By FRED HORLBECK, Senior Staff Writer
fred.horlbeck@sc.lawyersweekly.com
A plaintiff who claimed her son died of pneumonia and sepsis after a North Charleston medical clinic failed to properly treat him has settled two lawsuits for a total of $1.4 million.
In a county with a reputation for conservative juries, the settlements were the culmination of a studied effort by Mount Pleasant lawyer Angus M. Lawton to make a case that any jury would buy.
They came four days into a trial for which Lawtonęs preparations included two jury consultants, four focus groups, four medical experts, two damages experts and 26 depositions, including some from former employees of the clinic, Lawton said.
The plaintiff claimed that her son, 35-year-old Leroy Paul Gunnels of Charleston County, began suffering flu-like symptoms in February 2007. Three days later, she took him to an urgent care clinic, where a doctor gave him a Valium prescription and a paper bag for hyperventilation, according to the complaint. A few hours later he died of pneumonia and sepsis.
The clinic failed to diagnose either ailment, the plaintiff alleged.
–Pneumonia is identified by a chest X-ray, which they had and they didnęt do, and sepsis is identified generally by a blood test, which they had and didnęt do,” Lawton said.
As personal representative of her sonęs estate, the plaintiff sued for actual and punitive damages on claims of wrongful death, survival and negligence. She also sued individually for negligent infliction of emotional distress, but the suit was dismissed on summary judgment, Lawton said.
The parties settled both cases in mid-December, according to court documents. The cases were reported to South Carolina Lawyers Weekly last week.
The cases were Linda Gunnels, as Personal Representative of the Estate of Leroy Paul Gunnels III v. Freedman and Healthfirst/Rapidcare, Inc., Case No. 07-CP-10-4587; and Linda Gunnels, individually, v. Freedman and Healthfirst/Rapidcare, Inc., Case No. 07-CP-10-4589.
M. Dawes Cooke Jr., an attorney for the doctor, and lawyer James J. Hinchey Jr., who represented the clinic, had not returned calls seeking comment prior to deadline.
Background
When Gunnels arrived at the clinic, he was so ill that he needed a wheelchair to enter, Lawton said. His heart rate was high and his blood pressure was low.
–When they met with the doctor, the doctor did not do any tests at all,” Lawton said.
The defendants denied the claims.
The doctor said he diagnosed Gunnels with a viral syndrome, hyperventilation and muscle cramps, and the clinic said its records indicated the same. Both said the court should bar or reduce any award under comparative-negligence principles because the plaintiff didnęt provide a complete medical history during the visit.
Another damages issue was whether a statutory cap limited non-economic damages to $350,000 per provider, but Lawton said the cap didnęt apply where there were allegations that the defendants were grossly negligent and that they altered medical records to help their case.
–We had both of those allegations in the case.”
Lawton said he planned to seek $2.3 million in actual damages but hadnęt decided on a figure for punitives.
Advance preparations
Lawton said his biggest pre-trial worry was how well his clientęs claims would fare in front of a potentially thrifty jury.
–We aggressively prepared this case because we knew that Charleston County was very conservative,” he said. –Itęs a medical community by and large, and the juries will typically have some medical personnel on them or family members of nurses and doctors.”
That didnęt faze his client. A week before trial, she refused a $1.1 million settlement offer.
–It was gutsy,” Lawton said.
Long before then, Lawton had deployed a multi-pronged strategy intended to fortify his clientęs case. It included four liability experts and two damages experts; four focus groups; two jury consultants; and, in an unusual step, depositions from former clinic employees.
Lawton said he planned for several ex-employees to testify about the clinicęs business model, which he said emphasized fast treatment.
–It was a very, very high-volume business,” he said. –And that was one of the themes we worked on: that speed does not mean quality. In this case, he got rapid care but he did not get good care.”
That theme struck a chord with one of his jury consultants, who advised him to emphasize it.
Another issue was whether Gunnels was too far gone. The plaintiffęs experts were ready to testify that he had a survival rate of about 80 percent when he visited the clinic, Lawton said. Defense experts disagreed.
–Their experts came in and said, no, he was going to die anyway with almost a 95 percent certainty,” Lawton said.
Focus groups indicated that no jury would be thrilled with such a defense, Lawton said.
–The focus groups gave us a great deal of information in terms of trial preparation and themes to use and what presentation to make,” he said. –Focus groups are very valuable in preparing for trial. Theyęre expensive, but theyęre worth it.”
Two out-of-state focus groups helped identify hot issues to develop during discovery, he said. About a month before the trial, Lawton convened two local groups.
–What we found was that most of these focus groups did not buy the defenseęs version that he was so sick he was going to die anyway,” Lawton said.
A final touch before trial was to retain co-counsel, Paul Doolittle and Fritz Jekel, both of Mount Pleasant.
–To handle that type of complex case - it was a very, very good thing to do to bring in good, competent counsel,” Lawton said.
Settlement Report
Brief statement of claim: This case involved the death of a 35-year-old man, Lee Gunnels. The plaintiff, his mother, claimed that in February 2007 Gunnels got sick and that he thought he had the flu. After three days, he got her to drive him to an urgent care facility in North Charleston. When he arrived, he could not walk and used a wheelchair to go into the office.
The plaintiff claimed Gunnels saw the triage nurse, who determined that he had an elevated heart rate (138 beats per minute), low blood pressure (97/66) and muscle cramps in all extremities. Furthermore, he was hyperventilating.
Gunnels then saw a physician, the plaintiff said. The doctor did no tests on Gunnels, despite having the capability of doing chest X-rays, blood work, urine tests, an EKG and strep testing on site, the plaintiff claimed. The doctoręs diagnosis was that Gunnels was suffering from hyperventilation, a viral syndrome and muscle spasms.
After making the diagnosis, the doctor gave Gunnels a paper bag for his hyperventilation and a prescription for valium, the plaintiff said. He then released Gunnels to go home, and the nurse put Gunnels into a wheelchair and wheeled him out of the office to his car. Two hours after leaving the doctoręs office, Gunnels was dead, the plaintiff said.
The cause of death was group A strep pneumonia and sepsis, the plaintiff said. Pneumonia is diagnosed by a chest X-ray and is treated by antibiotics. The facility had an X-ray machine and antibiotics. Sepsis is identified by a blood test, and it is treated by IV fluids, both of which were available at that location, the plaintiff claimed.
The plaintiff filed two suits. The first case was a wrongful-death and survival claim. She filed the second on her own behalf, and the cause of action was negligent infliction of emotional distress. Both cases sought actual and punitive damages.
During the course of discovery, 26 depositions were taken in six states. The case was also mediated without success.
One of the issues involved medical records. The plaintiff said there was evidence that the records were changed on the date of the treatment after the facility learned about the death. Plaintiffs claimed that no changes should have been made to the records after the facility and the doctor learned of the death. The doctor and facility claimed that the records were handled and completed in the normal course of business, and that it sometimes takes days for medical records to be complete.
Principal injuries (in order of severity): Plaintiffęs decedent died as a result of bronchopneumonia and resultant sepsis.
Special damages: Plaintiffęs economic damages amounted to $238,858, and the funeral expenses were $5,956.
Tried or settled: The cases settled on the fourth day of trial. Summary judgment had been granted to defendants on the motheręs negligent-infliction-of-emotional-distress case right before trial, and part of the settlement was allocated to that case to prevent an appeal.
County and court where tried or settled: Charleston County Court of Common Pleas
Case name and number: Linda Gunnels, as Personal Representative of the Estate of Leroy Paul Gunnels III v. Freedman and Healthfirst/Rapidcare, Inc., Case No. 07-CP-10-4587; Linda Gunnels, individually, v. Freedman and Healthfirst/Rapidcare, Inc., Case No. 07-CP-10-4589
Date concluded: Nov. 5, 2009
Name of judge: Hon. Clifton Newman
Amount: The two cases settled for a total of $1.4 million
Insurance carrier: Joint Underwriting Association (for doctor).
Expert witnesses, areas of expertise and hometown: Dr. David Tulsiak, ER physician (Tampa, Fla.); Dr. David Goldstein, pulmonologist (Longboat Key, Fla.); Dr. Oliver Wood, economist (Columbia); Dr. Charles Vanderkolk, vocational consultant (Ponta Vedra Beach, Fla.); Dr. Derek Angus, infectious diseases (Pittsburgh); and Dr. Kris Sperry, forensic pathologist (Decatur, Ga.).
Attorneys for plaintiff: Angus M. Lawton, of Lawton Law Firm (Mount Pleasant); and Paul Doolittle and Fritz Jekel, both of Jekel-Doolittle (Mount Pleasant).
Other useful info: Defendants claimed that the statutory cap on non-economic damages applied in the case. The cap purports to limit the recovery for non-economic damages in medical malpractice to $350,000 per provider. The plaintiff asserted that the cap did not apply due to defendantsę gross negligence and the changes she claimed the defendants had made in the medical record.
Submitted by: Angus M. Lawton
January 18, 2010
By FRED HORLBECK, Senior Staff Writer