IN RE: ARBITRATION

LYNDON F. MCCALL, PERSONAL ) REPRESENTATIVE OF THE ESTATE ) YVONNEJ.MCCALL,DECEASED, )

) Plaintiff/Claimant, )

) ~ )

) SSC MONTGOMERY SOUTH HAVEN ) OPERATING COMPANY, LLC, d/b/a ) South Haven Health and Rehabilitation ) Center, et al., )

) Defendants/Respondents. )

JAMS ARBITRATION REFERENCE NO.: 140005008

FINAL RULING

This matter came to JAMS for arbitration based upon agreement of the parties. The

parties then mutually selected Jonathan C. Peters as arbitrator.

After discovery and preliminary proceedings, this matter was set for final arbitration

hearing on November 28, 2017 through November 29, 2017.

After the evidence was presented, the parties were allowed to submit proposed findings

of fact and conclusions of law. After consideration of the evidence, the documents, and the

submissions of parties, this arbitration matter is now closed and ready for final resolution.

Ms. Yvonne McCall was admitted as a resident of South Haven Health and Rehabilitation

Center from June 20, 2013 to August 14, 2013. Ms. McCall's health history included a number

of serious medical conditions. She had chronically poor circulation of lower extremities, skin

breakdown, obesity, kidney failure, and failure to thrive. She had several hospital admissions

and prior admissions to rehabilitation facilities. She had been recently diagnosed with severe

sleep apnea resulting in severe pulmonary hypertension. Significantly, a venous ultrasound

revealed blood clots in Ms. McCall's leg in July, 2013.

The testimony revealed that Ms. McCall developed an ischemic injury to the top of her

right foot while a resident at South Haven. The evidence at hearing established that this wound,

which caused her eventual demise, developed as a result of her poor circulation. There is no

contention that the wound developed as a result of negligence of or the failure of South Haven to

properly treat the patient.

The plaintiff contended at the hearing that the defendant was negligent in several ways.

First, plaintiff contended that Ms. McCall developed significant kidney impairment on July 8,

2013, which should have immediately been reported to a physician. Based upon the evidence,

this kidney impairment may or may not have played a role in the course of the sepsis and

infection that caused Ms. McCall's death.

The evidence showed that Ms. McCall presented to South Haven with a history of kidney

disease. Her critical values on admission were actually worse than the lab findings reported on

July the 81h. The plaintiff contended that these July 8th lab values should have been immediately

reported to the physician. There was no evidence admitted that these were "panic" or critical lab

values, nor any evidence that a physician had ordered any action for these type values other than

placing the lab reports in the chart for the physician's review.

The arbitrator finds that the plaintiff has failed to prove any violations of proper nursing

care in connection with these laboratory findings, and further finds that the evidence does not

support that the impaired kidney function contributed to the patient's death.

Plaintiffs main contentions in this case concern the ischemic injury to the right foot. The

plaintiff contended that the injury was not recognized in a timely fashion by the nursing staff so

that the wound could have been addressed sooner with a more favorable outcome. The plaintiff

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contended that this failure to recognize the ischemic injury sooner was due to poor nursing care

and violated the standard of care.

The facility records indicate that the injury was first noted by two separate nurses on July

12, 2013. Each reported their findings to a physician. Orders were given in regards to the

wound, and also orders for transfer to home care on the l 61h.

Nurse Renee Smith recorded this injury as a small open area to the top of the right foot.

Natilda Lamar, a wound care nurse, documented that same day that the wound was a "large,

black raised area [6.8 by 5.5 ems] noted to the center of the resident's right top foot. Area soft to

touch. Skin intact." Her note did not indicate that the area was open. Documentation reveals

that Ms. Lamar changed the dressing on the foot wound.

Although the nursing docwnentation indicates the wound developed on August 121h, there

is a conflict in testimony between the physician experts as to when the wound actually

developed.

Dr. Timothy Kline, plaintiffs expert, testified that he believed the wound had been there

prior to August ti\ although he could not say how much earlier the wound would have been

present and detectable. Defense experts Dr. Mark Hammond or Edward Rigdon testified that

this type wound develops from the tissues within the foot, and works it way outward. Both

testified that in their experience these type wounds could develop very quickly. They each

believed that it developed on August 12th as reflected in the nursing notes.

Plaintiff further contended that Ms. McCall was exhibiting changes in her vital signs and

her mental status that should have alerted the nurses that she was becoming septic. Plaintiff

contended that they failed to notify the physicians of these changes in a timely fashion to allow

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earlier treatment for Ms. McCall. Plaintiff contended these failures by defendants' nursing staff

constituted further deviations from the standard of care.

Ms. McCall was ordered transferred to the hospital on the morning of August 14 based

upon a call from the nursing staff reporting "altered mental status". The evidence is in conflict

as to when this deterioration of mental status first developed. The nursing records do not reflect

any change until mid-morning on August 14th. Plaintiffs family testified that they noticed

problems the evening before with Ms. McCall's mental status and that she was non-responsive

and changed in her behavior.

Given the conflicts and the evidence regarding when the ischemic injury developed,

when it should have been detected, and whether the nursing staff was negligent in not

recognizing the patient's signs of developing sepsis, the arbitrator instead focuses on the

evidence regarding causation. AMLA § 6-5-542(2) provides:

Standard of Care. The standard of care is that level of such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice, ordinarily have an exercise in like cases. A breach of the standard of care is a failure by health care providers to comply with the standard of care, which failure proximately causes personal injury or wrongful death. This definition applies to all actions for injuries or damages or wrongful death whether in contract or tort and whether based on intentional or unintentional conduct.

The Alabama Supreme Court has ruled that a plaintiff must establish a reasonable

probability (stated differently, "more likely than not") that there was a causal link between the

alleged medical negligence and the subsequent injured or death. Boyles v. Daugherty, 143 So.

3d 682, 686 (Ala. 2013). "The proximate cause of injury is the primary moving cause without

which it would not have occurred, but which, in the natural and probable sequence of events,

produces injury." Marshall County v. Uptain, 409 So.2d, 423 (Ala. 1981 ).

Considering the issue of causation, the arbitrator finds the evidence to be as follows:

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The records from the hospital after transfer, along with the death certificate, established

that Ms. McCall died of septic shock, secondary to the gangrenous changes in the right foot and

with associated infection at the foot. She had multiple organ failure secondary to sepsis. This

determination is not disputed.

The controlling issue in this case is whether if, even if the nurses were negligent as

alleged by the plaintiff, that negligence played any role in Ms. McCall's death.

Dr. Kline testified that upon discovery, the ischemic wound should have been

immediately referred to a vascular surgeon. He conceded that treatment was outside of his

expertise, and a vascular surgeon would be better able to state what, if anything, could be done

for this condition.

The only vascular surgeon to testify in this matter was Dr. Edward Rigdon, called by the

defense. Dr. Rigdon testified by training and experience he was quite familiar with the medical

issues surrounding the development of an ischemic injury or wound in similar cases. He testified

to his opinion after a review of Ms. McCall's medical records that, regardless of when she

developed the ischemic wound, her death was inevitable. He testified in detail that any potential

treatment or surgical option was not available to Ms. McCall because of her generally fragile and

debilitated health status. The plaintiff produced no expert vascular surgeon. The arbitrator finds

Dr. Rigdon credible and compelling.

Even if the nurses were negligent, and even if the ischemic wound injury to the right foot

could have been and should have been detected days earlier, Ms. McCall would still have

developed an overwhelming sepsis due to the inflammation and infection associated with the

disease process. Since this eventual outcome could not have been reversed or altered, the

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plaintiff's case fails to prove by a preponderance of evidence the element of causation. The

arbitrator rules for the defendant.

All fees and costs of the arbitration shall be paid according to the arbitration agreement.

This 4th day of February, 2018.

' Peters or AMS, Incorporated

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SERVICE LIST

Case Name: McCall. Lyndon F .. (Personal Representative for) Estate of McCall.~ Hear Type:

Reference#: 1440005008 Case Type:

Panelist: Peters, Jonathan ,

Christopher D. Boutwell Beasley Allen Crow, et al.

Christopher D. Boutwell Claimant 218 Commerce St. Phone: 334-269-2343 Montgomery, AL 36103 Fax: 334-954-7555 chris.boutwell@beasleyallen.com

Party Represented: McCall, Lyndon F. (Personal Representative of) et al

Ben jamin L. Locklar Beasley Allen Crow, et al.

Benjamin L. Locklar 218 Commerce St. Montgomery, AL 36103 ben. locklar@beasleyallen.com

Party Represented:

Claimant Phone: 334-269-2343 Fax: 334-954-7555

McCall, Lyndon F. (Personal Representative of) etal

Michael E. Phillips Hagwood, Adelman, Tipton, PC

Michael E. Phillips P.O. Box 14188 Jackson, MS 39236-4188 mphillips@hatlawfirm.com

Party Represented:

Respondent Phone: 601-608-6300 Fax: 601-362-3642

SSC Montgomery South Haven Operation Company, LLC

211312018

Arbitration

Professional Liability/Mali:

Page 1 of I

PROOF OF SERVICE BY EMAIL & U.S. MAIL

Re: McCall, Lyndon F., (Personal Representative for) Estate of McCall, Yvonne J. (Deceased) vs. SSC Montgomery South Haven Operating Company, LLC, et al.

Reference No. 1440005008

I, Meghan Koransky, not a party to the within action, hereby declare that on February 15, 2018, I

served the attached Final Award on the parties in the within action by Email and by depositing true copies

thereof enclosed in sealed envelopes with postage thereon fully prepaid, in the United States Mail, at Atlanta,

GEORGIA, addressed as follows:

Benjamin L. Locklar Esq. Christopher D. Boutwell Esq. Beasley Allen Crow, et al. 218 Commerce St. Montgomery, AL 36103 Phone:334-269-2343 ben.locklar@beasleyallen.com chris.boutwell@beasleyallen.com

Parties Represented: McCall, Lyndon F. (Personal Representative o

Michael E. Phillips Esq. Hagwood, Adelman, Tipton, PC P.O. Box 14188 Jackson, MS 39236-4188 Phone: 601-608-6300 mphillips@hatlawfirm.com

Parties Represented: SSC Montgomery South Haven Operation Company

I declare under penalty of perjury the foregoing to be true and correct. Executed at Atlanta,

GEORGIA on February 15, 2018.

L 1 r> ) A rd-. ~ ( t o w"' ,._____,______ ~

Meghan ransky mkorans~@jamsadr.com