SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI CASE NO.: 2014-CA-00440

Transcription

1 E-Filed Document Jun :23: CA Pages: 23 SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI CASE NO.: 2014-CA TABITHA PRAYER, FOR AND ON BEHALF OF THE ESTATE AND WRONGFUL DEATH BENEFICIARIES OF JONES TOY, DECEASED APPELLANT V. GREENWOOD LEFLORE HOSPITAL; THE CITY OF GREENWOOD, MISSISSIPPI; LEFLORE COUNTY; and JOHN and JANE DOES 1-10 APPELLEES BRIEF OF APPELLANT (Oral Argument Requested) COUNSEL FOR APPELLANT: W. Andrew Neely, Esq. (MSB# ) W. Eric Stracener, Esq. (MSB# 10429) STRACENER & NEELY PLLC 304 North Congress Street Post Office Box Jackson, Mississippi Telephone: (601) Facsimile: (601) John F. Hawkins, Esquire (MS Bar #9556) HAWKINS & GIBSON, PLLC 628 N. State Street (39202) Post Office Box Jackson, MS Telephone: (601) Facsimile: (601)

2 SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI CASE NO.: 2014-CA TABITHA PRAYER, FOR AND ON BEHALF OF THE ESTATE AND WRONGFUL DEATH BENEFICIARIES OF JONES TOY, DECEASED APPELLANT V. GREENWOOD LEFLORE HOSPITAL; THE CITY OF GREENWOOD, MISSISSIPPI; LEFLORE COUNTY; and JOHN and JANE DOES 1-10 APPELLEES CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Tabitha Prayer Appellant 2. Greenwood Leflore Hospital Appellees 3. W. Andrew Neely, Esq., Stracener & Neely, PLLC Attorney for Appellant 4. John F. Hawkins, Esq., Hawkins & Gibson, PLLC Attorney for Appellant 5. Gaye Nell Currie, Esq. and Rex M. Shannon, III, Esq. Attorneys for Appellees 6. Honorable Ashley Hines, Presiding Leflore County Circuit Court Judge /s/ W. Andrew Neely W. Andrew Neely Attorney of record for Appellant ii

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES... ii TABLE OF CONTENTS... iii TABLE OF CASES, STATUTES AND AUTHORITIES... iv STATEMENT REGARDING ORAL ARGUMENT...v STATEMENT OF THE ISSUES... vi STATEMENT OF THE CASE...1 A. Course of Proceedings...1 B. Statement of the Facts STANDARD OF REVIEW...5 SUMMARY OF THE ARGUMENT ARGUMENT CONCLUSION...15 CERTIFICATE...17 iii

4 TABLE OF CASES, STATUTES AND AUTHORITIES CASES PAGE Brewer Constr. Co. v. David Brewer, Inc., 940 So. 2d 921, 925 (Miss. 2006)...5, 14 Donaldson v. Covington County, 846 So. 2d 219, 222 (Miss. 2003)...5, 14 AUTHORITIES Mississippi Tort Claims Act iv

5 STATEMENT REGARDING ORAL ARGUMENT Appellants request oral argument as they believe that it could be helpful to this Court in fully understanding the issues before it. Though the issues before this Court on this Appeal are not novel, it is submitted that an oral briefing may assist the Court in appreciating the medical records and testimony at issue in this case. v

6 STATEMENT OF THE ISSUES 1. Whether the trial court s Findings of Fact and Conclusions of Law is supported by substantial, credible, and reasonable evidence, the standard set forth on appellate review for a Mississippi Tort Claims Act case where the factual determinations and legal conclusions are made solely by the trial judge. vi

7 STATEMENT OF THE CASE A. Course of Proceedings Below Plaintiffs (Appellants), Tabitha Prayer for and on behalf of the Estate and Wrongful Death Beneficiaries of Jones Toy, Deceased, filed a Complaint for medical negligence against Greenwood Leflore Hospital GLH (Appellees) under the Mississippi Tort Claims Act, , et seq. on March 19, 2010, (R. 1: ). The trial commenced on August 26, 2013 before the Court without a jury, as provided by provisions of the Mississippi Tort Claims Act, Evidence closed, and Plaintiffs and Defendants each submitted their respective proposed Findings of Fact and Conclusions of Law on September 20, On January 16, 2014, the trial court issued its Findings of Fact and Conclusions of Law, finding in favor of the Defendant Hospital and entered a Final Judgment in the Hospital s favor, having been filed with the Circuit Clerk s office on January 21, (R. 2, ). Plaintiffs timely filed their Notice of Appeal of the Final Judgment and the Finding of Facts and Conclusions of Law on February 18, (R. 172A-172B, R.E ). B. Statement of the Facts Jones Toy, Plaintiffs /Appellants decedent, a 54 year old male, was admitted to Appellee s Hospital, Greenwood Leflore Hospital ( GLH ) on or about September 17, 2008, for amputation of the tip of his right index finger. (R. 1:133, 1, R.E. 014). Mr. Toy walked into the hospital on September 17, 2008 for his outpatient procedure, and was scheduled to be released that same day. (R. 1:134, 3, R.E. 015). There was no indication that any aspect of the procedure was life threatening. After being anesthetized, Toy never communicated with anyone ever again. Toy was classified by Greenwood Leflore Hospital variably as a Class 2 or Class 3 patient under American Society of Anesthesiologists ( ASA ) standards, and was scheduled to undergo Monitored Anesthesia Care ( MAC ) during the amputation of the tip of his right index finger to 1

8 keep him comfortable during the procedure. (R. 1:134, 4-5). 1 MAC is distinct and in contrast to general anesthesia, as it is intended merely to reduce a patient s ability to experience the pain of a surgery, the patient s memory of a surgery, and the patient s awareness of the procedure during the procedure itself, all while ensuring that the patient does not lose consciousness, can breathe on his own, and can maintain the ability to follow commands. (R. 1:137, T. 3:38). Toy s pertinent medical history included chronic renal failure, high blood pressure, gout, type II diabetes, peripheral vascular disease, chronic cardiomyopathy with poor ventricular function, and intracardiac defibrillator placement. (R. 1:137, T. 3: ). Mr. Toy s pre-operative anesthesia evaluation was performed by Certified Registered Nurse Anesthetist ( CRNA ), George Sandy Weathers, an employee/agent of GLH. (R. 1:137). After the pre-operative anesthesia evaluation, no record exists which demonstrates that Toy ever communicated with anyone else health care provider, family member, or friend ever again. (R. 1:136, 19). Perioperatively, Toy was given 2 mg of Versed, 100 mcg of Fentanyl, and two separate dosages of 50 mgs of Propofol. (R. 1:137, P-1, Toy/GLH-00339, R.E. 016). Around 1400, Mr. Toy s anesthesia care was handed off from CRNA Weathers to CRNA Joseph Jody Simcox, an employee/agent of GLH. (R. 1:137). In the interim, the first incision was made on Mr. Toy s right index finger tip at or around (R. 1:137). Toy s medical chart specifically, the Anesthesia Record, a one page document completed entirely by CRNA Simcox in this instance indicates that he was given the second dose of Propofol at or around (T. 4:202, R.E. 017, P-1, Toy/GLH-00339, R.E. 016). 2 1 Plaintiff s physician and Anesthesiologist expert Douglas Packer, M.D., opined that GLH underappreciated Mr. Toy s medical condition in evaluating him for anesthesia, stating as follows regarding Mr. Toy s ASA classification: Mr. Toy was classified as ASA III. I thought he probably should have been an ASA IV, but he really was on the line between an ASA III and ASA IV. (T. 3:120). 2 Plaintiffs Nurse Anesthetist expert Rex Allison, CRNA testified that the second dose of Propofol was a violation of 2

9 Simcox testified that he did so because the patient was moving and flopping around on the table. 3 Immediately after the second dose of Propofol was administered to Mr. Toy, he experienced a precipitous drop in blood pressure to 80/35 at or around 1415 from 106/82 five minutes earlier. (T. 4:202, R.E. 017). Then, between 1415 and 1430, there is a fifteen minute period of time representing almost the entirety of the surgery itself where there is no recorded blood oxygen saturation SaO2 4 and no recorded blood pressure readings for Mr. Toy. (P-1: Toy/GLH , R.E. 016, T. 3:130, R.E. 022). Similarly, Toy s EKG reading was recorded by CRNA Simcox in the Anesthesia record as PACED between 1415 and 1430, even though Mr. Toy did not have a pacemaker, but rather an intracardiac defibrillator. (P-1: Toy/GLH-00339, R.E. 016, T. 3:130, R.E. 022).What Simcox was seeing on the EKG was actually pulseless electric activity. Id. 5 In fact, though apparently unknown by Simcox at the time, what Toy was experiencing during this time period was cardiac arrest. (T. 4:192, 8-11, R.E. 023). It does appear from the records that Simcox was aware of drop in blood pressure, at least at some point, as he administered Toy three doses of ephedrine 10 mg at 1420, 1422, and 1423; and two doses of atropine of 0.4 mg, designed to raise a patient s heart rate. (P-1: Toy/GLH-00339, R.E. 016, T. 5:259, R.E. 024, T. the standard of care in nurse anesthesiology, as it converted Mr. Toy s anesthesia treatment from a MAC to a general anesthesia. (T. 3:47-49, R. E ). Further, Dr. Packer testified that the second dose of Propofol was a violation of the standard of care in Mr. Toy s case considering his underlying ASA classification. 3 Plaintiffs Anesthesiologist expert, Dr. Packer, testified that if there is a patient who s flopping around on the table, as Mr. Toy apparently was in this case, you ve got a patient who s been over medicated who has obtunded, whose ability to hear verbal interaction, verbal commands, and given appropriate response has been inhibited by too much sedative drug. (T: 3:124, R.E. 021). Further, added Dr. Packer, backing off entirely from the procedure would have been the appropriate response under the circumstances. Id. 4 SaO2 is pulse oximetry or, that amount of oxygen saturation in the blood itself. As explained by the Plaintiffs Nurse Anesthetist expert, Rex Allison, it monitors oxygen saturations so that can tell us (if) their percent of oxygen in the circulating blood is adequate. (T. 3:43:26, R.E. 029). 5 Simcox testified during cross-examination that he [had] EKG tracing, though when questioned whether the EKG tracing was actually pulseless electric activity, where heart rhythm appears on the EKG but the heart is not actually pumping blood around the system, Simcox admitted it was but that he didn t know that at the time. (T. 5:260, R.E. 030). Still, he recorded it as PACED, incorrectly recording a pacemaker rhythm when Toy did not have a Pacemaker. Further, during CRNA Sandy Weathers testimony, Mr. Weathers admitted the same, stating We had a cardiac arrest obviously. It did have electrical activity on the monitor, so it appeared that there was not an arrest but by palpitation of a pulse we know that, and I just did chest compressions. (T. 4:192, R.E. 023). 3

10 5:229, R.E. 025). Simcox also noted in the Anesthesia Record that Mr. Toy s breathing slowed greatly at around 1415 and that he was given assisted ventilation with oxygen 100%. (P-1: Toy/GLH-00339, R.E. 016, T. 3:54, R.E. 026). However, the delivery of oxygen alone does not mean that oxygen gets into the blood system, as if a patient has no circulation, [the] gaseous exchange does not occur... It (the delivery of oxygen) has no effect because his --- he is in circulatory arrest, and there is no circulation coming in the system through the alveoli and the capillary. (T. 3:68, R.E. 027). Further, as Plaintiffs anesthesiologist expert Douglas Packer, M.D., explained, You re not going to get any effect from it (oxygen or medications) due to the fact that the circulatory system is shut down. There's no flow to deliver those medicines (or oxygen) to the places they need to go to do what they're designed to do. (T. 3:131, R.E. 028). At or around 1429, Sandy Weathers returned to the operating room / surgical suite, having previously transferred care to Simcox after the pre-anesthesia evaluation. (T. 4:198, R.E. 031). Upon return, records show that Weathers first palpated for a pulse, and detected no pulse at all. (T. 4: , R.E ). Asked why the first thing he did upon entering the room was to palpate for a pulse, Weathers stated that he did so because he saw no blood pressure reading and no oxygen saturation reading. (T. 4:207, R.E. 033). 6 Finding no pulse, Mr. Weathers immediately called a code 99 and instituted ACLS ( Advanced Cardiac Life Support ) protocol including chest compressions at (T. 4:205, , R.E. 034, 033, 035, P-1, Toy/GLH-00005, R.E. 036). Within approximately one to two minutes, Mr. Toy was ostensibly returned to baseline, thought it was soon clear he had already suffered hypoxic or anoxic brain injury. (T. 5:233, R.E. 037). Curiously, GLH s Anesthesia Record completed by Simcox documents that pulses were not palpated upon touch and chest compressions were instituted at 1420; however, Simcox admitted 6 Notably, while there was no blood pressure reading and no oxygen saturation reading for the previous 15 minutes, Simcox never once palpated Mr. Tor for a pulse. (T. 4: , R.E. 033, 035). 4

11 during cross-examination that the times he documented on the Anesthesia Record were clearly not correct. (P-1: Toy/GLH-00339, R.E. 016, T. 5:263, R.E. 038). As testified to by Plaintiffs experts, while the ACLS protocols were executed properly when they were finally instituted by Weathers, they were grossly untimely, insufficient, and ineffective as Toy had already been without oxygen in his blood or to his brain for a significant number of minutes. (T. 3:59-60, R.E , T. 4:146, R.E. 041). At or around 1500 hours, Toy was taken to the ICU at GLH. Toy never communicated with any person, family, friend, or health care provider at GLH, from the time of his surgery through his date of death 18 days later on October 05, (R. 1: 136, R.E. 042). STANDARD OF REVIEW The standard by which an appellate court reviews factual determinations made by a trial judge sitting without a jury is the substantial evidence standard. Brewer Constr. Co. v. David Brewer, Inc., 940 So. 2d 921, 925 (Miss. 2006). Under such a standard, a lower court s findings will not be reversed on appeal where they are support by substantial, credible, and reasonable evidence. Donaldson v. Covington County, 846 So. 2d 219, 222 (Miss. 2003). SUMMARY OF THE ARGUMENT The trial court s Findings of Fact and Conclusions of Law is not supported by substantial, credible, and reasonable evidence. The trial court erred in failing to recognize that the documentary evidence set forth by the Plaintiffs demonstrated that Mr. Toy suffered from a brain injury during his surgery. Further, the trial court erred in finding no brain injury occurred during the surgery in that it took as credible and reliable evidence the questionable testimony of Simcox in place of what was contained in the medical chart. Because the clear evidence demonstrates that cardiac arrest and subsequent brain injury occurred during surgery, the other factual findings of the court, and the Defendants theory of the case, do not withstand scrutiny. Rather, with a finding that cardiac 5

12 arrest and subsequent brain injury occurred during surgery, it is clear that Greenwood Leflore Hospital Certified Nurse Anesthetist, Jody Simcox, failed to timely recognize symptoms of cardiac arrest, the delay resulting in Toy s anoxic brain injury, and ultimately, death. ARGUMENT With respect to the lower court, its Findings of Fact and Conclusions of Law is not supported by substantial, credible, and reasonable evidence. The standard by which an appellate court reviews factual determinations made by a trial judge sitting without a jury is the substantial evidence standard. Brewer Constr. Co. v. David Brewer, Inc., 940 So. 2d 921, 925 (Miss. 2006). Under such a standard, a lower court s findings will not be reversed on appeal where they are support by substantial, credible, and reasonable evidence. Donaldson v. Covington County, 846 So. 2d 219, 222 (Miss. 2003). The substantial, credible, and reasonable evidence shows the following: that Mr. Toy walked into Greenwood Leflore Hospital for outpatient amputation of the tip of his right index finger, to be released home that same day; that Mr. Toy suffered a cardiac arrest from an overdose of anesthesia which went undetected for a significant period of time; and that he then suffered from lack of oxygen, causing hypoxic or anoxic 7 brain injury during the surgery from which he ultimately died. More important to this Court s standard of review, however, is that the lower court s findings that Toy did not suffer hypoxic or anoxic brain injury during the surgery cannot withstand scrutiny, and is not supported by substantial, credible, or reasonable evidence. The Court s Finding of Facts and Conclusions of Law ultimately relies on a finding that Jones Toy did not suffer cardiac arrest until the end of the surgical procedure, at which time, the lower court ruled, the arrest was timely recognized and appropriately addressed by the medical 7 Anoxia or total depletion in level of oxygen, is simply an extreme form of hypoxia or low oxygen. 6

13 personnel present at the time. (R. 2: 169, 20, R.E. 043). Similarly, the trial court found that Mr. Toy did not suffer a hypoxic brain injury while in the surgical suite on September 17, 2008, and at no time during the surgical procedure or the resuscitative efforts was Mr. Toy deprived of oxygen for a sufficient time to induce hypoxic events. (R. 2: 171, 30, R.E. 044). With due respect to the lower court, these particular findings are not supported by the medical records or by credible evidence or testimony. Because these findings are not supported by credible evidence or testimony, the lower court s accompanying factual findings cannot be reconciled. In fact, the credible evidence shows that Mr. Toy did in fact suffer a hypoxic brain injury during surgery. This fact is crucial to the outcome of this case because it demonstrates that the cardiac arrest must have occurred during surgery and not at the end of the surgery. This distinction cannot be overstated. If the cardiac arrest occurred at the end of the surgery (Defendants theory and that accepted by the lower court), then GLH medical personnel can be found to have acted and responded appropriately and timely. However, if the cardiac arrest occurred during surgery, then the record clearly indicates that little to no action was taken by CRNA Simcox to appropriately and timely respond and initiate resuscitative efforts, as there is no dispute that resuscitative efforts were not initiated until 1429 at the earliest. Plaintiffs expert Dr. Packer explained the importance of this distinction during his trial testimony: If the patient were resuscitated within 1 to 2 minutes already having been breathing oxygen prior to an arrest, he would have had enough circulating oxygen to go on the order of perhaps 5 minutes plus before having any significant brain injury. The fact that Mr. Toy had significant anoxic brain injury tells me that there is absolutely no way he could have been resuscitated in 1 to 2 minutes and suffered brain damage, already having been on oxygen so that he had a significant buffer of oxygen in his blood stream so that if he went apneic or didn t breathe for several minutes or didn t have any effective circulation for several minutes to deliver oxygen to his brain, he would not have had the brain damage that he suffered had he been on oxygen prior to this arrest and been resuscitated within a couple of minutes. It s impossible. 7

14 (T. 4:154, R.E. 045). Had Mr. Toy suffered from a cardiac arrest at the close of surgery, with resuscitative efforts promptly reviving him, Mr. Toy would have been able to have some level of communication with family and medical personnel at the hospital subsequent to surgery and his alleged post-surgical cardiac arrest. However, no credible evidence demonstrates that Toy ever communicated with anyone ever again. His widow, Yolanda Toy was asked whether she was ever able to communicate with her husband after she escorted him to surgery: Q. What did you observe about Mr. Toy over the next 18 days prior to his death? A. I noticed that -- well, when I did -- when I got into the unit they had him on a ventilator, a respirator or whatever it's called, and he was just -- his eyes would open and close but no movement. No movement at all. And that wasn't him, and it was like he just couldn t pull out of whatever was happening. He couldn't pull out of it. Q. Were you ever able to talk to [y]our husband again? A. No. I could talk to him but he couldn t hear me. Q. He wasn t he never spoke to you again[?] A. No, he never spoke to me again. (T. 3:18, R.E. 046). Similarly, Mr. Toy s daughter and named Plaintiff in the case, Tabitha Prayer, testified at trial that she [saw] no response from her father during his 18 days at the hospital, and moreover, that after the surgery, she never spoke with her father again. (T ). Even more telling though is the fact that there was no evidence in the entirety of Mr. Toy s Greenwood Leflore Hospital medical chart that Mr. Toy communicated with anyone, or made any purposeful bodily movements, ever again after his surgery. However, despite the complete absence of any record showing such, CRNA Simcox incredibly testified in numerous respects about 8

15 purposeful movements made by Toy after the surgery. 8 Simcox testified during his direct testimony that after Mr. Toy was revived, [H]e was fully aware, he was reaching and grabbing for the tube. He was a bit combative. We were trying to talk to him and calm him down and say, you know, hold still, we don t want you to pull this tube out. (T. 4: , R.E ). Simcox further testified that he believed that Toy was able to understand what he was saying after Toy was revived. (T. 234). Yet, no mention of Toy having cognitive function making purposeful movements, or communicating in any fashion is contained within either the Anesthesia Record or the Code 99 record. Moreover, the Code 99 notes Toy s neuro status as unresponsive (P-1, Toy/GLH-00005, R. E. 036). How Simcox s personal recollections on the witness stand differ so greatly from medical chart (particularly the Anesthesia Record, which Simcox completed entirely himself) 9 is difficult to comprehend. (P-1, Toy/GLH-00339, R.E. 016). Aside from the foregoing discrepancies between Simcox s testimony and the medical records, the trial record is replete with other instances where Simcox testimony s is admittedly controverted and inconsistent with what is contained in the medical records. For instance, Simcox claims he was getting readings on the pulse oximetry monitor machine between 1415 and 1430, readings which he testified he personally recollected, despite the fact that the chart is marked with a dash instead of readings during this time period. (T ). Simcox testified also that during the surgery, Toy was reaching up, [] scratching his nose, and [having] purposeful movement; yet, no mention of any of the foregoing is contained in the Anesthesia Record. (P-1, Toy/GLH-00339, R.E. 016, T. 253). In an effort to rehabilitation himself, Simcox admitted I don t have everything documented in the record. 10 (T. 263, R.E. 049). 8 Again, a view of the Anesthesia Record (P-1, Toy/GLH-00339, R.E. 016) and the Code 99 record (P-1 Toy/GLH , R.E. 036) which cover the entirety of the period from 1400 to 1500 hours on September 18, 2008, contain no reference whatsoever to any communication or purposeful movements by Toy. 9 (T ). 10 Similarly, Simcox added, when asked why neither Yes or No was checked on his Anesthesia Record, There s an 9

16 He admitted also that the times noted in his Anesthesia Record were not reliable: Q. At 1420 and then again at 1425 you ve got no (blood pressure) readings, right? A. Well, I don t know about those times. I don t know about those times. There were some times after the start of the procedure that I did record a reading. At exactly when those times were I can t tell you to be 100 percent honest. (T ). Likewise, as described in the Statement of the Facts section of this Brief, the Anesthesia Record completed by Simcox documents that pulses were not palpated upon touch and chest compressions were instituted at 1420; however, Simcox admitted during cross-examination that the times he documented on the Anesthesia Record for chest compressions at 1420 were clearly not correct. ( Q. Looking down here in the notes, 1420 pulse is not palpated, chest compression. Do you believe today that at 1420 pulses weren t palpated and you started chest compressions? A. I don t. (P-1: Toy/GLH-00339, R.E. 016, T. 5:263, R.E. 049). In fact, chest compressions were not started until 1429, nine minutes after he recorded they were begun. (P-1: Toy/GLH-00005, R.E. 036). More factual inconsistencies between Simcox s testimony and the medical records could be enumerated. The salient point, however, is that CRNA Simcox s medical records and testimony fall far short of being reliable in all respects. Therefore, Simcox s testimony testimony which is belied by the medical records that he personally believed that Toy could understand him, or that Toy was making purposeful movements, reaching for the endotracheal tube, scratching his nose, or being combative, is not substantial, credible, or reasonable evidence showing that Toy had not suffered from an anoxic or hypoxic brain injury during the surgery. error of omission on my part. You know, I didn t put the end time of the surgery either. You know, there s some incompletions in the documentation, there s no doubt about it. And I would concede that the documentation of paperwork perhaps was neglected (T. 269). He later testified similarly, I hate it, I m sorry we had such a bad outcome. I m sorry that what happened to him did, I m sorry for his family, I m sorry for him, he s not here. Again, I neglected the paperwork, sure did, had a whole lot going on. (T.272). 10

17 Further evidence not taken into consideration by the lower court that Jones Toy suffered an anoxic or hypoxic brain injury during the surgery is that just two days after the surgery, on September 20, 2008, Toy was noted in the Greenwood Leflore Hospital medical chart to have symptoms of decorticate posturing. 11 (P-1, Toy/GLH-00058, R.E. 050). As background to this particular issue, there was also an incident involving Toy at GLH on September 21, 2008, while Toy was still in ICU, which was not litigated in this case. Therein, Toy was being extubated and reintubated; however, a significant period of time elapsed before Toy was reintubated and Toy was again deprived of oxygen to his brain. GLH argued at trial that any references in the GLH records of an anoxic brain injury or anoxic encephalopathy, of which there were many, likely were due to the brain oxygen deprivation that Toy suffered during this subsequent event of September 21, 2008, and not during the surgery three days prior. (T. 5: ). When Defendants physician expert, Claude Brunson, M.D., was questioned regarding the meaning and significance of decorticate posturing, Brunson agreed that decorticate posturing was consistent was someone having suffered an anoxic brain injury. (T. 5: 314, R.E. 051). 12 Dr. Brunson discussed in his cross examination testimony that any reference to a brain injury in the records, or anything from the electroencephalogram ( EEG ) which was consistent with anoxic encephalopathy (or anoxic brain injury), could have been from the incident which occurred on September 21, (T. 5: ). Specifically, Brunson testified Correct (that Toy suffered from a severe brain injury). But we haven t established that it happened because of the operating room or whether it happened because he was extubated in the intensive care unit and had to be reintubated. (T. 299). Crucially, however, Brunson retreated from that position and agreed that 11 Decorticate posture is an abnormal posturing in which a person is stiff with bent arms, clenched fists, and legs held out straight. The arms are bent in toward the body and the wrists and fingers are bent and held on the chest. This type of posturing is a sign of severe damage in the brain. 11

18 on September 20, 2008, the day prior to this incident, there was evidence in the record of nonresponsiveness and decorticate posturing which are consistent with brain injury. (T. 315, R.E. 052). The specific colloquy follows: Q. So the evidence of nonresponsiveness and the decorticate posturing which are consistent with the brain injury, those were going on before the reintubation event you ve referenced, do we agree on that? A. We agree on that, yes. Id. On redirect, counsel for GLH made no effort to rehabilitate Dr. Brunson on this issue. In its Findings of Fact and Conclusions of Law, the lower court makes no reference to the symptoms of anoxic brain injury that Mr. Toy demonstrated after the surgery and prior to the extubation / reintubation incident on September 21, Moreover, the trial court relied upon testimony from a witness who provided evidence that was neither substantial, credible, nor reasonable, as demonstrated by the numerous instances of inconsistencies between his testimony and the medical chart. Specifically, the trial court ruled that Toy was never hypoxic. (R. 168, R.E. 053). Further, in that same regard, the trial court ruled that after the surgery and prior to being moved from the surgical suite at 3:00 pm, Simcox observed that Mr. Toy was responsive, had purposeful movements, and could comprehend instructions. Id. Again, however, this testimony came from a demonstrably unreliable witness, and is further contradicted by the medical records which contain no mention of the foregoing observations. In sum, the trial court erred in not recognizing that the documentary evidence presented at trial demonstrated that Mr. Toy suffered from a brain injury during his surgery. Further, it erred in finding no brain injury occurred during the surgery in that it took as credible and reliable evidence the questionable testimony of Simcox in place of what was actually contained in the medical chart. 12

19 Again, the importance of this factual finding is that if a brain injury occurred during surgery, then cardiac arrest, pulselessness, and lack of blood circulation happened during surgery, resulting in the response and resuscitative efforts by Simcox and Weathers at 1429 being untimely and ineffective. As Dr. Packer explained, had Toy been resuscitated within one to two minutes of cardiac arrest the theory set forth by the Defendants at trial then there would have been no anoxic brain injury ( He would have had enough circulating oxygen to go on the order of perhaps 5 minutes plus before having any significant brain injury. )(T. 4:154, R.E. 054). However, what the records and not the self-serving testimony of CRNA Simcox demonstrate, is that Simcox overdosed Mr. Toy with the second dose of Propofol, but worse, he failed to timely recognize the ensuing symptoms of cardiac arrest. The Anesthesia Record demonstrates fifteen minutes of no blood pressure recordings, and fifteen minutes of no blood oxygen saturation readings. (P-1: Toy/GLH-00339, R.E. 016, T. 3:130, R.E. 022). Further, it was clear Simcox was not appreciating the situation or Toy s medical condition as a whole, as he recorded Toy s EKG reading as PACED, when in fact, Toy did not have a pacemaker but instead was experiencing pulseless electric activity. (P-1: Toy/GLH-00339, R.E. 016, T. 3:130, R.E. 022). Significantly, these exact symptoms and readings or lack thereof which Simcox had before him during surgery, caused CRNA Weathers, upon entering the surgical suite at 1429, to quickly palpate for a pulse and finding none, to immediately institute chest compressions and ACLS protocols. Specifically, Weathers was asked about this, and the following colloquy ensued: Q. I m trying to understand the objective factors that you viewed that led you to think we need to check this guy s pulse? A. Just based on prior experience. Q. But prior experience is not we need objective factors here. A. Just there was not a reading. 13

20 Q. Not a blood pressure reading? A. There s not a blood pressure reading. Q. Not a blood oxygen saturation reading? A. Right. Q. And what else? A. Patient still had a normal looking EKG tracing. 13 So I just took it upon myself to feel for a pulse. You know, you don t want to wait on a blood pressure cuff to cycle numerous time. Q. But you saw there being no blood pressure reading, you saw there being no blood oxygen saturation and you thought I need to check his pulse to make sure everything is okay here, right? A. That would be safe to say, yes. Q. Yet for approximately 15 minutes time you got no blood oxygen saturation here, showing no record of it, you got 15 minutes of no blood pressure monitor of being reported here either, yet Mr. Simcox did not do what you did for that entire 15 minute period of time. You came in there in less than a minute, you were palpating for a pulse, didn t find one and immediately instituted chest compressions, is that right? A. Well, that s correct, but I think it s easy to be critical of the record. (T. 4: , R.E ). It is evident from the record as a whole, particularly considering the evidence, that Mr. Toy had indeed suffered an anoxic or hypoxic brain injury during surgery that CRNA Simcox was grossly negligent in failing to diagnose and appropriately respond to obvious symptoms of cardiac arrest. This failure led to an irreversible anoxic or hypoxic brain injury, and ultimately, Mr. Toy's death. In conclusion, the trial court s findings are not supported by substantial, credible, and 13 Recall however that Weathers elsewhere admitted that he later knew that EKG tracing was actually pulseless electric activity and an arrest was taking place. (T. 4:192, R.E. 023). 14

21 reasonable evidence, and therefore, under the standard set forth by Donaldson v. Covington County and Brewer Constr. Co. v. David Brewer, Inc., the trial court s ruling must be reversed. CONCLUSION Greenwood Leflore Hospital s medical chart for Jones Toy accurately demonstrates that Mr. Toy suffered a relative overdose of anesthetics. Symptoms of the overdose and the ensuing cardiac arrest were not timely or sufficiently diagnosed by GLH CRNA Jody Simcox. This delay caused Mr. Toy to be without oxygen to his brain for a significant period of time, a finding which is borne out by the medical chart. The sole support for a contrary finding is the testimony of a GLH employee whose testimony is completely belied by and inconsistent with the medical chart. Because a finding that Mr. Toy did not suffer from hypoxic or anoxic brain injury during the surgery is not supported by credible evidence, the theory and findings accepted by the Court cannot be reconciled. Rather, the medical records demonstrate a hypoxic or anoxic brain injury is otherwise consistent with the Plaintiffs factual description of the case, and their experts opinions regarding the events in question. For the foregoing reasons, this Court should reverse the trial court s Final Judgment and Finding of Facts and Conclusions of Law. Respectfully submitted, this, the 19th day of June, TABITHA PRAYER, FOR AND ON BEHALF OF THE ESTATE AND WRONGFUL DEATH BENEFICIARIES OF JONES TOY, DECEASED APPELLANT By: /s/w. Andrew Neely W. Andrew Neely, Esq. (MSB #102168) 15

22 COUNSEL FOR APPELLANT: W. Andrew Neely, Esq. (MSB# ) W. Eric Stracener, Esq. (MSB# 10429) STRACENER & NEELY PLLC 304 North Congress Street Post Office Box Jackson, Mississippi Telephone: (601) Facsimile: (601) John F. Hawkins, Esquire (MS Bar #9556) HAWKINS & GIBSON, PLLC 628 N. State Street (39202) Post Office Box Jackson, MS Telephone: (601) Facsimile: (601)

23 CERTIFICATE OF SERVICE I, W. Andrew Neely, certify that I have served a copy of the above and foregoing document to the following via filing with the MEC electronic filing system: Hon. Muriel B. Ellis Mississippi Supreme Court Clerk Post Office Box 117 Jackson, Mississippi Gaye Nell Currie, Esquire Rex M. Shannon, III, Esquire Wise, Carter, Child & Caraway Post Office Box 651 Jackson, Mississippi Attorneys for Appellee Further, I hereby certify that I have mailed by United States Postal Service the document to the following: Honorable Ashley Hines Leflore County Circuit Court Judge Post Office Box 1315 Greenville, Mississippi On the 19th day of June, /s/ W. Andrew Neely W. Andrew Neely, Esq. (MSB # ) 17