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Garriott v. Western Medical Associates, PLLC

United States District Court, D. Idaho

August 2, 2017

JUSTIN T. GARRIOTT and SUSAN GARRIOTT, husband and wife; JASPYN GARRIOTT, JUSTIN GARRIOTT JR., JMG1, a minor, and JMG2, a minor, Plaintiffs,


          Honorable Candy W. Dale United States Magistrate Judge.


         Before the Court is Defendants' motion for summary judgment filed on March 31, 2017, in this medical malpractice action brought against two emergency room physicians. Defendants argue the foundation for Plaintiffs' expert witnesses to testify regarding the applicable standard of care is factually and legally deficient. The sole issue before the Court is whether the opinions of Plaintiffs' experts as expressed in their reports are admissible in connection with Defendants' motion.

         The parties filed responsive briefing and the Court conducted a hearing on July 11, 2017, at which the parties appeared and presented their arguments. After carefully considering the parties' written memoranda, relevant case law, the expert witness reports and other material filed by the parties, and the parties' arguments, the Court will deny Defendants' motion for summary judgment.


         According to the complaint, Plaintiffs Justin T. Garriott and Susan Garriott are husband and wife, and they have four children. They reside together in Spokane County, Washington.

         On March 25, 2015, Plaintiff Justin Garriott went to an urgent care clinic, with symptoms of body aches, fever, and dry cough that had been ongoing for two weeks. (Dkt. 88-3 at 2.) The urgent care physician diagnosed acute bronchitis and advised Mr. Garriott to treat with Tylenol and ibuprofen. When his condition did not improve, but worsened, Mr. Garriott went to the emergency department at Kootenai Health Hospital two days later, on March 27, 2015. (Dkt. 88-3 at 6.) At this visit, Dr. Perschau attended to Mr. Garriott, who was complaining of fever, neck stiffness, back pain, and abdominal pain. Based on his evaluation and review, Dr. Perschau reached a diagnosis of viral meningitis, dispensed several prescriptions, and advised further follow up with a primary care physician. (Dkt. 88-3 at 2.)

         The following day, Mr. Garriott felt significantly worse, but “because they told me [the infection] could take two weeks, I was trying to be a trooper and let it run its course, but it just became too much to bear, and I just didn't feel like it was within reason of something I could handle.” (Dkt. 88-3 at 24.) On March 31, 2015, Mr. Garriott returned to the emergency room at Kootenai Health. (Dkt. 88-3 at 8.) He conveyed to Dr. Paschall that he had aching in his back that also radiated into his abdomen. Dr. Paschall's impression was that Mr. Garriott had acute thoracic back pain, as well as a viral illness and resolving viral meningitis. (Dkt. 88-3 at 9.) Dr. Paschall prescribed additional pain medication and advised follow up with a primary care physician.

         Mr. Garriott continued to have pain the following day on April 1, 2015, despite taking the prescribed medications, but he already had an appointment set with a primary care physician for April 2. (Dkt. 88-3 at 27.) On the morning of April 2, 2015, as he readied himself for that appointment, he started experiencing feelings of numbness in his lower extremities. (Id.) He phoned the physician's office and was advised to go to the hospital. (Id.) Because he did not feel he could ambulate the stairs of his house or get himself to the hospital, his wife called for an ambulance. (Dkt. 88-3 at 27.)

         At this third emergency room visit to Kootenai Health, Dr. Chun attended to Mr. Garriott and concluded the most likely mechanism behind his presenting complaints was an epidural hematoma on the lumbar or thoracic spine. Dr. Chun ordered a lumbar MRI, which was read as essentially normal. (Dkt. 88-3 at 13.)

         Mr. Garriott recalled the following discussion with Dr. Chun at the ER visit of April 2:

[Dr. Chun] came back …I would say it was around 5:00…And he told me, well, it seems like everything is checking out, and I don't know what's going on, so we are going to look to get you out of here. And I remember being dumbfounded, and looking at my wife because I came in, not on my own strength, the numbness was going up, and he was talking about discharging me from the hospital.

         The testimony continued,

And so I'm like, what are you talking about. I can't feel my legs. I don't understand. It wasn't computing to me how he was even entertaining the thought of sending me home. And so I said, I'm not leaving. I'm not leaving here until you tell me what's going on.

(Dkt. 88-3 at 28-29.)

         Dr. Chun admitted Mr. Garriott to the hospital on April 2, 2015. Following Mr. Garriott's admission to the hospital, a thoracic MRI study was ordered and completed, and read shortly before 5:00 a.m. the following day, April 3. This MRI depicted an undefined lesion / mass at ¶ 7. (Dkt. 88-3 at 10, 11.) A neurosurgical consult was then ordered, and after further emergent workup, Mr. Garriott underwent an emergency decompressive laminectomy that morning to relieve pressure on his spine. (Dkt. 88-3 at 13-14.)

         Despite this surgery, Mr. Garriott has irreversible injury to his spinal cord and has been rendered a paraplegic. (Dkt. 88-3 at 15-17.) Plaintiffs filed this medical malpractice action on February 24, 2016.

         Expert Disclosures[2]

         In January of 2017, Plaintiffs provided Defendants with their expert witness disclosures and reports, which identified Richard Cummins, M.D. and Kayur Patel, M.D., as standard of care experts. (Dkt. 86-3 at 2.) Dr. Cummins is currently the Professor of Medicine at the University of Washington, and an attending physician providing emergency medical services at University Hospital in Seattle. He is board certified in both internal medicine and emergency medicine. Dr. Cummins signed his report on December 14, 2016.

         Dr. Patel is trained in both emergency medicine and internal medicine, and board certified in emergency medicine. He is licensed in Michigan, Tennessee, Kentucky, Indiana, Illinois, Virginia, and Georgia, and currently is on staff as an emergency room physician at Baptist Health Paducah in Paducah, Kentucky. In addition, Dr. Patel is a consultant for emergency medical care to several emergency departments in the United States. Dr. Patel signed his report on December 9, 2016.

         Neither Dr. Cummins nor Dr. Patel have practiced medicine in Kootenai County or within the State of Idaho. In their expert witness reports, both physicians indicated that, to familiarize themselves with the applicable standard of care, they reviewed all of the medical records regarding Mr. Garriott's care, and read the depositions of Justin Garriott, and Drs. Chun, Paschall, Perschau, and Reichel. They also spoke to Dr. Eric Johnson, a board certified family physician having practiced or currently practicing emergency medicine at facilities in Boise, Idaho; Meridian, Idaho; Driggs, Idaho; and Emmett, Idaho.

         Although neither physician indicated which portions of the depositions they specifically relied upon, Plaintiffs provided excerpts from the physicians' depositions, which are discussed below. Thereafter, the Court will review the substance of the expert witness' telephone conversation with Dr. Johnson.

         Dr. Chun's Testimony[3]

         Dr. Chun is board certified in emergency medicine by the American College of Emergency Physicians. Chun Depo. at 11. The physician group with whom Dr. Chun practices, Western Medical Associates, is the only group of emergency physicians in Kootenai County, Idaho, and Western Medical Associates is the exclusive provider of emergency room services at Kootenai Health. Id. at 13. The standard of care Dr. Chun adhered to from 1995 to 2000 in Evansville, Indiana, prior to moving to Idaho and joining Western Medical Associates, for diagnosing and treating cauda equine syndrome, cord compression, or spinal epidural abscesses is no different than the standard of practice he adheres to in Coeur d'Alene, Idaho. Id. at 17-18.

         Dr. Chun characterized Mr. Garriott's presentation to the ER on April 2, 2015, as follows: “I think it is compelling that on the third visit to our ER, knowing that he had been several times prior to that, that he wasn't able to walk and that he was profoundly weak. I think there's nothing more compelling than the weakness and inability to walk.” Id. at 25-26. Dr. Chun listed the symptoms heralding concern for an epidural abscess as “pain, numbness, weakness, anesthesia and bowel or bladder changes.” Id. at 27-28. An MRI is the most important diagnostic tool for diagnosing an epidural abscess. Id. at 35.

         Mr. Garriott complained of pain in his abdomen and low back. Id. at 71-72. Due to concern for a spinal lesion, Dr. Chun's “immediate response” on April 2, 2015, was to order an MRI. Id. at 63; see also id. at 49, 42 (questioning Dr. Chun regarding Mr. Garriott's April 2, 2015 visit to the emergency department). Dr. Chun ordered a lumbar spine with thoracic views. He recounted the verbal order as follows: “I told [the Unit Coordinator] I needed to order an MRI of the lumbar spine and to include lower thoracic views….” Id. at 82; see also id. at 81 (describing the role of the Unit Coordinator).

         Dr. Chun acknowledged the accuracy of the written transcription of his order, which states, “4/02/15 12:53 MRI Spine Lumbar w/o Cont Stat. Reason for Exam:: lower ext weakness/ r/o caudaequina syndrome. Additional Instructions:: check out lower thoracic.” Id. at 87; see also Dkt. 88-4 at 2 (written order dated April 2, 2015 at 12:53). Dr. Chun's predominant concern was that Mr. Garriott had “some form of spinal cord defect, injury or process.” Id. at 64 - 65. Dr. Chun's suspicions were not limited to the lumbar spine, but also included the lower thoracic spine. Id. at 65. Dr. Chun “was already concerned” about a thoracic problem on April 2, 2015, after initially examining Mr. Garriott. Id. at 66-67. Dr. Chun “believed that [Mr. Garriott] had profound neurologic symptoms, and [therefore] was compelled to order the MRI.” Id. at 68. The MRI was to be ordered “stat.” Id. at 69. To Dr. Chun, a stat MRI means “a high priority or highest priority.” Id. at 78. Dr. Chun viewed Mr. Garriott's condition as “an emergency.” Id. at 77. Dr. Chun ordered the MRI “well prior” to 12:53 p.m. on April 2, 2015. Id. at 81.

         The radiology report was completed at 5:05 p.m. on April 2, 2015. Id. at 106. At that time, Dr. Chun did not review the report. Id. at 106. Upon hearing the MRI study he ordered was normal, Dr. Chun's differential shifted away from a space-occupying lesion in the “lower spine, ” and he began to consider other possibilities. Id. at 113-14.

         Radiologists are available to read or consult on MRI studies taken at Kootenai Health on a 24-hour basis. Id. at 116-17. Dr. Chun ceased being Mr. Garriott's attending physician when he had completed his care, which he recollected as having been “sometime after 5:00, before 6:00 or 6:30, ” in the early evening of April 2, 2015. Id. at 135. Dr. Chun later learned that the MRI study had lumbar-only views with no contrast. Id. at 105.

         Dr. Chun admitted that, had he looked at the radiology report, he would have ordered thoracic views of the spine. Id. at 106-107. Moreover, Dr. Chun believed that, had thoracic studies been ordered, the thoracic epidural abscess would have been diagnosed. Id. at 107. Dr. Chun testified also that, had the thoracic spine been included on the MRI, more likely than not, the abscess would have been discovered. Id. at 107-108.

         Dr. Paschall's Testimony[4]

         Dr. Paschall was employed by Western Medical Associates from July of 1992 through July of 2015. Paschall Depo. at 10. In 2015, the physicians employed by Western Medical Associates did not provide emergency room services to any facilities other than Kootenai Health. Id. at 11. Dr. Paschall did not have hospital privileges at any hospital other than Kootenai Health. Id. at 13. The physicians at Western Medical Associates, whether board-certified in family practice or emergency medicine, did not differ in the way they practiced emergency medicine in 2015. Id. at 12-13. Dr. Paschall had previously practiced emergency medicine at hospitals in Jackson, Tennessee, and in Kellogg, Idaho, and testified that the standard of care or standard of practice for the diagnosis and treatment of cauda equine syndrome, spinal epidural abscess, or cord compression generally, was basically the same at those facilities as it was at Kootenai Health back in March and April of 2015. Id. at 13-14.

         Dr. Paschall was the attending emergency room physician on March 31, 2015, and saw Mr. Garriott. Id. at 29-30. In conjunction with treating Mr. Garriott, Dr. Paschall spoke with Dr. Perschau about Dr. Perschau's meningitis diagnosis from March 27, 2015, because Mr. Garriott's symptoms were different on presentation on March 31, 2015. Id. at 31-35. Mr. Garriott's presenting complaints on March 31, 2015, were backache and abdominal pain. Id. at 35.

         The emergency note for the visit on March 31, 2015, recorded the chief complaint as: back pain, aching in the back, and radiating pain into the abdomen. Id. at 40, 43. Dr. Paschall noted tenderness in Mr. Garriott's thoracic area and documented his impression that Mr. Garriott was suffering from “acute thoracic back pain.” Id. at 44.

         Dr. Paschall testified he performed a neurologic exam of muscle strength and reflexes, but failed to record it. Id. at 46-47. He believed the cause of Mr. Garriott's thoracic back pain was “[m]uscle strain [or] chronic pain, ” but he was not sure. Id. at 56. Dr. Paschall believed also Mr. Garriott simply had a resolving case of viral meningitis. Id. at 54.

         According to Dr. Paschall, when a physician has a concern for a disease process in the lumbar or thoracic spine, the physician will order both a lumbar and thoracic MRI study. Id. at 73. A lumbar MRI study obtained at Kootenai Health would include at least T12 (and, at most, T11). Id. Dr. Paschall agreed that, if an ER physician wanted to see the thoracic spine on MRI, he/she would specifically order a thoracic MRI. Id. at 74. It is typical for Dr. Paschall to review the study and the radiologist's interpretation of the same for all MRIs he orders. Id. at 75.

         Dr. Perschau's Testimony[5]

         A third physician affiliated with Western Medical Associates, Dr. Perschau, was also deposed. He has been involved in several cases involving spinal epidural abscesses. Perschau Depo. at 17. The typical signs and symptoms of a spinal epidural abscess are “weakness in the legs, numbness, tingling in the legs, pain in the midline of the back, fever, abnormal clotting studies.” Id. at 18. A patient with an epidural abscess represents a “ticking clock, ” in which a physician is trying to get “people involved and studies done” before it is too late. Id. at 20. A physician suspicious of spinal epidural abscess would order an MRI with and without contrast. Id. at 22 - 23. If he had a suspicion of an epidural abscess, he would also perform neural testing- sensation, strength and reflexes. Id. at 23.

         For an emergent MRI ordered at Kootenai Health, it would typically take between 30 to 90 minutes to have the results. Id. at 62-63. For an MRI to include the thoracic spine, a separate study of that portion of the spine would be ordered. Id. at 63 - 65. If presented with a 36-year-old male with a 3 to 4-day history of pain in the thoracic region with increasing weakness in his lower extremities, difficulty urinating, numbness/weakness in his groin, normal patellar and Achilles reflexes, but difficulty in ambulating, Dr. Perschau would order a thoracic MRI with contrast. Id. at 71 - 72. On occasions when Dr. Perschau orders an MRI through the unit coordinator, he checks the order a “few minutes later just to make sure it's the right thing.” Id. 73 - 74.

         Dr. Reichel's Testimony[6]

         Dr. Taylor Reichel is a neuroradiologist practicing at Kootenai Health, and was on call at the hospital on April 2, 2015. Reichel Depo. at 20, 36. Regarding imaging studies ordered out of the emergency room, Dr. Reichel explained:

[E]verything falls under the ‘stat'…So it's a common gripe in the medical world and in radiology specifically that ‘stat' has become this term that has lost its meaning. Because basically every single image that is performed from the emergency room is ‘stat, ' but they all have varying levels of urgency that . . . sometimes require added communication to sort of determine. But things that come out of the emergency room, we put them… in the list and we make them our priority. So ...

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