United States District Court, D. Idaho
JUSTIN T. GARRIOTT and SUSAN GARRIOTT, husband and wife; JASPYN GARRIOTT, JUSTIN GARRIOTT JR., JMG1, a minor, and JMG2, a minor, Plaintiffs,
WESTERN MEDICAL ASSOCIATES, PLLC, an Idaho corporation; PAUL PASCHALL, MD; ERIC CHUN, MD, Defendants.
MEMORANDUM DECISION AND ORDER (DKT. 86)
Honorable Candy W. Dale United States Magistrate Judge.
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
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.
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.
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.)
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.
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.)
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
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.
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.)
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.)
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.
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.
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,
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.
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.
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.
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.
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).
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.
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.
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.
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.
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
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.
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
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.
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.
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.
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.
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