Turner v. Med. Univ. of S.C.

• Citation: 846 S.E.2d 1,430 S.C. 569
• Decision Date: 06 May 2020
• Docket Number: Opinion No. 5723,Appellate Case No. 2016-001986
• Court: Court of Appeals of South Carolina
• Parties: Shon TURNER, as Personal Representative of the Estate of Charles Mikell, deceased, Appellant, v. MEDICAL UNIVERSITY OF SOUTH CAROLINA, Respondent.

430 S.C. 569

846 S.E.2d 1

Shon TURNER, as Personal Representative of the Estate of Charles Mikell, deceased, Appellant,

v.MEDICAL UNIVERSITY OF SOUTH CAROLINA, Respondent.

Appellate Case No. 2016-001986

Opinion No. 5723

Court of Appeals of South Carolina.

Heard February 13, 2019

Filed May 6, 2020

Rehearing Denied August 13, 2020

Robert B. Ransom, of Leventis & Ransom, of Columbia; and Alex Nicholas Apostolou, of Alex N. Apostolou, LLC, of North Charleston, both for Appellant.

M. Dawes Cooke, Jr. and John William Fletcher, of Barnwell Whaley Patterson & Helms, LLC, of Charleston, for Respondent.

WILLIAMS, J.:

In this medical malpractice action, Shon Turner, as Personal Representative of the Estate of Charles Mikell, deceased, appeals the circuit court's (1) grant of a partial directed verdict in favor of the Medical University of South Carolina (MUSC) on Turner's physician negligence claim; (2) finding Turner's negligent supervision claim sounded in ordinary negligence and that ordinary negligence was not pled; (3) refusal to instruct the jury that Turner's physician negligence claim had been removed from consideration; (4) admitting Dr. Michael Zile's expert opinion and refusal to strike his testimony; (5) admitting medical records; and (6) admitting a blank copy of an MUSC Mayday record and testimony about Mayday records. We affirm in part and reverse and remand in part.

FACTS/PROCEDURAL HISTORY

In 2003, Charles Mikell, who had chronic heart failure

, became a patient at MUSC. On October 1, 2010, at the age of forty-nine, Mikell underwent a colonoscopy at MUSC. Dr. Eric Nelson, an attending anesthesiologist, and Donna Embrey (Nurse Embrey), an attending certified nurse anesthetist (CRNA), administered anesthesia to Mikell during his colonoscopy. On the day of Mikell's procedure, Dr. Nelson was supervising Nurse Embrey and one other CRNA.

At the time of the colonoscopy

, Mikell was overweight and suffered from several preexisting conditions, including sleep apnea, chronic heart failure, an elevated heart rate, chronic kidney disease, hypertension, diabetes, a genetic blood disorder, gallbladder disease, and high cholesterol. Before the colonoscopy, Dr. Nelson and Nurse Embrey developed a medical plan for administering anesthesia to Mikell based on his known health problems.

During the colonoscopy

, Mikell was monitored by sensors that were connected to monitors that displayed his vital signs, such as his blood oxygen saturation levels (saturation levels), heart rate, and blood pressure. The monitors were connected to an electronic medical record software created by Picis (Picis). The Picis anesthesia record (the Picis Record) showed real time variables plotted on a data graph that could be printed in various time increments. The Picis Record also contained a narrative with information that was entered by individual anesthesia providers. Picis had an audit trail function that showed a username, date, and time stamp each time the record was accessed to create, modify, or delete an entry.

Nurse Embrey testified that at the start of Mikell's colonoscopy

, the monitors were displaying Mikell's vital signs but Picis did not capture and record data for several minutes. Nurse Embrey stated she angled the computer and keyboard so she could monitor Mikell while she sent two messages and paged an information technology specialist (IT specialist) in an attempt to fix Picis. After she paged the IT specialist, but before Picis was fixed, Nurse Embrey administered an anesthetic to Mikell. Dr. Nelson testified Mikell's medical chart indicated the anesthetic was administered around 7:41 A.M., and Nurse Embrey testified Dr. Nelson was not in the room when the anesthetic was administered. Picis did not begin to record Mikell's vital signs until 7:48 A.M., but Dr. Nelson and Dr. Scott Reeves, the Chairman of the Department of Anesthesia at MUSC, testified even if Picis was not working properly, medical providers could create a paper chart.

The following table shows Mikell's saturation levels as captured in the Picis Record from 7:48 A.M. to 8:00 A.M.:

Nurse Embrey testified there were problems with Mikell's saturation levels during the colonoscopy

, so she reduced the anesthetic at 7:53 A.M., turned Mikell's body to help manage his airway, and told a nurse to call Dr. Nelson, who arrived almost immediately. Mikell had low saturation levels, his heart rate slowed, his heart's electrical system stopped contracting normally, and he went into cardiac arrest. Mikell was intubated and defibrillated, and he regained a pulse. Mikell was put into a medically induced coma; experienced hypothermia and kidney failure ; and received renal dialysis, a tracheotomy, and mechanical ventilation. He was hospitalized for fifty days, and he underwent physical therapy, rehabilitation, and home health care. Following his hospitalization, Mikell discontinued certain medications he took before the colonoscopy, including medications for an arrhythmia and anticlotting. On January 2, 2011, Mikell died.

Turner, as personal representative of Mikell's estate, filed this action against MUSC for medical malpractice, survivorship, and wrongful death and named MUSC and "its actual and apparent agents, servants[,] and employees" as parties to the action.

The Picis Record showed an entry from Dr. Nelson stating he was present when the anesthetic was administered at 7:48 A.M. An entry from Nurse Embrey indicated Dr. Nelson left the room at 7:51 A.M., but the Picis Record showed Nurse Embrey initially entered his departure time as 7:50 A.M. Dr. Nelson testified he went across the hall, where he could have been reached by pager or by someone yelling through the door. Dr. Nelson stated he would not have left the room if Mikell's saturation levels were not in the nineties because he would not leave the room if he thought a patient was "teetering on the edge." Dr. Nelson indicated you would intervene in a situation when the saturation levels "dipped to [eighty], and then he dipped to [seventy-three]." When asked generally about life threatening saturation levels, Nurse Embrey testified that if the saturation level was less than ninety, there would be concerns and the method of care would be changed. Nurse Embrey stated that at 7:49 A.M., Dr. Nelson entered information at the Picis workstation. When asked if entering information at that time would be appropriate while a patient's saturation levels were seventy-five, Nurse Embrey indicated it was not appropriate, and if she or Dr. Nelson would have noticed the saturation level was that low, they would have acted differently.

The Picis Record printed on the day of the procedure showed Dr. Nelson made an entry at 8:00 A.M. that stated when he returned to Mikell's room, Mikell had low saturation levels and he had an abnormal heart rhythm and no pulse, so a Mayday¹ team was called. At trial, Dr. Nelson testified that when he came back into the room, Nurse Embrey was not using a respirator bag to deliver air to Mikell, but he indicated she began to do so when he turned Mikell and began chest compressions. The Picis Record printed the next day had the same entry, but Nurse Embrey's initials were linked to the narrative, and the narrative indicated Dr. Nelson came into the room at 7:56 A.M. At trial, Nurse Embrey testified she changed the time of Dr. Nelson's entry to make sure the times were accurate because charting is not always done contemporaneously with patient care in critical situations.

At trial, Dr. William Andrew Kofke was qualified as an expert in the areas of anesthesia

and critical care. Dr. Kofke testified an anesthesiologist can properly supervise up to four CRNAs at one time and that an attending physician should be within a two-minute range from an operating room. He also testified that when Mikell's saturation levels dropped to the eighties, maneuvers should have been performed to lift the chin, open the mouth, and support the tongue to prevent a further drop in his saturation levels. He stated minutes and seconds are important in responding to a patient under cardiac arrest

. Dr. Kofke indicated that when the saturation levels of a patient who is under anesthesia drop, an anesthesiologist can decide to give a higher oxygen concentration, employ a maneuver to lift the chin and jaw to open the airway, and then if that does not work, put in an oral airway, utilize a laryngeal mask, or insert a breathing tube. He opined Dr. Nelson breached the standard of care because Mikell was a tenuous patient and Dr. Nelson did not give him the necessary attention when he made only a brief stop in Mikell's room and left the room when Mikell had low saturation levels. Dr. Kofke additionally opined Nurse Embrey breached the standard of care because she did not adequately focus on Mikell because she was distracted at that time by her efforts to fix Picis. Dr. Kofke explained that if Nurse Embrey or Dr. Nelson had met the standard of care, Mikell would not have suffered cardiac arrest. He opined that if they were both in the room, they would have been able to make sure Mikell's airway was clear. He testified he believed to a reasonable degree of medical certainty that Mikell's cardiac arrest was the cause of his death.

MUSC's policy required a Mayday to be documented using a Mayday record. The Mayday record from Mikell's procedure (Mikell's Mayday Record) was lost or destroyed, and at trial, MUSC introduced a blank copy of a Mayday record (the Blank Mayday Record) for the purpose of showing the type of record MUSC routinely uses for Mayday events. The circuit court admitted the Blank Mayday Record over Turner's objection.

Sheila Scarbrough, a critical interventions manager at MUSC at the time of Mikell's colonoscopy

, testified the Blank Mayday Record was representative of the version of the Mayday records used at the time of Mikell's colonoscopy. She testified Mayday records generally do not include information about what occurred prior to the...