Jemme J. Jenkins, Individually, and Administrator of the Estate of Jimmie Lee Alexander, Sr. v. Corizon Health Inc. et al
Filing
231
ORDER denying 122 Motion for Partial Summary Judgment. Signed by Judge William T. Moore, Jr on 8/22/2020. (pts)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JEMME J. JENKINS, Individually,
and JULIANNE GLISSON,
Administrator of the Estate of
Jimmie L. Alexander, Sr.,
Plaintiffs,
CASE NO. CV418-099
V.
CORIZON HEALTH INC., a Delaware
Corporation; GUY AUGUSTIN,
M.D.; VICTORIA NEILSER, LPN;
KEVIN TODD, Corporal; MARK
DAMBACH, LPN; CARL MILTON,
Sergeant; WANDA WILLIAMS,
Lieutenant; DESMOND BRYANT,
Corporal; CHATHAM COUNTY
COMMISSIONERS; JOHN WILCHER,
Sheriff of Chatham County; and
JOHN DOES 1-5;
Defendants.
ORDER
Before
the
Court
is
Defendants
Corizon
Health,
Inc.
C'Corizon"), Guy Augustin, M.D., Mark Dambach, LPN, and Victoria
Neisler, LPN's {collectively, ^'Corizon Defendants") Partial Motion
for
Summary
following
Judgment
reasons,
on
Wrongful
Corizon
Death.
Defendants'
(Doc.
motion
122.)
For
(Doc.
122)
the
is
DENIED.
BACKGROUND
This case arises out of the incarceration and subsequent death
of Jimmie Alexander, Sr. ("Alexander") in 2016. (Doc. 1.) Alexander
was
a
pretrial
C'CCDC").
detainee
(Doc.
86,
at
Attach.
Chatham
2.)
County
At
the
Detention
time
of
Center
Alexander's
detention. Defendant Corizon Health, Inc. ("Corizon") provided
medical services to detainees at CCDC pursuant to a contract with
Chatham County. (Doc. 87, Attach. 1.) At all relevant times.
Defendant Dr. Guy Augustin was the acting onsite medical director
employed by Corizon. (Doc. 156 at 94.) Defendant Corizon also
employed
Defendant
Mark
Dambach,
a
licensed
practical
nurse
(^"LPN"), and Defendant Victoria Neisler, also an LPN. (Doc. 48 at
17-18; Doc. 52 at 33.)
On
May
22,
2016,
around
8:30
p.m.,
Alexander
began
to
experience pain in his right hip and leg. (Doc. 96 at 5 15; Doc.
145 at 5 15.) Alexander was evaluated by Dambach and Dambach noted
that Alexander complained of sudden onset of right leg pain, that
Alexander had a weak thready pedal pulse in his right foot, and
that his blood pressure was elevated. (Doc. 96 at
145
at
17-19.)
Dambach
informed
Defendant
17-19; Doc.
Augustin
of
Alexander's symptoms and Alexander was prescribed medications to
treat
the
55 26-29;
pain
Doc.
and
lower
his
blood
pressure.
(Doc.
96
at
145 at 55 26-29.) However, later that evening,
Alexander crawled into the middle of Unit 6D floor, vomiting on
the floor
at some
point. (Doc.
96 at 55 38-39;
Doc.
145 at
55 38-39.) Dambach responded and checked Alexander's vitals, but
did
not
otherwise
check
Alexander's
right
leg.
(Doc.
96
at
SISI 41-44; Doc. 145 at SISI 41-44; Doc. 48 at 131.) Alexander was
moved to a cell in Receiving and Discharge (^""R&D") for observation
during the night. (Doc. 48 at 133-34.) Augustin arrived at CCDC
the next day. May 23, at 7:30 a.m. and spoke with other medical
providers at morning conference, and left CCDC around 8:30 a.m.
(Doc. 96 at
73-75; Doc. 145 at 55 73-75.) Augustin returned
later that day and examined Alexander at approximately 3:00 p.m.
on Monday, May 23, 2016. (Doc. 96 at 5 84; Doc. 145 at 5 84.)
During his examination, Augustin noted the absence of a pulse on
the top of the foot and that Alexander's right lower limb was cool
to the touch. (Doc. 45 at 163.) Augustin ordered Alexander to be
taken to the hospital. (Id. at 165-66.)
Alexander arrived at the Memorial Health University Medical
Center (^^Memorial") emergency room at 5:38 p.m. on May 23. (Doc.
96 at 5 97; Doc. 145 at 5 97.) It was ultimately determined by Dr.
Bhandari,
a
vascular
interventional
radiologist,
that
surgery
would be needed to address the extensive blood clot that had been
found in Alexander's right leg. (Doc. 96 at 55 100-01; Doc. 145 at
55 100-01.) Dr. Avino, a vascular surgeon, began a thrombectomy on
Alexander
at
10:05
p.m.
on
May
23,
2016
and
Alexander
was
transferred from the operating room to the post-anesthesia care
unit (^"PACU") for recovery at 11:52 p.m. (Doc. 96 at 55 103, 104,
106; Doc. 145 at 55 103, 104, 106). At 7:07 p.m. on May 23, prior
to the thrombectomy, Alexander's potassium level was recorded at
5.1 mmol/L. (Doc. 11, Attach. 1 at 87.) At 4:36 a.m. on May 24,
2016, after surgery, the basic metabolic panel, which includes the
patient's
potassium
level,
resulted
and
Alexander's
potassium
level was recorded at 7.3 mmol/L. (Id. at 91.) At 4:37 a.m., the
high lab value was reported by lab staff. (Id.) Dr. Moon, the chief
resident working that night, was informed of Alexander's potassium
level and he and his team went to the PACU and found Alexander in
cardiac arrest.
(Doc.
96 at If
113-14;
Doc.
77,
Attach.
1
at
12-13.) Alexander could not be revived and was declared dead by
Dr. Moon on May 24, 2016 at approximately 5:13 a.m. (Doc. 96 at
f 116; Doc. 90, Attach. 3 at 1.)
Alexander's autopsy was performed by the Georgia Bureau of
Investigations ("GBl") medical examiner.
Dr.
(Doc. 96 at f 117; Doc. 145 at f 117.) Dr.
Alexander's
cause
arteriosclerosis
ischemia,
status
of
which
death
was
the
manifests
postoperative
as
with
J.
Upshaw
Downs.
Downs opined that
result
of
right
lower
subsequent
^^generalized
extremity
acute
onset
hyperkalemia." (Doc. 90, Attach. 3 at 8.) Dr. Downs found that
Alexander's
excessive
potassium
and
released
toxins
during
reperfusion post-surgery contributed to Alexander's cardiac arrest
and death.
After his death, Alexander's son, Jemme Jenkins, brought suit
in both his individual and representative capacity for the benefit
of, and on behalf of, the Estate of Jimmie Lee Alexander, Sr. in
the State Court of Chatham County, Georgia. (Doc. 1, Attach. 1 at
2-17.) After amending his complaint to add a claim under 42 U.S.C.
§ 1983 for the alleged deliberate indifference to Alexander's
medical needs, the action was removed to this Court. (Doc. 1 at
1-2.) Subsequently, on May 24, 2018, Plaintiff Jenkins filed a
second amended complaint adding Julianne Glisson, in her capacity
as Administrator for the Estate of Jimmie Lee Alexander, Sr., as
plaintiff. (Doc. 15.)
Plaintiffs
subsequently
filed
a
third
amended
complaint.
(Doc. 26, Attach. 1.) In their third amended complaint. Plaintiffs
allege the following claims: (1) a professional negligence claim
against Corizon Defendants, (2) a negligence claim against Corizon
Defendants, (3) a negligence claim against Defendants Wilcher,
Todd, Milton, Williams, and Bryant, (4) a claim against the Chatham
County Commissioners alleging that they are liable for failing to
correct inadequate funding to the Chatham County Sheriff's Office,
(5)
a
claim
of
deliberate
indifference
under
the
Georgia
Constitution against all Defendants, (6) a claim of deliberate
indifference pursuant to 42 U.S.C. § 1983 against all Defendants,
(7) an intentional infliction of emotional distress claim against
all
Defendants,
(8) a
claim for
punitive
damages against all
Defendants, and (9) a claim for breach of sheriff and deputy bonds.
(Id.
at 11-24.) Corizon
Defendants
have
now
moved for
summary
judgment on Plaintiffs' claim of wrongful death. (Doc. 122 at 2.)
STANDARD OF REVIEW
Summary
judgment
shall
be
rendered
the
pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The
^'purpose of summary judgment is to ^pierce the pleadings and to
assess the proof in order to see whether there is a genuine need
for trial.' " Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)
(citing Fed. R. Civ. P. 56 advisory committee notes). Summary
judgment is appropriate when the nonmovant
fails to make a showing
sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden of
proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106
S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The substantive law
governing the action determines whether an element is essential.
DeLong Equip. Co. v. Wash. Mills Abrasive Co., 887 F.2d 1499, 1505
(11th Cir. 1989).
As the Supreme Court explained:
[A] party seeking summary judgment always bears the
initial responsibility of informing the district court
of
the
basis
for
its
motion,
and
identifying
those
portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with
the affidavits, if any, which it believes demonstrate
the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323, 106 S. Ct. at 2553. The burden then
shifts
to
the
nonmovant
to
establish,
by
going
beyond
the
pleadings, that there is a genuine issue as to facts material to
the nonmovant's case. Clark v. Coats & Clark, Inc., 929 F.2d 604,
608 {11th Cir. 1991). The Court must review the evidence and all
reasonable factual inferences arising from it in the light most
favorable to the nonmovant. Matsushita, 475 U.S. at 587-88, 106 S.
Ct. at 1356. However, the nonmoving party ^^must do more than simply
show that there is some metaphysical doubt as to the material
facts." I^, 475 U.S. at 586, 106 S. Ct. at 1356. A mere ''scintilla"
of evidence, or simply conclusory allegations, will not suffice.
See, e.g., Tidwell v. Carter Prods., 135 F.3d 1422, 1425 (11th
Cir. 1998). Nevertheless, where a reasonable fact finder may "draw
more than one inference from the facts, and that inference creates
a genuine issue of material fact, then the Court should refuse to
grant summary judgment." Barfield v. Brierton, 883 F.2d 923, 93334 (11th Cir. 1989).
ANALYSIS
In their motion, Corizon Defendants argue that Plaintiffs
cannot prove that they were the cause-in-fact of Alexander's death
because the evidence shows that it was Memorial's failure to catch
and
treat
Alexander's
high
potassium
post-operatively
that
ultimately led to Alexander's death. (Doc. 122, Attach. 1 at 12.)
Corizon Defendants contend that Plaintiffs' experts cannot specify
when Alexander ''passed the point of no return such that his death
was a foregone conclusion." (Id.) In response. Plaintiffs argue
that they have produced expert witness testimony that opines that
Alexander's
injury could
have
been
avoided
if
Defendants
had
complied with the standard of care. (Doc. 188 at 13.) Plaintiffs
also
argue
that
Defendants
cannot
escape
liability
for
the
negligent acts as a matter of law by pointing to the later acts of
Memorial. (Id. at 20-25.)
The Court finds that Corizon Defendants' motion is due to be
denied.
To recover in a medical malpractice case, a plaintiff
must show not only a violation of the applicable medical
standard of care but also that the purported violation
or deviation from the proper standard of care is the
proximate cause of the injury sustained. In other words,
a plaintiff must prove that the defendants' negligence
was both the cause in fact and the proximate cause of
his injury.
Walker v. Giles, 276 Ga. App. 632, 638, 624 S.E.2d 191, 197 (Ga.
Ct. App. 2005). Under Georgia law, causation in medical malpractice
cases must be established through expert testimony. Id. "Questions
regarding causation are peculiarly questions for the jury except
in clear, plain, palpable and undisputed cases." Id., 276 Ga. App.
at
639,
evidence
624
and
S.E.2d
expert
at
197.
Plaintiffs,
testimony
that
therefore,
shows
that
must
had
have
Corizon
Defendants abided by the standard of care, Alexander would not
have
died.
Id.
The
Court
finds
that
Plaintiffs
have
met
this
burden.
Plaintiffs'
contention
in
this
case
is
that
Corizon
Defendants were deliberately indifferent to Alexander's medical
needs by failing to adequately evaluate him and failing to send
him to the hospital earlier and that these failures constituted
medical malpractice. (Doc. 26, Attach. 1.) With regard to the
development
of
hyperkalemia.
Plaintiffs
argue
that
the
fatal
potassium level was due to the delay Alexander experienced at CCDC.
This is because prolonged ischemia can cause tissue death which,
in turn, produces acid and potassium. (Doc. 79, Attach. 2 at 4
{Dr. Blais); Doc. 90 at 41 (Dr. Downs); Doc. 81, Attach. 4 at 6
(Dr. Lewinstein).) When blood flow is restored to the limb through
revascularization, the new blood flow in effect ^^washes out" the
toxins and potassium to the rest of the body. (Doc. 79, Attach. 2
at 4 (Dr. Blais); Doc. 90 at 41 (Dr. Downs); Doc. 81, Attach. 4 at
6 (Dr. Lewinstein).) Potassium that is too high can contribute to
cardiac arrest. (Doc. 79 at 91.)
Plaintiffs must first provide expert testimony that Corizon
Defendants
deviated from the
standard
of care.
The
Court finds
that they have met this burden. Dr. Blais opined that Corizon
Defendants' actions, including the failure to provide adequate
evaluations of Alexander, fell below the standard of care and led
to the delay in Alexander receiving treatment for his ischemic
leg. (Doc. 79, Attach. 2 at 2-4.) Dr. Blais further opines that
the delay caused excessive tissue death which ultimately led to
the development of hyperkalemia. (Id.)
Further, Plaintiffs have presented expert evidence connecting
Corizon Defendants' deviations from the standard of care to the
cause of Alexander's death. Plaintiffs have presented evidence
that connects the delay in medical care Alexander experienced at
CCDC to hyperkalemia and Alexander's resulting cardiac arrest.
Numerous
experts
have
testified
that
the
development
of
hyperkalemia is directly related to the tissue death in an ischemic
limb.
When
tissue
dies
due to
lack
of blood
flow, the
muscle
creates toxins and by-products, like potassium, in the limb. Upon
the restoration of blood flow, or revascularization, the toxins
and by-products are released into the bloodstream. Dr. Blais, Dr.
Lewinstein, and Dr. Downs all discuss this process. The Court will
specifically review the experts' explanations of how delay in
treating an ischemic limb can contribute to high potassium.
Dr. Lewinstein, Corizon Defendants' own expert, testified as
follows:
Q.
Okay. Now, Paragraph 4. You say, quote. The
morbidity of thrombectomy in the presence of
prolonged ischemia relates to the presence of dead
or necrotic muscle in the extremity, which becomes
revascularized. End quote. Did I read that right?
A.
Yes.
Q.
So when you say "prolonged ischemia," what are you
referring to?
10
A.
The amount of time between the onset of ischemia
Q.
times zero and the time that you are doing
intervention, however many hours that would be.
Okay. The longer the ischemia was prolonged the
more dead or necrotic tissue in the extremity you
would expect?
A.
Once you - yeah. Once you pass the point in time
where
muscles
start
to
die,
then
the
more
prolongation there is the more necrotic by-products
of the muscle there will be.
(Doc. 81 at 104.) He also testified that Alexander's potassium
level of 5.1 and a CPK of 35,000, from Alexander's first round of
lab panels, were both consistent with necrotic muscle. (Id. at
106.) Additionally, Dr. Lewinstein testified in his deposition
that, if at 9:00 p.m. on May 22, Alexander had motor function and
sensory function, then he could have been treated with lysis
agents, which are drugs that dissolves clots. (Id. at 13; 104.)
Dr. Blais states in his Rule 26 report that "[t]he delay of
20.5 hours was a significant cause of the severe condition of
Alexander's right leg . . . during such an extended period of time,
an ischemic lower extremity will suffer severe tissue injury."
(Doc. 79, Attach. 2 at 4.) He further explains that the lack of
blood
flow
causes
tissue
to
die
thereby
increasing
acid
and
potassium that can contribute to cardiac arrest, that with a total
occlusion, the time could be as short as 5-6 hours before permanent
damage occurs, and cites to peer reviewed articles that discuss
the progression and severity of acute limb ischemia. (Id.) Dr.
Blais attributed Alexander's cause of death, e.g. cardiac arrest
11
due to hyperkalemia, to the amount of potassium that built up in
Alexander's leg due to the delay in treatment.^ (Id. at 5.)
Dr. Downs opined in his Rule 26 report that Alexander ^Mied
as the result of right lower extremity ischemia following . . .
vascular occlusion, status post emergent revascularization" which
resulted in ^^rhabdomyolysis which in turn directly resulted in a
lethal elevation in potassium." (Doc. 90, Attach. 4 at 5.) He
further
opined
that
this
situation
could
be
compounded
by
reperfusion injury. (Id. at 6.) Dr. Downs found that the delay in
treatment necessitated the surgery performed by Dr. Avino, with
its
attendant
risks,
and
that
the
delay
was
a
significant
contributing cause to Alexander's death. (Id. at 8-9.)
Thus, Plaintiffs
have
produced
expert testimony that the
process by which Alexander died, hyperkalemia, is directly tied to
the amount of dead tissue he had which, again, depends on the
length of time ischemia existed without treatment. The Court finds
that Plaintiffs have presented evidence creating a genuine issue
of material fact on the issue of causation. See Knight v. Roberts,
^ In his expert report. Dr. Blais attributes Alexander's death to
the delay Alexander suffered at CCDC. (Doc. 79, Attach. 2 at 5.)
However, in his deposition Dr. Blais stated that his prior opinion
that ^'[t]he electrolyte imbalance originating in Alexander's right
leg was most likely the cause of his death," was not ^^truly
accurate." (Doc. 79 at 68.) He stated that it was hard to say there
was just one cause but ^Mhe] would be more likely to blame a
combination of cardiac disease and hyperkalemia." (Id. at 69.)
12
316 Ga. App. 599, 605, 730 S.E.2d 78, 84 {Ga. Ct. App. 2012);
Walker, 276 Ga. App. at 642, 624 S.E.2d at 199.
Additionally,
the
Court
is
not
persuaded
by
Corizon
Defendants' argument that summary judgment is appropriate because
the experts cannot opine on a time in which Alexander passed the
^^point of no return." In MCG Health, Inc. v. Barton, 285 Ga. App.
577, 583, 647 S.E.2d 81, 87 (Ga. Ct. App. 2007), the plaintiff
offered
expert
testimony
that
the
following
actions
were
deviations from the standard of care: (1) the hospital staff's act
of negligently misplacing his form from the hospital's emergency
communication center in which his hospital admission had already
been approved, and (2) the triage nurse's act of classifying him
as ^^non-urgent" following her examination of him. The plaintiff's
medical expert opined that these actions were deviations from the
standard of care and that the actions delayed Plaintiff from being
seen by a physician which ultimately led to the loss of his
testicle. Id., 285 Ga. App. at 583-84, 647 S.E.2d at 87. The
Georgia
Court
of
Appeals
found
that ''[t]he
fact
that
[the
plaintiff's] medical expert could not testify as to the exact point
in time at which [the plaintiff's] testicle became unsalvageable
does not render his testimony mere speculation." Id. Likewise, the
inability
of an
expert
to
specify the exact
point
in
which
Alexander would die without treatment, or at what point lack of
treatment
for
the
ischemic
leg
13
created
hyperkalemia,
is
not
dispositive.
Plaintiffs
have
cited
to
expert
testimony
that
adequately demonstrates the process by which hyperkalemia develops
and the causes of it: the wash-out of toxins and potassium that
developed
due
to
the
dead
tissue
in
the
limb
following
revascularization. (See Doc. 81 at 104-105 (Dr. Lewinstein); Doc.
90 at 55-57 (Dr. Downs); Doc. 90, Attach. 4 at 7-8 (Dr. Downs).)
Finally,
judgment
to
based
the
on
extent
their
Corizon
affirmative
Defendants
defense
of
seek
summary
intervening
negligence, the Court finds that it is due to be denied. "[M]edical
malpractice
by
one
or
more
successive
physicians
does
not
constitute an intervening cause as a matter of law that cuts off
the original physician's liability." Amu v. Barnes, 286 Ga. App.
725, 734, 650 S.E.2d 288, 295 (Ga. Ct. App. 2007), aff'd, 283 Ga.
549, 662 S.E.2d 113 (2008). See also Knight, 316 Ga. App. at 608,
730 S.E.2d at 86; MCG Health, Inc., 285 Ga. App. at 585, 647 S.E.2d
at 88; Walker, 276 Ga. App. at 644, 624 S.E.2d at 201; Coleman v.
Atlanta Obstetrics & Gynecology Grp., P.A., 194 Ga. App. 508, 511,
390 S.E.2d 856, 859, aff'd, 260 Ga. 569, 398 S.E.2d 16 (Ga. Ct.
App. 1990). 'MT]he liability of a tortfeasor whose actions started
the chain of events leading to the victim's injury is superseded
and cut off only if there intervened between the act and the injury
a distinct, successive, unrelated, efficient cause of the injury."
Knight, 316 Ga. App. at 608, 730 S.E.2d at 86 (emphasis added).
See also Med. Ctr. of Cent. Georgia v. Landers, 274 Ga. App. 78,
14
86-87,
616
S.E.2d
808,
815
(Ga.
Ct.
App.
2005)
("[F]or
an intervening act of a third party to become the sole proximate
cause of a plaintiff's injuries, the intervening act must not have
been foreseeable by defendant, must not have been triggered by
defendant's act, and must have been sufficient by itself to cause
the injury." ).
As described above, there is sufficient evidence by which a
jury could find that Memorial's failure to identify and treat
Alexander's hyperkalemia
post-operatively, is not a ^Mistinct,
successive, unrelated, efficient cause of the injury." Knight, 316
Ga. App. at 608, 730 S.E.2d at 86. See MCG Health, Inc., 285 Ga.
App. at 585, 647 S.E.2d at 88 {affirming trial court's denial of
defendant hospital's motion for summary judgment based on the
defense of intervening negligence); Walker, 276 Ga. App. at 644,
624 S.E.2d at 201 (reversing trial court's grant of defendant
doctor's
motion
for
directed
verdict
based
on
intervening
negligence).
CONCLUSION
For the foregoing reasons, Corizon Defendants' Partial Motion
for Summary Judgment on Wrongful Death (Doc. 122) is DENIED.
SO ORDERED this «^^^day of August 2020.
WILLIAM T. MOORE, JR.
UNITED STATES
SOUTHERN
15
DISTRICT COURT
DISTRICT OF GEORGIA
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