mattingly was unable to lie down because it caused him additional difficulty breathing. While Mr. Mattingly and his mother were talking, Ms. Mattingly saw Mr. Mattingly stop breathing. Mr. Mattingly began foaming at the mouth and his eyes rolled back. Ms. Mattingly called for the nurse. Nurse Matilukuro came into the room and observed that Mr. Mattingly was unconscious. At 10:49 a.m., the Rapid Response Team was called and a Code Blue was activated. The code team quickly came into Mr. Mattingly's room and attempted to revive Mr. Mattingly.

A hospitalist physician telephoned Dr. Anand, who had still not yet arrived at the hospital, to inform him that Mr. Mattingly had "coded."⁷ The same hospitalist physician had seen Mr. Mattingly in the hallway when he was waiting for his x-ray and had observed Mr. Mattingly in apparent distress, which the hospitalist found concerning. Dr. Anand told the hospitalist that he was on his way. Mr. Mattingly could not be revived and was pronounced dead at 11:09 a.m. Dr. Anand did not arrive at the hospital until after Mr. Mattingly had died....