Pugh v. Cmty. Health Sys.
| Decision Date | 10 May 2023 |
| Docket Number | CIVIL 5:20-cv-00630-JMG |
| Parties | ASHLEY PUGH, et al., Plaintiffs, v. COMMUNITY HEALTH SYSTEMS, INC., et al., Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Plaintiffs Ashley Pugh and Daniel Pugh, individually and as parents and guardians of Minor-Plaintiff Sean Pugh bring medical malpractice and negligence claims against Northampton Hospital Company, LLC d/b/a/ Easton Hospital (“Easton Hospital”); Northampton Clinic Company, LLC d/b/a Easton Area Obstetrics & Gynecology Associates (“EAOG”); and Dr. Douha Sabouni, M.D See Am. Compl., ECF No. 80. Plaintiffs allege Defendants committed medical negligence during Mrs Pugh's delivery of her son, Sean Pugh. As a result of Defendants' negligence, Plaintiffs allege Sean suffers various injuries, including autism. Before the Court is two Daubert motions to preclude Plaintiffs' expert opinion concerning the general and specific causes of Sean's autism, and relatedly, one summary judgment opinion on causation. In addition to filing her own Daubert motion, Defendant Douha Sabouni, M.D., moves to join and/or adopt and incorporate by reference Defendant Easton Hospital and Defendant EAOG's Daubert and summary judgment motion and related supplemental brief in support of precluding Plaintiffs' autism causation opinion and granting summary judgment. For the following reasons, Defendant Dr. Sabouni's two motions to join and/or adopt and incorporate by reference will be granted Dr. Sabouni's Daubert motion to preclude Plaintiffs' expert opinion concerning the general and specific causes of Sean's autism will be granted; and Defendants Easton Hospital and EAOG's Daubert and summary judgment motion will be granted in part concerning the Daubert motion to preclude Plantiffs' autism causation opinion. The Court defers from granting Defendants Easton Hospital and EAOG's summary judgment motion on causation pending supplemental briefing from the Parties.
Plaintiffs Ashley Pugh and Daniel Pugh, individually and as parents and guardians of Sean Pugh bring medical malpractice and negligence claims against Defendants Easton Hospital, EAOG, and Dr. Sabouni. See Am. Compl., ECF No. 80. Plaintiffs allege Defendants acted negligently when providing services to Mrs. Pugh during her delivery of Sean.
In late 2013, Mrs. Pugh was twenty-six years old and pregnant with her first child. ECF No 80 ¶19. Mrs. Pugh attended EAOG for routine check-ups, including an ultrasound. Id. ¶¶19-20. On January 7, 2014, while Mrs. Pugh was thirty-two weeks and five days into gestation, the ultrasound indicated Mrs. Pugh's baby was normal with a fetal heart rate (FHR) of 141 beats per minute (BPM). Id. ¶¶21-22.
On January 22, 2014, Mrs. Pugh went to Easton Hospital after experiencing a partial rupture of membranes and intermittent leaking. Id. ¶23. Mrs. Pugh was admitted to Easton Hospital and began labor. Id. ¶24. Throughout the day, Mrs. Pugh was tended to while in labor. Id. ¶¶28-36. Defendant Dr. Sabouni began caring for Mrs. Pugh. Id. ¶36. At 7:00 p.m., Plaintiffs allege, Dr. Sabouni, “stated that she would let Mrs. Pugh ‘continue to push until 9:00 p.m.' and ‘then do a c-section.'” Id. ¶39. Defendants noted Mrs. Pugh became increasingly tired. Id. ¶¶41-47. At 9:00 p.m., Mrs. Pugh alleges she asked for the c-section Dr. Sabouni referenced earlier and Dr. Sabouni responded, “You're close, you can get him out.” Id. ¶ 48.
Plaintiffs allege an Obstetrics (OB) Provider Progress Note at 9:30 p.m. showed the following message: “Impression: non reassuring fetal heart rate.” Id. ¶53. The same note provides: Id. ¶54. Dr. Sabouni called for a cesarean delivery (c-section) and directed Mrs. Pugh to continue pushing until the operating room (“OR”) team assembled. Id. ¶55. The detectable FHR increased to 175, with baseline changes of “tachycardia”.[1]By 10:30 p.m., no c-section team had assembled to deliver Mrs. Pugh's baby. See id. ¶¶61-62. The FHR had decreased to a baseline rate of 165. Id. ¶62. Mrs. Pugh continued to push. Id. ¶62. At 10:42 p.m., the baby's FHR had decreased to a baseline rate of 145. Id. ¶63. Baby Sean was delivered at 10:43 p.m. at thirty-five weeks. Id. ¶64. Baby Sean was born at a weight of five pounds and ten ounces; he was in “profound stress; his body was limp and without a heart rate; he had no first gasp or respiration; and he maintained Apgar scores of “0” during his first one to ten minutes of life.[2]Sean's heart rate went undetected until he was twenty minutes of age. Id. ¶70. A neurologist then explained to Mr. and Mrs. Pugh “Sean had suffered fetal acidemia and hypoxemia” and would be transferred to Lehigh Valley Hospital.[3]
Plaintiffs further allege “[a]n MRI five days after Sean's birth showed brain damage, and liver [and] kidney damage.” ECF No. 80 ¶76. And a later “MRI showed ‘hypoxic ischemic injury.'” Id. ¶78. Hypoxic ischemic injury such as hypoxic ischemic encephalopathy (HIE) “is a type of brain dysfunction (brain injury) that occurs when the brain experiences a decrease in oxygen or blood flow” and “can occur before birth, during labor and delivery or after birth.”[4] Sean spent many weeks in various hospitals. ECF No. 80 ¶77, 80. On March 12, 2014, Sean was discharged “with a diagnosis of ‘severe perinatal asphyxia [or the failure to establish breathing at birth] with multisystem involvement' and ‘global developmental delay.'”[5] Plaintiffs allege Defendants acted negligently and/or carelessly while providing services to Mrs. Pugh during her delivery, which led to Sean Pugh's resulting injuries, including, inter alia: “fetal acidemia; hypoxemia; permanent developmental delay and cognitive impairment; speech and behavioral pathology; autism; physical growth impairment; cardiac murmur; dilated aortic root; physical and emotional pain and suffering; aggravation and/or exacerbation of all known and unknown pre-existing medical conditions; and a severe shock to his entire nervous system.” ECF No. 80 ¶87. Notably to the present motion, Plaintiffs allege Defendants actions leading up to and during Sean's birth directly and proximately caused Sean's autism. Id.
Plaintiffs and Defendants' expert physicians agree Sean has been diagnosed with autism/autism spectrum disorder (“ASD”). [6]And Defendants' experts acknowledge Sean's various conditions upon birth, including Sean's medical records of a HIE diagnosis, ECF No. 132-1, Enns Dep. Tr. 19: 1-15, 20:6-14, ECF No 132-2, Volkmar Dep. Tr. 32:3-10; Sean's diagnosis of “an extremely high risk for severe neuro-developmental delays,” ECF No. 132-1, Enns Dep. Tr. at 22:13-22; and Sean's Apgar scores, limp appearance, and undetectable heart rate at and following birth, id. at 9:10-22, ECF No. 132-2, Volkmar Dep. Tr. 31:5-24. Moreover, Defendants' expert agrees Sean has been documented to have intellectual disabilities. ECF No. 132-1, Enns Dep. Tr., 27:13-15.
Defendants Easton Hospital and EAOG move to preclude Plaintiffs' causation testimony regarding the alleged cause of Sean Pugh's autism under Daubert. See generally ECF No. 125. More specifically, Easton Hospital and EAOG move to preclude Plaintiff's expert on causation, Sarah Mulkey, M.D., Ph.D because Dr. Mulkey “is the only Plaintiffs' expert that opines on causation in this matter.”[7]Defendant Dr. Sabouni also moves to preclude Plaintiffs' expert from offering any causation testimony regarding the alleged cause of Sean Pugh's Autism.[8]Like Easton Hospital and EAOG's Daubert motion, Dr. Sabouni's moves to preclude Dr. Mulkey's causation testimony as Plaintiffs' “sole causation expert.”[9]Defendants do not contest Dr. Mulkey's qualifications as an expert.[10]
Dr. Mulkey has provided one expert report and two supplement reports in total. In Dr. Mulkey's September 29, 2021 expert report, Dr. Mulkey opines, inter alia, Sean experienced perinatal hypoxia-ischemia encephalopathy (HIE) at birth, which causes his “abnormal neurodevelopmental outcome of autism.” ECF No. 125-9 at 10. Dr. Mulkey further provides “Sean's significant presentation of severe neonatal encephalopathy and the absence of more severe placental findings[] . . . [supports a finding] the cause of his autism outcome is the perinatal hypoxia-ischemia, although a contribution from the prolonged rupture of membranes is possible, but is not a main cause.”[11]So, “[h]ad [Sean] avoided HIE, his outcome would be normal.” Id.
Dr. Mulkey provided she reviewed Sean's medical records and relevant medical literature, as well as she utilized her “education, experience, and general knowledge of the literature and [her] field of medicine” to form an opinion on the present action. Id. More specifically, Dr. Mulkey cites two studies in her expert report as “[a] sample of the reported increased risk for autism associated with HIE” in medical literature. Id. First, “. . . a nested case-control study, [] children with perinatal ischemic-hypoxic conditions had an increased odds of developing autism spectrum disorders.”[12]And second, “. . . a population-based study of moderate to severe neonatal encephalopathy, [] children with neonatal encephalopathy were 5.9 times more likely to be diagnoses with autism than controls.”[13]
Dr Mulkey expanded on her causation opinions in two supplemental expert reports. First, Dr. Mulkey's February 4, 2022 supplemental report analyzed Sean's January 28, 2022 brain MRI. ECF No. 125-10...
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