Cotten et al v. The United States of America et al
Memorandum Opinion and Order granting plaintiff's 161 MOTION for Partial Summary Judgment against Watkins Hospital as set out herein. Signed by District Judge Tom S. Lee on 5/18/17 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
ANTHONY COTTEN, INDIVIDUALLY,
AND ON BEHALF OF ALL
WRONGFUL DEATH BENEFICIARIES
OF TONI COTTEN, DECEASED; AND
THE ESTATE OF TONI COTTEN, DECEASED
BY AND THROUGH LYNNITA BARTEE,
CIVIL ACTION NO. 3:15CV514TSL-RHW
THE UNITED STATES OF AMERICA;
H.C. WATKINS MEMORIAL HOSPITAL;
RUSH MEDICAL FOUNDATION;
RUSH HEALTH SYSTEMS, INC.; IVAN
ZAMORA, M.D.; JAMES LOCK, M.D.;
EMCARE PHYSICIAN SERVICES, INC.,
EMERGENCY MEDICAL SERVICES CORPORATION,
EMCARE PHYSICIAN PROVIDERS, INC.,
EMCARE, INC., AND JOHN DOES 1-5 DEFENDANTS
MEMORANDUM OPINION AND ORDER
Toni Cotten died from sepsis at 5:00 on the morning of August
20, 2013, less than 20 hours after presenting at the emergency
department of H.C. Watkins Memorial Hospital.
death, plaintiffs Anthony Cotten, individually and on behalf of
all wrongful death beneficiaries of Toni Cotten, deceased, and the
Estate of Toni Cotten, deceased, by and through Lynnita Bartee,
Administratrix, filed the present action against H.C. Watkins
Memorial Hospital, among others, alleging medical malpractice in
the care and treatment she received at H.C. Watkins Memorial
Plaintiffs have now moved for partial summary judgment
as to the standard of care and breach of the standard of care on
their claim against defendant H.C. Watkins Memorial Hospital.
Defendant Rush Medical Foundation d/b/a H.C. Watkins Memorial
Hospital (Watkins Hospital or Hospital) has responded in
opposition to the motion.
The court, having considered the
memoranda of authorities, together with attachments, submitted by
the parties, concludes that plaintiffs’ motion should be granted.
The following facts are undisputed.
On the morning of August
19, 2013, Toni Cotten, age 18, arrived at the emergency department
of Watkins Hospital, accompanied by her father.
complained that she was weak and had pain in her extremities.
reported she had been having symptoms for about forty-eight hours.
She also provided a medical history, which included that she had
sickle cell disease.2
She was seen in the emergency department by
In addition to suing H.C. Watkins Memorial Hospital,
plaintiffs named as defendants Ivan Zamora and James Lock,
physicians who treated Ms. Cotten in the emergency department and
following her admission to the hospital on August 19, for their
alleged negligence in failing to timely diagnose sepsis and
respond appropriately, and the United States of America for
alleged negligence of Dr. Owen Roberts, a physician employed by
the United States who is alleged to have consulted wtih Dr. Zamora
regarding Toni Cotten’s condition and treatment while in the
Hospital’s emergency department.
See generally http:/www.hopkinschildrens.ord/sicklecell-disease.aspx (“A genetic disease, most prevalent in the
Dr. Ivan Zamora, who noted that “[t]his is a typical [sickle cell
pain] crisis for patient and except for severity there are no
Although Dr. Zamora suspected Ms. Cotten
might also have an infection since she had fever and her white
blood count was elevated, he assumed what she had was a “[sickle
cell] like syndrome,” for which he ordered IV pain medication and
He also ordered type and screen and cross-match three
units of packed red blood cells in preparation for a blood
While Ms. Cotten was still in the emergency department, Dr.
Zamora ordered urine and blood cultures to investigate the
potential of infection.
In the meantime, he ordered IV
administration of Cipro, a broad spectrum antibiotic, STAT, to be
administered after blood cultures were drawn.4
At 2:15 p.m., Dr.
Zamora ordered Ms. Cotten admitted to acute inpatient unit and
African–American community, sickle cell disease (also known as
‘sickle cell anemia’) is a disease in which red blood cells are an
abnormal crescent shape. Red blood cells are normally shaped like
a disc. They clump together, blocking blood vessels and creating
As Dr. Zamora had not previously treated Ms. Cotten,
this information presumably came from Ms. Cotten.
The first order for IV Cipro was not entered in the
chart, but it is undisputed that Dr. Zamora gave a verbal order
for IV Cipro, STAT – meaning immediately – but told the nurse on
duty, Sara Beckman, to administer the Cipro after blood was drawn
for the blood culture he had ordered.
around 2:30 p.m., she was moved from the emergency department to
the hospital floor.
It is undisputed that while Ms. Cotten was in
the emergency department, the antibiotics Dr. Zamora ordered were
The emergency department nurse assigned to Ms.
Cotten, Sara Beckman, noted that Cipro was hung awaiting to be
started infusion pending blood cultures to be drawn by the lab;
however, blood was never drawn for the blood culture while Ms.
Cotten was in the emergency department and the Cipro was not
At 4:00 p.m., after Ms. Cotten was moved to the floor, Dr.
Zamora ordered transfusion of two units of packed red blood cells;
transfusion of the first unit began at 4:30 p.m.
At 5:20, Dr.
Zamora gave an order for IV Cipro 400 mg, “start now.”
6:05 p.m., he entered an order for IV Cipro “now” and twice a day,
and for Cipro injections every twelve hours.
Transfusion of the
first unit of packed red blood cells ended at 6:55 p.m. and the
floor nurse started the second unit at 8:25 p.m.
Zamora ordered had not been administered.
The Cipro Dr.
The floor nurse noted
in the medical record at 9:00 p.m. “medication held, pt. receiving
blood at this time.”
After the second transfusion ended at 10:10 p.m., Dr. James
Lock, who had taken over Ms. Cotten’s care after Dr. Zamora left
work for the day, ordered a third transfusion, which was started
at 10:40 p.m..
At that point, blood still had not been drawn for
the cultures ordered by Dr. Zamora and the Cipro he had ordered
had not been administered.
At 12:02 a.m. on August 20, the nurse
made another note in the medical record that Cipro was not given.
The third transfusion was complete at 12:30 a.m.
Finally, at 1:58
a.m., blood was collected for the cultures Dr. Zamora had ordered.
Over the next hour, Ms. Cotten’s condition deteriorated
By 2:50 a.m., the nurse noted, she was becoming
“unresponsive” and her extremities were “cold”; at 3:00 a.m., a
code was called, and at 3:29 a.m., a second code was called.
was intubated; and while they were able to regain a pulse, Ms.
Cotten did not regain consciousness.
At 4:48 a.m., Dr. Lock
ordered Ms. Cotten transferred to Rush Medical Center in Meridian
However, minutes later, at 4:54, a third code was
called and she did not survive.
She was pronounced dead at 5:03
Plaintiffs move the court to enter partial summary judgment
in their favor establishing two specific matters: (1) that the
failure of the Watkins Hospital nurses to administer the
antibiotic Cipro to Toni Cotten was a breach of the applicable
standard of care and duty owed to Toni Cotten, and (2) that
failure of the Watkins Hospital nurses to ensure that blood for
the blood culture was timely drawn was a breach of the applicable
standard of care and duty owed to Toni Cotten by Watkins Hospital
and its employees.5
Summary Judgment Standard
Summary judgment is proper when the evidence shows that
“there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed. R. Civ.
P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52,
106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
A dispute regarding a
material fact is “genuine” if the evidence is such that a
reasonable jury could return a verdict in favor of the nonmoving
Anderson, 477 U.S. at 248, 106 S. Ct. 2505.
The party moving for summary judgment bears the initial
responsibility of informing the district court of the basis for
its motion and identifying those portions of the record it
believes demonstrate the absence of a genuine issue of material
fact. Id. at 323.
The non-moving party must then go beyond the
pleadings and designate “specific facts showing that there is a
genuine issue for trial.”
Id. at 324.
Plaintiffs acknowledge that other disputed issues,
including other alleged breaches of the standard of care by
Watkins Hospital and its employees, elements of “causation”, and
amount of appropriate damages are not within the scope of their
To prevail in a medical malpractice case under Mississippi
law, the plaintiff must prove that there was “a duty by the
defendant to conform to a specific standard of conduct for the
protection of others against an unreasonable risk of injury; (2) a
failure to conform to the required standard; and (3) an injury to
the plaintiff proximately caused by the breach of such duty by the
Hubbard v. Wansley, 954 So. 2d 951, 956–57 (Miss.
2007) (citing Drummond v. Buckley, 627 So. 2d 264, 268 (Miss.
Generally, “‘[w]hen proving these elements in a medical
malpractice suit, expert testimony must be used’” to “‘identify
and articulate the requisite standard that was not complied with’”
and to “‘establish that the failure was the proximate cause, or
proximate contributing cause, of the alleged injuries.’”
(quoting Barner v. Gorman, 605 So. 2d 805, 809 (Miss. 1992)).
This general rule is subject to “an exception for instances where
a layman can observe and understand the negligence as a matter of
common sense and practical experience.”
McGee v. River Region
Med. Ctr., 59 So. 3d 575, 578 (Miss. 2011) (quoting Coleman v.
Rice, 706 So. 2d 696, 698 (Miss. 1997)).
Here, plaintiffs have presented a detailed expert report from
Irish Patrick-Williams, R.N., Ph.D., who identifies the applicable
standard of care and states that the Watkins Hospital nurses
assigned to Toni Cotten’s care breached the standard of care by
failing to follow Dr. Zamora’s orders, and more specifically, by
failing to ensure the blood was drawn for the blood culture and
failing to timely administer antibiotics to Ms. Cotten as ordered
by Dr. Zamora.
In response to the motion, Watkins Hospital argues
that summary judgment is precluded by numerous genuine issues of
material fact, including
1. Whether Cipro was ordered “STAT” in the Watkins
Hospital Emergency Department.
2. Whether it was reasonable and appropriate to
administer Cipro simultaneously with blood transfusions.
3. Whether it was reasonable and appropriate to
prioritize concurrent or simultaneous orders.
4. Whether nursing personnel were under a duty to obtain
In the court’s opinion, these are not “genuine issues of material
fact” that would preclude summary judgment.
First, clearly, there is no dispute as to whether Dr. Zamora
ordered Cipro “STAT” in the emergency department.
testified without contradiction that he did so.
Dr. Zamora has
Of course, it is
also undisputed that Dr. Zamora’s “STAT” order for Cipro was
qualified by his directive to Nurse Sara Beckman that the Cipro be
administered only after a blood culture was drawn (which was also
a STAT order).
However, that further undisputed fact is fully
accounted for in the opinion of plaintiffs’ nursing expert who
states, without contradiction from any defense expert, that in
view of Dr. Zamora’s “STAT” order, the applicable nursing standard
of care required that the nurse in charge of Ms. Cotten’s care
either ensure that blood culture was promptly drawn by the lab or
that she drew the blood herself so that the Cipro could be timely
Neither was done.
As plaintiffs correctly point out, the remaining issues which
the Hospital contends foreclose summary judgment, i.e., issues
numbered 2 - 4 set out above, are not disputed issues of fact at
all but rather issues which implicate the applicable standard of
care and whether the nursing staff complied with that standard of
It is not the facts that are in dispute.
Instead, the only
dispute identified by the Hospital centers on whether the nurses
acted reasonably (i.e, in accordance with the applicable standard
of care) under the circumstances presented (which circumstances
are not in dispute).
Plaintiffs have offered expert testimony
that the nursing staff violated the nursing standard of care in
failing to administer Cipro to Ms. Cotten and in failing to ensure
that the blood culture was timely drawn.
The Hospital, on the
other hand, has designated no expert witness to offer any contrary
opinion as to the standard of care or to assert an opinion that
the nurses complied with any standard of care.6
As a result,
plaintiffs’ expert’s opinion stands uncontroverted in the record
and thus establishes, as a matter of law, that the Hospital
nursing staff involved in the care and treatment of Ms. Cotten –
and specifically those nurses identified in Williams’ expert
report – breached the applicable standard of care in failing to
ensure that the blood was drawn and the Cipro administered.
Plaintiffs’ motion for partial summary judgment will therefore be
Based on the foregoing, it is ordered that plaintiffs’ motion
for partial summary judgment against Watkins Hospital is granted
and it is thus taken as established that (1) the failure of the
Watkins Hospital nurses to administer the antibiotic Cipro to Toni
Cotten was a breach of the applicable standard of care and duty
owed to Toni Cotten, and (2) that the failure of the Watkins
Hospital nurses to ensure that blood for the blood culture was
timely drawn was a breach of the applicable standard of care and
The court recognizes that in an effort to demonstrate
that they acted reasonably under the circumstances, some of the
nurses involved in Ms. Cotten’s care have offered explanations as
to why they failed to administer Cipro as ordered by Dr. Zamora
and/or failed to ensure that the blood culture was drawn.
However, these nurses have not been designated as experts and
thus, their testimony is not sufficient to establish a standard of
care or to controvert Williams’ expert testimony.
duty owed to Toni Cotten by Watkins Hospital and its employees.
SO ORDERED this 18th day of May, 2017.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
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