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Medical Malpractice

Hospital settles suit for failing to diagnose ‘Valley Fever’
By PAUL THARP, Staff Writer

When Thanh Cong Le visited his family in San Jose, Calif., in late 2006, he had no idea he may have been exposed to fungal spores that cause coccidioidomycosis, a lung disease known as “Valley Fever.”

He felt ill enough on his return home to western North Carolina that he sought treatment at Highlands-Cashiers Hospital.

Le was seen by Dr. Mark Stephen Wagner, who ordered a chest radiograph that was reviewed and interpreted by Highlands-Cashiers’ board-certified radiologist, Rodney Stinnett.

Stinnett saw a “Diffuse micronodular pattern… associated with tuberculosis or acute histoplasmosis. … These findings must be correlated clinically” with Wagner’s diagnosis of pneumonia.

Stinnett said he met with Wagner personally to explain the discrepancy. Wagner denied meeting with Stinnett and said he never saw the radiology report.

Le’s condition worsened, and within two months he was dead at age 24.

The administrator of Le’s estate, his mother, brought suit against Highlands-Cashiers Hospital, Dr. Wagner, Dr. Waverly S. Green and Green’s medical practice, alleging that the hospital, Wagner and Green failed to timely diagnose and treat Le for a fungal lung infection which led to his death.

A Jackson County jury found the hospital liable last month in Nguyen v. Highlands-Cashiers Hospital Inc ., but it cleared Dr. Wagner. Dr. Green was dismissed from the case before trial.

KerrJudge James U. Downs bifurcated the liability and damages phases of the trial, and the hospital settled with Le’s estate before trial on the issue of damages.

The terms of the settlement were confidential, said Asheville attorney Jay Kerr, who represented Le’s estate.

“The major significance of this case involves the corporate negligence theories we advanced and supported with evidence, and which the jury clearly based its verdict upon,” Kerr told Lawyers Weekly. “We did not present a Rule 9(j) case against the hospital. We didn’t have a Rule 9(j) expert, nor did we plead the case in that manner.”

NorhupAsheville attorney Isaac Northup, who represented Green, said Le’s administrator brought the suit as a malpractice claim against the hospital for not following its own policies.

“They had a 9(j) expert and tried the case as a standard malpractice case,” Northup said. “I don’t look at it as corporate negligence as much as the failure of an employee to follow corporate policy.”

SmithKerr’s co-counsel, Martinsville, Va., attorney Fred D. Smith Jr., said the Nguyen case was the first one he had tried where the plaintiff relied strictly on the failure of a hospital to follow its own policies and procedures for reporting important patient information from radiographs to the appropriate physician.

The Joint Commission on the Accreditation of Health Care Organizations requires hospitals to develop policies and procedures for certain activities, Smith said. “Recognizing and reporting discrepancies in X-ray reports would be standard in every accredited health-care facility,” he said.

Fatal discrepancy

Dr. Stinnett testified that he reported the discrepancy in the radiology report personally to Dr. Wagner. Wagner denied meeting with Stinnett. He said he didn’t learn of the discrepancy until a month later and never received the radiology report. If he had received it, he said, he would have taken action.

At trial, Le’s administrator pointed out that Stinnett had a duty, pursuant to hospital policy, to fill out a discrepancy report. Stinnett admitted that he did not produce a report.

Coles“This was a situation in which the doctors said two diametrically opposed things,” said Greensboro attorney Stephen Coles, who represented Wagner. “The radiologist [Stinnett] said he told Dr. Wagner, but there was no documentation to support that. He admitted the hospital’s policy was to prepare a report when there was a discrepancy between how the X-rays were interpreted, and he didn’t prepare one. The jury believed Dr. Wagner.”

Stinnett’s failure to fill out a discrepancy report formed the basis of Nguyen’s claim against the hospital.

Smith said the case was “different from what we usually do” in a standard medical malpractice case. “The members of the jury understood the consequences of failing to follow policies and procedures,” he said.

Kerr agreed. “We didn’t need to bring in an expert to explain what a reasonably prudent hospital should do with its own policies.”

He did use an expert – Dr. Lawrence Mirels of California – in the case. Mirels concluded that a more timely diagnosis and treatment of the coccidioidomycosis would have prevented Le’s death.

“The defense called an international expert on causation who testified that by the time Mr. Le presented to the emergency room, the coccidioidomycosis had already moved from his lungs to his brain, and no treatment would have stopped the cascade towards his eventual death,” Kerr said.

TarletonThat expert was John Galgiani, of Tucson, Ariz., according to Asheville attorney Allan R. Tarleton, who represented the hospital.

At the close of evidence, Nguyen made a motion to amend the complaint to conform to the evidence regarding Stinnett’s failure to follow hospital policies and procedures. The court granted the motion.

Tarleton said the hospital opposed the motion and moved for a directed verdict. The trial court permitted Nguyen to amend the complaint and denied the hospital’s motion for a directed verdict.

Then, Tarleton said, when the trial court gave its instructions to the jury, it gave an instruction based on the ordinary negligence standard.

Citing Tripp v. Pate , 49 N.C. App. 329 (1980), and Waters v. Jarman , 144 N.C. App 98 (2001), Tarleton said that determining the standard of negligence to employ depends on the nature of the hospital’s policies and procedures that a plaintiff contends were not followed.

“In that context there are two kinds of corporate negligence,” Tarleton said, “negligence relating to policies and procedures in clinical care, and negligence relating to policies and procedures that govern the administration and management of a hospital.”

The process of reporting X-ray results, Tarleton said, involves patient care and requires a statutory instruction on the medical malpractice standard of care, which is higher than the ordinary negligence standard.

“We were entitled to an instruction that expert testimony was required, and we didn’t get it,” Tarleton said.

Who gets damages?

Le’s heirs were either his mother or his three children, based on the intestacy statute and depending on a legal determination of the validity of Le’s marriage, Kerr said. He said Le “had a cultural marriage ceremony with the mother of his children,” but the couple never legally married.

Defense attorneys alleged that Le’s children were illegitimate. Under state law, illegitimate children cannot inherit in certain circumstances, Coles said.

Coles said the inheritance issue was important to defense attorneys because it is difficult to try a case against a young widow and three small children. “If we showed Le was never legally married, the heir would have been the mother, not the young wife and children, who would have been more sympathetic to the jury,” he said.

Judge Downs bifurcated the liability and damages phases of the trial, with the consent of the parties, to determine whether any party was liable before deciding the issue of the identity of Le’s heirs.

But the case settled before the jury considered damages.


Type of action: Medical malpractice; wrongful death

Injuries alleged: Economic and non-economic losses available to statutory beneficiaries pursuant to wrongful death of spouse and father.

Case name: Nguyen v. Highlands-Cashiers Hospital, Inc.

Case number: 09 CVS 261

Court: Jackson County Superior Court

Judge: James U. Downs

Verdict or settlement: Jury verdict as to the liability of Highlands-Cashiers Hospital; Settlement as to damages

Date: Oct. 1, 2010

Amount: Confidential

Demand: Confidential

Offer: Confidential

Insurer: Confidential

Experts: Dr. Lawrence Mirels, infectious disease specialist (Santa Clara, Calif.); John N. Galgiani, infectious disease specialist (Tucson, Ariz.); Eliot L. Siegel, radiologist (Baltimore); Dr. Ken Gilligan (Sylva); Dr. Mark Hess (Winston-Salem); Dr. William Woodruff III (High Point)

Plaintiff’s attorney: Jay Kerr (Asheville) and Fred D. Smith Jr. (Martinsville, Va.)

Editor’s note: The information in Lawyers Weekly’s verdicts and settlements reports was submitted by the counsel for the prevailing party and represents the attorney’s characterization of the case.