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Halsne v. Avera Health

United States District Court, D. Minnesota

March 21, 2014

Megan Marie Halsne, individually and as parent and natural guardian of J.J.H., Plaintiff,
v.
Avera Health and Avera McKennan, Defendants.

Kenneth M. Suggs, Janet Jenner & Suggs LLC, 500 Taylor Street, Suite 301, Columbia, South Carolina 29201; Patrick Andrew Thronson, Stephen C. Offutt, and William Francis Burnham, Janet Jenner & Suggs LLC, 1777 Reistertown Road, Suite 165, Baltimore, Maryland 21208, for Plaintiff.

Cecilie M. Loidolt, Mark R. Whitmore, and Sarah M. Hoffman, Bassford Remele, PA, 33 South Sixth Street, Suite 3800, Minneapolis, Minnesota 55402, for Defendants.

MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON, District Judge.

I. INTRODUCTION

Plaintiff Megan Halsne, individually and as parent and natural guardian of J.J.H., brings this medical malpractice action against Defendants Avera Health and Avera McKennan, asserting claims of medical negligence and loss of consortium. (Am. Compl. ¶¶23-28, 29-31 [Doc. No. 28].)

Defendants move for partial summary judgment on six grounds: (1) dismissal of all claims of negligent training; (2) dismissal of medical malpractice and employment claims based on vicarious liability for the nurses at Pipestone County Medical Center; (3) dismissal of the medical malpractice claim against Defendants based on direct liability; (4) dismissal of negligent supervision claims against Defendants; (5) dismissal of Avera Health; and (6) limiting J.J.H.'s future medical expense damages to projected payments of premiums and deductibles under the Patient Protection and Affordable Care Act. (Defs.' Mot. for Partial Summ. J. at 1-2 [Doc. No. 58].)

The parties agree that this case will proceed to trial on Plaintiff's medical malpractice claim against Avera McKennan based on the alleged actions of Dr. Michael Lastine and/or Brad Burris. (Defs.' Mem. in Supp. of their Mot. for Partial Summ. J. at 2 [Doc. No. 60].) At oral argument and in her brief, Plaintiff confirmed that she has withdrawn the negligent training claims against Defendants, as well as the claims against Defendants based on vicarious liability for the nursing staff at Pipestone County Medical Center. (Mem. of Law in Opp'n to Defs.' Mot. for Partial Summ. J. at 3 [Doc. No. 69].) Thus, the first two grounds for Defendants' motion for partial summary judgment are moot. For the reasons that follow, and with respect to the remaining four claims, the Court grants in part and denies in part Defendants' motion.

II. BACKGROUND

A. The Parties and Related Non-Parties to this Lawsuit

Ms. Halsne is the parent and natural guardian of her son, J.J.H., and both are residents of Minnesota. (Am. Compl. ¶ 1 [Doc. No. 28].) Defendants Avera Health and Avera McKennan are South Dakota corporations. (Answer to Am. Compl. ¶ 3 [Doc. No. 31].) Avera Health provides support services for hospitals, long-term care facilities, clinics, and other shared service areas. (Partners in Health Agreement, Ex. G to Aff. of Cecilie M. Loidolt in Supp. of Avera Health's Mot. to Compel Joinder [Doc. No. 19-7 at 6].) Avera McKennan owns and operates an acute care hospital in Sioux Falls, South Dakota, and it is capable of providing certain hospital management services. (Id.) Non-party Pipestone County Medical Center ("PCMC") is a Minnesota corporation. (Answer to Am. Compl. ¶ 4 [Doc. No. 31].) PCMC is a hospital organized and operated by the County of Pipestone, Minnesota. (Jan. 30, 2002, Letter from James E. O'Neill, County Att'y, to Jody Jenner, PCMC Administrator, Ex. H to Loidolt Aff. [Doc. No. 19-8 at 3].) A five-member county commission governs PCMC. (Dep. of Bradley Burris at 9, Ex. A to Aff. of Melissa Riethof in Supp. of Partial Summ. J. [Doc. No. 61-1].)

On June 1, 2007, PCMC, Avera Health, and Avera McKennan entered into a Partners in Health Agreement ("Agreement"), under which Avera McKennan contracted to provide hospital management services to PCMC in the form of an administrator. (Partners in Health Agreement ¶ 1, Ex. G to Loidolt Aff. [Doc. No. 19-7 at 6].) The administrator, Bradley Burris, is an employee of Avera McKennan, who reports to the PCMC Board of Directors and receives direction from the Board. (Id.; Burris Dep. at 8, Ex. A to Riethof Aff. [Doc. No. 61-1].) Although Avera McKennan can recommend policies and procedures for PCMC to implement, the final decision-making authority to implement them rests with PCMC. (Dep. of Curt Hohman at 10-11, Ex. B to Aff. of Cecilie M. Loidolt in Supp. of Defs.' Opp'n to Mot. to Compel [Doc. No. 56-2].) The Agreement confirms that the ownership and governance of PCMC remain with PCMC. (Partners in Health Agreement ¶5, Ex. G to Loidolt Aff. [Doc. No. 19-7 at 6].)

Dr. Michael Lastine, Ms. Halsne's obstetrician and gynecologist, is an employee of Avera McKennan. (Dep. of Michael Lastine at 4, Ex. C to Riethof Aff. [Doc. No. 61-1].) Avera McKennan concedes that, under a theory of respondeat superior, it is responsible for the alleged acts and omissions of Dr. Lastine, should they be adjudicated as medical malpractice. (Answer to Am. Compl. ¶ 9 [Doc. No. 31].)

B. The Medical Events

On January 27, 2009 at 6:42 a.m., Ms. Halsne was admitted to PCMC for a scheduled induction of labor because she was past her due date. (Child Neurology Consultation of Garrett C. Burris, M.D., at 5, Ex. 3 to Pl.'s Disclosure of Expert Witnesses [Doc. No. 34-1]; Expert Report of Barry S. Schifrin, M.D., at 9, Ex. 1 to Pl.'s Disclosure of Expert Witnesses [Doc. No. 34-1].) Although the nurse's note at 7:20 a.m. showed that Ms. Halsne was not having any contractions up to that point, the fetal monitoring record showed the start of very frequent contractions at 7:15 a.m. (Schifrin Expert Report at 9, Ex. 1 to Pl.'s Disclosure of Expert Witnesses [Doc. No. 34-1].) At 7:50 a.m., Dr. Lastine administered fifty micrograms of Cytotec, a medication for inducing labor. (Id.; Lastine Dep. at 73, Ex. C to Riethof Aff. [Doc. No. 61-1].) At 8:00 a.m., Ms. Halsne reported feeling contractions, and by 8:15 a.m., she was experiencing a contraction every one to twoand-a-half minutes. (Schifrin Expert Report at 9, Ex. 1 to Pl.'s Disclosure of Expert Witnesses [Doc. No. 34-1].) At 9:30 a.m., Dr. Lastine was notified of her contraction frequency. (Id.)

Ms. Halse was intermittently monitored and encouraged to ambulate. (Id.) At 10:00 a.m., Dr. Lastine was present, and he returned at 12:19 p.m. to administer a second fifty-microgram dose of Cytotec. (Id.; Lastine Dep. at 73, Ex. C to Riethoff Aff. [Doc. No. 61-1].) At 12:32 p.m., stronger contractions occurred approximately one to two minutes apart, lasting forty-five to sixty seconds each. (Schifrin Expert Report at 9, Ex. 1 to Pl.'s Disclosure of Expert Witnesses [Doc. No. 34-1].) A deceleration in fetal heart rate was neither noted nor did it receive any response at this time. (Id.) At 1:02 p.m., Ms. Halsne reported low back pressure, stronger contractions, and strong discomfort. (Id.)

At 1:35 p.m., Dr. Lastine was informed of the fetal heart rate deceleration from 12:32 p.m., and he did not give any new orders or changes. (Id.) At 2:08 p.m., he reviewed the fetal monitor tracing and ruptured the amniotic membranes, revealing a small amount of yellow fluid. (Id. at 9-10; Lastine Dep. at 88, 95, Ex. C to Riethoff Aff. [Doc. No. 61-1].) At 2:22 p.m., Dr. Lastine was informed of additional fetal heart rate deceleration and Ms. Halsne's "intense" contractions, for which Stadol was administered. (Schifrin Expert Report at 10, Ex. 1 to Pl.'s Disclosure of Expert Witnesses [Doc. No. 34-1].) At 2:47 p.m., Dr. Lastine was informed of further fetal heart rate deceleration, and he did not respond. (Id.)

At 3:47 p.m., the tocodynamometer revealed excessive uterine activity. (Id.) At 4:00 p.m., Ms. Halsne's cervix had dilated to three centimeters. (Id.) Dr. Lastine then told Ms. Halsne that he could not administer epidural anesthesia until dilation reached four centimeters. (Id.) Two minutes later, however, Dr. Lastine changed his mind and requested anesthesia to place the epidural "due to proximity of contractions." (Id.; Lastine Dep. at 95, Ex. C to Riethoff Aff. [Doc. No. 61-1].) Ms. Halsne received the epidural, which was activated at 4:30 p.m. with Ropivacaine and Fentanyl. (Schifrin Expert Report at 10, Ex. 1 to Pl.'s Disclosure of Expert Witnesses [Doc. No. 34-1].)

At 4:58 p.m., Ms. Halsne reported more low back pain. (Id.) Head compression was noted on the monitor with good variability, and the fetal heart tracing was "consistent." (Id.) At 6:05 p.m., Ms. Halsne experienced low blood pressure. She was turned on her left side, the IV rate was increased, and the oxygen was turned up to six liters. (Id.) The fetal heart rate showed deceleration. (Id.) Dr. Lastine was notified and arrived at 6:30 p.m. (Id.) By this time, Ms. Halsne's cervix had dilated fully, and pushing was initiated. (Id.; Lastine Dep. at 105-106, Ex. C to Riethoff Aff. [Doc. No. 61-1].) Dr. Lastine remained at the bedside, and scalp stimulation was used repeatedly. (Schifrin Expert Report at 10-11, Ex. 1 to Pl.'s Disclosure of Expert Witnesses [Doc. No. 34-1].) At 7:26 p.m., the fetal head started to crown, and J.J.H. was delivered at 7:49 pm. (Id. at 11.)

Upon delivery, J.J.H. required ongoing stimulation and two to three breaths with the Ambu bag. (Id. at 15.) In the nursery, J.J.H. had a weak cry and poor tone. (Id.) He was pale and developed apneic episodes that required oxygen and bagging. (Id.) J.J.H. was given Tylenol for a constant pain-like cry. (Id.) At twelve hours, J.J.H. was pale white with clear eyes and twitching eyelids. (Id.) There were indications of trauma to J.J.H.'s head, which was tender to the touch. (Id.) Fifteen minutes later, J.J.H. was "pale and flaccid with jerky movements of the extremities and twitching eyelids." (Id.) The seizures progressed, and at fourteen hours, J.J.H. was administered phenobarbital. (Id.) At fifteen hours, J.J.H. was transferred to McKennan NICU for apneic spells and seizures, where he stayed from January 28, 2009 until February 18, 2009. (Id.; Burris Consultation at 5, Ex. 3 to Pl.'s Disclosure of Expert Witnesses [Doc. No. 34-1].) He had no suck or latch when attempting to breastfeed, but he passed the hearing test before the transfer. (Schifrin Expert Report at 15, Ex. 1 to Pl.'s Disclosure of Expert Witnesses [Doc. No. 34-1].)

J.J.H. remained on phenobarbital until June 2010. (Id.) In June 2011, J.J.H. was admitted to the emergency room for seizures, at which time he was transferred to Children's Hospital. (Id. at 15-16.) On June 29, 2011, J.J.H was admitted to Sanford USD Medical Center due to a spell of unresponsiveness that lasted approximately one to one-and-a-half hours. (Burris Consultation at 7, Ex. 3 to Pl.'s Disclosure of Expert Witnesses [Doc. No. 34-1].) In 2012, J.J.H. had several seizures, the last of which occurred on June 13, 2012. (Id. at 8.) On February 13, 2013, J.J.H. had another seizure. (Id.) These seizures were leftsided and lasted between two to three minutes each. (Id.)

J.J.H. has global developmental delay, acquired microcephaly, spastic quadriplegic cerebral palsy, and epilepsy. (Id. at 10-11.) Brain imaging studies of J.J.H. reflect partial ...


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