Welch v. Epstein

Citation536 S.E.2d 408,342 S.C. 279
Decision Date31 July 2000
Docket NumberNo. 3235.,3235.
PartiesKimberly Johnson WELCH, as Personal Representative of the Estate of Marshall O. Welch, Jr., Respondent/Appellant, v. Franklin M. EPSTEIN, M.D.; Martin Greenberg, M.D.; and Southern Neurologic Institute, P.C., Defendants, of whom Franklin M. Epstein, M.D. and Southern Neurologic Institute, P.C. are Appellants/Respondents.
CourtCourt of Appeals of South Carolina

Stephen P. Groves, Sr., John Hamilton Smith and Stephen L. Brown, all of Young, Clement, Rivers & Tisdale, of Charleston; and David A. Brown, of Aiken, for Appellants/Respondents.

Doyet A. Early, III, Richard B. Ness and Norma A.T. Jett, all of Early & Ness, of Bamberg, for Respondent/Appellant.

Amicus Curiae: O. Fayrell Furr, Jr., of Furr & Henshaw; and Glenn V. Ohanesian, of Ohanesian & Ohanesian, both of Myrtle Beach, on behalf of the South Carolina Trial Lawyers Association.


This is a medical malpractice case arising out of the death of Marshall O. Welch, Jr. The jury awarded actual damages of $28,535.88 in the survival suit, $3,000,000 in the wrongful death claim, and punitive damages of $3,900,000. After the verdict, the judge issued an order entering a partial set-off against the verdicts based upon a settlement with a prior defendant. Cross appeals have been filed. Dr. Franklin Epstein and Southern Neurologic Institute (hereafter, collectively referred to as Dr. Epstein) raise issues concerning (1) the denial of their motions for directed verdict and judgment notwithstanding the verdict (JNOV); (2) the denial of their new trial motion based upon the excessiveness of the actual and punitive damages verdicts; and (3) the jury charge on punitive damages.1 The personal representative, Kimberly Johnson Welch, challenges the set-off order. We affirm.


Marshall O. Welch, Jr. (Welch) was a thirty-seven year old registered nurse employed by Southern Neurologic Institute. He worked for Dr. Franklin Epstein, a board certified neurosurgeon, who practiced at Southern Neurologic Institute along with Dr. Martin Greenberg. Welch assisted Dr. Epstein for almost three years in the care of surgical patients.

Welch suffered from severe back pain, which began between 1990 and 1992. Dr. Epstein characterized it as an "unrelenting backache." According to Dr. Epstein, Welch initially went to Dr. Greenberg about the problem because "being a stoic, [he] didn't want to let on to me directly that he was needing something."

In June or July of 1995, Welch was taking a significant amount of prescribed pain medication, including Tylox and Vicodin. Welch might also have been using sample pain medication from the drug cabinet at Southern Neurologic Institute. Even with this medication, the pain was very severe. Dr. Greenberg stated he did not know how Welch continued to work. During the latter part of 1995, Welch's pain worsened. Dr. Greenberg recommended surgery. Welch consulted Dr. Melvyn Haas, a neurologist, for a second opinion in February of 1996. Dr. Haas agreed surgery was indicated.

The surgery involved a neurological and an orthopedic component. The orthopedic procedure would result in blood loss. Dr. Epstein declared Welch was adamant he did not want a transfusion unless there was no alternative. As a result, a cell saver was used during the surgery to "save [Welch] from getting donor blood by using [his] own blood." A cell saver is a machine which processes blood lost from a patient during surgery. The plasma and platelets are washed out and the packed red cells are returned for use in the patient.

On the morning of Thursday, February 22, 1996, Welch was admitted to the Aiken Regional Medical Center. At admission, his blood pressure was 126 over 72; temperature was 97.4; pulse was 71; and respiration was 18. His pre-operative hemoglobin was 14.4 and hematocrit was 42. Hemoglobin is a pigment within a red blood cell that carries the oxygen molecule. Hematocrit refers to the percentage of total blood volume that consists of red blood cells. Welch's estimated blood volume was 5,852 cc's.

Dr. Epstein was the attending neurosurgeon assisted by Dr. Greenberg. There is no issue concerning Dr. Epstein's performance of the neurosurgery. Henry Holsenback, a registered nurse anesthetist, administered the anesthesia to Welch and monitored his vital-signs. Welch received approximately 2,500 cc's of fluid and 625 cc's of blood cells from the cell saver. Holsenback estimated that during the surgery Welch had a blood loss of 2,000 cc's, which is normal for this type of fusion back surgery. Mary Ann Camp, the operator of the cell saver, noted a net blood loss of 2,000 cc's during surgery and another 100 cc's of blood lost from the time Welch left the operating room until Camp hooked up the hemovac in the recovery room. A hemovac is a machine which pumps blood and other liquids from a wound or surgical site.

During the surgery, Holsenback applied a 50 micrograms per hour Fentanyl transdermal patch to Welch as ordered by Dr. Epstein for post-op pain control. Fentanyl, a narcotic analgesic, is a very strong pain reliever. It is fifty to one hundred times as potent as morphine. A transdermal patch is designed to mimic an infusion or to drip medication into the patient's body so as to deliver the medication over a long period of time. Although not charted, Holsenback asserted the patch came off and was missing when the sterile drapes were removed from Welch.

Laurel Phillips, a recovery room nurse, charted a total "red drainage" into the hemovac of 300 cc's. Welch's heart rate elevated from 80 to 115 beats per minute. Phillips contacted the anesthesiologist, who ordered a complete blood count (CBC) and 500 cc's of Hespan, a volume expander. The lab report indicated a hemoglobin of 12 and a hematocrit of 33.2. Welch complained of pain and received 2.5 milligrams of Dilaudid, 25 milligrams of Phenergan, and 1 milligram of Valium. Dilaudid is a narcotic analgesic. Phenergan prevents nausea and is a mild anti-anxiety agent. Valium is an anti-anxiety agent. Another 50 microgram Fentanyl patch was applied pursuant to Dr. Epstein's orders to replace the patch which had fallen off. Welch was discharged to the floor. At that time, his pulse rate was 120 and respirations were 16.

The following day, Friday, February 23, drainage from the hemovac was measured at 385 cc's. Welch's hemoglobin level on Friday morning was 8.6. His hematocrit was 24.6. When Dr. Epstein saw Welch on Friday, Welch was puffy and pasty looking, which is not unusual for someone who has just had major surgery. He was aware of the hemoglobin level, but expected the drop due to dilution from fluids received during surgery and in the recovery room. Dr. Epstein claimed Welch was fluid overloaded, not fluid depleted. Dr. Epstein knew Welch was receiving a lot of pain medication. During that day, Welch received six injections of Dilaudid, four injections of Phenergan, and a dosage of Valium by mouth. Further, he was receiving 50 micrograms of Fentanyl hourly from the patch. Dr. Epstein computed the combined pain medication on Friday equaled ten milligrams of morphine per hour. Yet, Dr. Epstein did not feel Welch was seriously volume depleted or over medicated. In addition, he did not believe the hemoglobin decrease was causing a problem as Welch was not short of breath, had no chest pain, good mental status, and good urine output.

On Saturday, February 24, Darlene Colvin was the charge nurse on Welch's floor during the 7:00 a.m. to 7:00 p.m. shift. Approximately 100 cc's of drainage was charted before the hemovac was removed at 7:44 a.m. Colvin noted a morning hemoglobin level of 6.9, which was rechecked and reported as 6.6. Dr. Epstein called in that morning and Colvin advised him of the hemoglobin level. According to Dr. Epstein, the hemoglobin level was getting close to the 6.0 trigger point for transfusion, but he was aware of Welch's desire not to have transfusions. Since Welch had a normal blood pressure, was alert, and urinating, Dr. Epstein decided to wait and re-check the hemoglobin later.

Dr. Melvyn Haas was taking calls for Dr. Epstein on Saturday. Dr. Haas found Welch alert and oriented, but with a temperature. Dr. Haas noted the hemoglobin level was "strikingly low" in comparison to the pre-op level. He talked to Welch about the possible need for a transfusion. Welch indicated he did not want one because of the risks. Based upon the presence of a fever and his conversation with Welch, Dr. Haas ordered a CBC and an "H and H," a hemoglobin and hematocrit check. Dr. Haas felt he had an agreement from Welch that if the hemoglobin level went any lower, Welch would receive a couple of units of packed red blood cells.

In the afternoon, Dr. Greenberg saw Welch while he was on the floor checking another patient. Dr. Greenberg ordered Valium for Welch's back spasms. Around 4:20 p.m., Dr. Haas called to check on Welch's lab results. The hemoglobin level was 6.5 and Welch still had a fever. Dr. Haas ordered two blood cultures and a transfusion of two units of packed blood cells. In her nurse's progress notes, Colvin wrote that Dr. Greenberg called the hospital at approximately 4:45 p.m. in response to Welch "beep[ing] him." Dr. Greenberg was notified of Welch's increasing temperature, his hemoglobin level of 6.5, and Dr. Haas' transfusion order. According to Colvin's notes, Dr. Greenberg agreed Welch needed a transfusion. Dr. Greenberg denied making that statement.

At 5:30 p.m., Darlene Colvin called Dr. Epstein at home because Welch had asked her to contact him regarding Dr. Haas' transfusion order. Colvin's progress note reads:

Dr. Epstein not on call this weekend, but I attempted to reach him. I phone[d] his home and notified Dr. Epstein of [Welch's] condition. Notified that Dr. Haas had given orders to transfuse [two] units of packed cells for [hemog

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