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D.M. v. Wesley Medical Center, LLC

United States District Court, D. Kansas

June 12, 2019

D.M., a minor, by and through his next friend and natural guardian, KELLI MORGAN, Plaintiff,
v.
WESLEY MEDICAL CENTER LLC d/b/a WESLEY MEDICAL CENTER-WOODLAWN, et al., Defendants.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE

         D.M., a minor, by and through his next friend and natural guardian, Kelli Morgan, brings suit against Wesley Medical Center LLC d/b/a Wesley Medical Center-Woodlawn (“WMC”); Wesley-Woodlawn Campus; Bridget Grover, PA-C; Dr. Gregory Faimon; Lisa Judd, RN; Via Christi Hospitals Wichita, Inc. (“Via Christi”); Jennifer Chambers-Daney, ARNP; Dr. Bala Bhaskar Reddy Bhimavarapu; CEP America-KS LLC; Dr. Connor Hartpence; Dr. Stefanie White; Dr. Jamie Borick; and Aaron Kent, RN. This matter comes before the Court on the Motion To Dismiss Plaintiff's Claim For Punitive Damages Or, In The Alternative, To Strike Said Claim In Amended Complaint (Doc. #129) which Hartpence, White and Borick filed September 18, 2018 and the Motion To Dismiss Plaintiff's Claim For Punitive Damages Or, In The Alternative, To Strike Said Claim In Amended Complaint (Doc. #145) which WMC and Judd filed September 28, 2018.[1] For reasons stated below, the Court overrules both motions.

         Factual Assertions

         Highly summarized, plaintiff alleges the following facts:

         At 6:32 p.m. on March 5, 2017, when he was five years old, plaintiff arrived at the emergency room of WMC with a severe headache, slurred speech, photophobia, dizziness, imbalance, vomiting, disorientation, weakness and extreme lethargy. First Amended Complaint (Doc. #121) filed September 11, 2018 ¶¶ 37-41. Pursuant to WCM internal policies and procedures, Judd (an RN) triaged plaintiff as non-urgent general care, which triggered the involvement of Grover (a physician's assistant). Id. ¶¶ 42-47. Grover performed a cursory physical examination and failed to perform or refer plaintiff for a neurological assessment. Id. ¶ 50. A proper neurological assessment would have revealed elevated intracranial pressure and severe neurologic abnormalities. Id. ¶ 50. Instead, Grover ordered a strep test which came back positive.

         At 7:06 p.m., WCM discharged plaintiff with a prescription for amoxicillin. Id. ¶ 53. WCM provided no explanation for his symptoms, which had worsened since the time of his arrival. Id. ¶ 54. Dr. Faimon was responsible for supervising Grover, but he did not see plaintiff or review plaintiff's chart before discharging him. Id. ¶¶ 65-66.

         After WCM discharged plaintiff, his condition deteriorated. Id. ¶ 75. By 1:30 a.m. on March 6, plaintiff was difficult to rouse, his headache was worse, he vomited uncontrollably and he failed to respond to basic questions. Id. ¶ 78. Plaintiff's parents tried to call two different hospitals and departed for Via Christi in Wichita, Kansas. Id. ¶ 79.

         At 2:22 a.m., plaintiff's mother carried him into the emergency room at Via Christi. Id. ¶¶ 80-22. Plaintiff's mother informed emergency personnel of his sudden onset of headache, nausea, intractable vomiting, lethargy, weakness, unbalance, dizziness, slurred speech, photophobia, inability to respond to basic questions, inability to walk and knee joint pain, and the previous visit to the WCM emergency room. Id. ¶ 82.

         At 2:31 a.m., Kent (an RN) triaged plaintiff and noted the following chief complaint: “nausea and vomiting, was just diagnosed with strep tonight at Wesley, mom concerned unable to keep meds down to treat it.” Id. ¶ 83. Kent failed to note plaintiff's other symptoms, which clearly indicated the need for an immediate neurological assessment and CT scan of the head. Id. ¶¶ 84-85. At that time, plaintiff had abnormal vital signs. Id. ¶ 86.

         Pursuant to Via Christi internal policies and procedures, Kent triaged plaintiff as non-urgent general care, which triggered the involvement of Chambers-Daney, an advanced registered nurse practitioner. Id. ¶¶ 87, 90. Plaintiff waited two hours to see Chambers-Daney. Id. ¶ 88. During this time, his intracranial pressure continued to build. Id. ¶ 94. Plaintiff's vital signs revealed that his systolic blood pressure was elevated, he was hyperglycemic, his breathing rate was reduced, and his heart rate was low - all signs of increased intracranial pressure. Id. ¶ 95.

         At 4:48 a.m., Chambers-Daney saw plaintiff. Id. ¶ 93. She performed a history and charted that plaintiff presented with a sore throat and was vomiting and unable to keep medicine down. Id. ¶ 96. Chambers-Daney admitted plaintiff for observation with the following symptoms: viral pharyngitis, strep throat, viral syndrome and upper respiratory infection. Id. ¶ 97. She failed to note that plaintiff suffered from debilitating headache, inability to walk, severe lethargy, weakness, dizziness, slurred speech, photophobia, inability to answer basic questions and severe imbalance. Id. ¶ 98.

         At 5:18 a.m., junior resident physicians White and Hartpence saw plaintiff and performed a history of his symptoms. Id. ¶ 104. They charted nausea, vomiting, headache and dizziness. Id. White and Hartpence ordered staff to check plaintiff's vital signs hourly; they specifically “deferred” a neurological assessment to a later time, noting as follows: “deferred, pt sleeping, will re-evaluate on the floor.” Id. ¶ 107. White and Hartpence consulted with Dr. Bhimavarapu, who agreed with their plan to defer a neurological assessment and admitted plaintiff to the Observation Unit. Id. ¶¶ 108, 109.

         At 6:58 a.m., Borick, a first-year family practice resident, saw plaintiff. Id. ¶ 110. Borick noted that plaintiff was “non-arousable” and “very sleepy.” Id. ¶ 111. Borick failed to perform a neurological assessment or any physical exam of plaintiff's head or eyes. Id. Despite plaintiff's worsening condition, Borick planned to discharge him later that day. Id. ¶ 112.

         For three hours, plaintiff was left alone in a room with his mother. Id. ¶ 114. During this time, his condition continued to deteriorate. Id.

         At approximately 10:00 a.m., plaintiff suffered a medically preventable stroke as a result of unsustainable intracranial pressure. Id. ¶ 115. Plaintiff became unresponsive in his mother's arms and stopped breathing. Id. ¶ 116. At approximately 10:02 a.m., a Code Blue was initiated because plaintiff's mother began screaming for help. Id. ¶ 117.

         As a result of the Code Blue, plaintiff for the first time received an evaluation by a board-certified physician, who ordered a CT scan. Id. ¶¶ 119-120. The CT scan revealed a brainstem tumor and significant obstructive hydrocephalus, which caused persistent intracranial pressures. Id. ¶¶ 121-122.

         Plaintiff had surgery to relieve the pressure and cut back the tumor. Id. ¶ 122. Pathology revealed that plaintiff had a very treatable form of medulloblastoma[2] with a high probability of survival with requisite care and treatment. Id. ¶ 123. Prior to surgery, because of the unsustainable intracranial pressures caused by the obstructive hydrocephalus, plaintiff suffered a significant brainstem stroke. Id. ¶ 124. Had defendants performed a timely neurological assessment, they would have ordered a CT scan before the stroke and would have had ample time to relieve the pressure before the stroke. Id. ¶¶ 125-127.

         The stroke rendered plaintiff permanently disabled. Id. ¶ 128. Plaintiff now suffers from permanent right-side paralysis, significant neurological deficits, permanent impaired eye movement, permanent difficulty swallowing, slowed speech, permanent truncal ataxia known as “drunken sailor” gait characterized by uncertain starts and stops and unequal steps, and difficulty speaking. Id. Plaintiff is now wheelchair dependent. Id.

         Analysis

         Against all defendants, plaintiff asserts medical negligence (Count I).[3] First Amended Complaint (Doc. #121) at 30-32. Against WMC and Via Christi, plaintiff also asserts claims for violation of the Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd et seq. (Counts II and III).[4] First Amended Complaint (Doc. #121) at 33-34. In addition, as to all defendants, plaintiff seeks punitive damages (Count IV).[5] Id. at 35-37.

         Defendants assert that as a matter of law, the Court should dismiss or strike plaintiff's claim for punitive damages because he has not complied with K.S.A. § 60-3703. See Memorandum Brief In Support Of Motion To Dismiss Plaintiff's Claim For Punitive Damages Or, In The Alternative, To Strike Said Claim In The Amended Complaint (“Hartpence, White And Borick Memorandum”) (Doc. #130) filed September 18, 2018 at 1-22; Memorandum Brief In Support Of Motion To Dismiss Plaintiff's Claim For Punitive Damages Or, In The Alternative, To Strike Said Claim In Amended Complaint (“Wesley And Judd Memorandum”) (Doc. #146) filed September 28, 2018 at 2-9. Although defendants do not distinguish plaintiff's claims for punitive damages under state law (medical negligence) and federal law (violation of EMTALA), the Court construes their arguments as applying to any state law punitive damages claims over which the Court has diversity jurisdiction.

         Section 60-3703 states as follows:

No tort claim or reference to a tort claim for punitive damages shall be included in a petition or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim pursuant to K.S.A. 60-209, and amendments thereto. The court shall not grant a motion allowing the filing of an amended ...

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