Case: 3:15-cv GFVT-EBA Doc #: 81 Filed: 08/22/17 Page: 1 of 5 - Page ID#: 1379

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1 Case: 3:15-cv GFVT-EBA Doc #: 81 Filed: 08/22/17 Page: 1 of 5 - Page ID#: 1379 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION FRANKFORT CHRISTOPHER A. CURTIS AND CHRISTINA CURTIS Plaintiffs, and HUMANA HEALTH PLAN, INC. CIVIL ACTION NO. 3:15-cv GFVT-EBA Intervening Plaintiff, v. RICHARD PRETORIUS, M.D. Defendant, DEFENDANT, RICHARD PRETORIUS, M.D. S, PRETRIAL MEMORANDUM Comes the Defendant, Richard Pretorius, M.D., by and through counsel, and hereby submits his Pretrial Memorandum pursuant to this Court s Order entered on November 13, i. Succinct Statement of the Facts of the Case Mr. Curtis presented to New Horizon Medical Center in Owenton, Kentucky on September 12, 2014 with an abscess to the right buttock. Mr. Curtis had a prior history of abscesses. Mr. Curtis reported that this abscess started approximately four days prior to his presentation to the ER. Dr. Pretorius found a chafing area near the ridge of the buttock measuring 15 cm x 2 cm. Within this area was an abscess that was 1.5 cm in length and 5.5 cm in depth. Dr. Pretorius performed an irrigation and debridement procedure. The wound was packed and the patient

2 Case: 3:15-cv GFVT-EBA Doc #: 81 Filed: 08/22/17 Page: 2 of 5 - Page ID#: 1380 was instructed to return in two days or sooner if his condition worsened. Dr. Pretorius noted that antibiotics were not indicated and that he could not exclude a fistula in ano. Mr. Curtis returned to the hospital on September 14, 2014 at which time he was seen by Dr. Betty Mitchell. Dr. Mitchell noted redness and swelling in the area. Mr. Curtis was admitted to the hospital and IV antibiotics were initiated. Mr. Curtis was seen by Dr. Robert Hicks on the morning of September 15, Dr. Hicks noted that Mr. Curtis condition worsened and it was suspected that he had Fournier s Gangrene. Mr. Curtis was transferred to St. Elizabeth for an emergency procedure by Dr. Davenport on September 15, Mr. Curtis underwent a debridement of the perineum, including muscle and fascia. The post-operative diagnosis was Fournier s Gangrene. Mr. Curtis underwent a diverting colostomy on September 21, The colostomy was reversed approximately one year later. ii. The Questions of Fact and Law The ultimate issues in this case are: 1. Whether Dr. Pretorius exercised the degree of care and skill ordinarily expected of a reasonably competent physician acting under similar circumstances in his treatment of Mr. Curtis. 2. If Dr. Pretorius failed to exercise the degree of care and skill ordinarily expected of a reasonably competent physician was said failure a substantial factor in causing any damages alleged by Plaintiffs. The Plaintiffs allege that Dr. Pretorius departed from the standard of care when he did not prescribe antibiotics for Mr. Curtis or order an imaging study. It is anticipated that the Plaintiffs 2

3 Case: 3:15-cv GFVT-EBA Doc #: 81 Filed: 08/22/17 Page: 3 of 5 - Page ID#: 1381 will call Dr. Arthur Pancioli (emergency medicine and Dr. Rodger MacArthur (infectious disease as expert witnesses. Dr. Pretorius has denied the Plaintiffs' allegations of negligence. Dr. Pretorius has disclosed Dr. Neal LaHurd (emergency medicine, Dr. Gary Vitale (general surgery and Dr. Keith Armitage (infectious disease as experts. iii. Expected Evidentiary Objections 1. The Defendant will object to any evidence or reference to any chart review/peer review of treatment Dr. Pretorius provided that was conducted by or at the request of New Horizons Medical Center or Coast to Coast. 2. The Defendant will object to any evidence or reference to any complaints or issues regarding Dr. Pretorius by nursing staff and/or other individuals employed by New Horizons Medical Center. 3. The Defendant will object to any evidence or reference to any testimony from any New Horizons Medical Center employees who did not provide care or treatment to Mr. Curtis. 4. The Defendant will object to any evidence or reference to the fact that Eileen Fowler filed a Complaint and obtained a Judgment against Coast to Coast. 5. The Defendant will object to any evidence or reference to any issues regarding the relationship between New Horizons Medical Center (including any of its staff members and Coast to Coast. 6. The Defendant will object to any lawsuit, settlement, or licensure reprimand related to any lawsuit pertaining to alleged medical negligence of Dr. LaHurd. The Defendant will file a separate Motions in Limine pleading in compliance with the Court's pre-trial order. 3

4 Case: 3:15-cv GFVT-EBA Doc #: 81 Filed: 08/22/17 Page: 4 of 5 - Page ID#: 1382 iv. A listing of all pending motions 1. Motion to Excuse Personal Attendance at Pretrial Conference. v. The status of Settlement Negotiations and the Likelihood of Settlement A consent to settle clause is contained within the policy of insurance that is providing Dr. Pretorius coverage for this claim. Dr. Pretorius has elected not to provide his consent to settle this claim due in part to associated National Practitioner Data Bank reporting requirements. Accordingly, the insurance carrier is contractually bound by Dr. Pretorius election and is not permitted to extend an offer of settlement absent consent. Based on the foregoing, no settlement negotiations have been conducted between the parties. vi. The Feasibility of Alternative Dispute Resolution. Comments regarding feasibility of alternative dispute resolution shall include the views of the parties on the method of resolution (i.e., mediation, arbitration, settlement conference, summary jury trial, etc. Alternative dispute resolution is not feasible since Dr. Pretorius has not provided his consent to settle. Respectfully submitted, /s/ Craig L. Johnson Craig L. Johnson WHONSETLER & JOHNSON, PLLC Brinley Avenue Louisville, KY Phone: ( Fax: ( johnson@whonsetler.com Counsel for Defendant, Richard Pretorius, M.D. 4

5 Case: 3:15-cv GFVT-EBA Doc #: 81 Filed: 08/22/17 Page: 5 of 5 - Page ID#: 1383 CERTIFICATE OF SERVICE I hereby certify that on August 22, 2017, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to the following: Roger N. Braden, Esq. Braden, Humfleet & Devine, PLC 7000 Houston Road, Suite 36 Florence, KY rnb@bhdlaw.net Counsel for Plaintiff John C. Whitfield, Esq. Whitfield, Bryson & Mason, LLP 19 N. Main Street Madisonville, KY j_whitfield@att.net Counsel for Plaintiff Gregory G. Beck, Esq. Kreiner & Peters Co., L.P.A. P. O. Box 1209 Dublin, OH gbeck@subrogation-recovery.com Counsel for Intervening Plaintiff Humana Health Plan, Inc. /s/ Craig L. Johnson Craig L. Johnson 5