Adventist Healthcare v. Mattingly

Adventist Healthcare, Inc., et al. v. Susan M. Mattingly, No. 2104, Sept. Term 2018. Opinion filed on January 29, 2020, by Berger, J. SPOLIATION The lawful cremation of a family member’s remains is not an “act of destruction” in the spoliation context, nor did a mother’s decision to cremate her son’s remains evince an intent to destroy evidence. When an individual who has authority to make decisions about the appropriate disposition of a decedent’s remains chooses to obtain a private autopsy and subsequently have the remains cremated, the person with authority has no duty to preserve evidence from the body, nor does the person with authority have an obligation to permit other individuals to participate in the autopsy. When a person authorized to have a decedent’s remains cremated chooses to do so without having informed potential defendants in a subsequent medical malpractice case, the authorized person has not engaged in spoliation.

MEDICAL MALPRACTICE - EXPERT TESTIMONY - CAUSATION In medical malpractice cases, expert testimony is generally required to establish a breach of the standard of care and causation. In this case, no single witness testified that a nurse’s breach of the standard of care caused the decedent’s death, but the expert testimony of a nursing expert and a surgeon expert, when considered together and in conjunction with other evidence presented at trial, was sufficient to establish the element of causation and permit the claim to go to the jury. Circuit Court for Prince George’s County Case No. CAL15-26424 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2104 September Term, 2018 ______________________________________ ADVENTIST HEALTHCARE, INC., ET AL. v. SUSAN M. MATTINGLY ______________________________________ Berger, Arthur, Woodward, Patrick L. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Berger, J. ______________________________________ Filed: January 29, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2020-01-30 10:15-05:00 Suzanne C. Johnson, Clerk This is an appeal of a jury verdict in a medical malpractice case from the Circuit Court of Prince George’s County.

James Thomas Mattingly, Jr., (“Mr. Mattingly”) died on August 5, 2014, five days after a surgical procedure to reverse his colostomy. The surgery was performed by Dr. Sarabjit S. Anand, M.D. (“Dr. Anand”) at Washington Adventist Hospital in Takoma Park, Maryland on July 31, 2014. Mr. Mattingly remained hospitalized following the July 31, 2014 surgery until his death.

Mr. Mattingly’s mother, Susan Mattingly (“Ms. Mattingly”), filed the claim that gave rise to this appeal, both individually and as Personal Representative of her son’s estate, against Dr. Anand and Adventist Healthcare, Inc. d/b/a Washington Adventist Hospital (“WAH”) (collectively, the “Appellants”). Ms. Mattingly brought both wrongful death and survival claims. Ms. Mattingly alleged, inter alia, that Dr. Anand breached the standard of care by failing to timely diagnose and treat a bowel leak after the surgery, which ultimately caused infection and sepsis, resulting in Mr. Mattingly’s death.1 Ms. Mattingly further claimed that a nurse employed by WAH, Adebusola Matilukuro (“Nurse Matilukuro”) was negligent for failing to escalate the issue pursuant to hospital policy after Dr. Anand failed to respond to multiple telephone calls on the morning of August 5, 2014, while Mr. Mattingly became progressively more ill. The case proceeded to trial and the jury returned a verdict in favor of Ms. Mattingly and against both WAH and Dr. Anand.

Both WAH and Dr. Anand noted timely appeals. 1 Ms. Mattingly further alleged that Dr. Anand breached the standard of care by ordering Milk of Magnesia for Mr. Mattingly after his surgery. This issue is unrelated to the issues on appeal. Both WAH and Dr. Anand raise appellate issues relating to alleged spoliation of evidence by Ms. Mattingly.2 Specifically, the Appellants assert that Ms. Mattingly engaged in spoliation of evidence by having her son’s remains cremated after obtaining a private autopsy. The Appellants present the following appellate issues: I. Whether the circuit court erred by denying the Appellants’ Motion for Summary Judgment and 2 We have rephrased the issues presented by the Appellants for clarity.

The questions, as presented by appellant Dr. Anand, are: 1. Was the trial court’s failure to exercise discretion in refusing to sanction Appellee for spoliation of evidence an abuse of discretion warranting reversal? 2. Did Appellee’s destruction of Mr. Mattingly’s body amount to spoliation of key evidence? 3. Did the trial court err in failing to sanction Appellee for the discovery violation caused by Appellee’s spoliation of the evidence? 4.

Did the trial court err in refusing to instruct the jury on spoliation of evidence? The appellate issues, as presented by appellant WAH, are: 1. Whether this Appellant was entitled to judgment in a complex medical malpractice action involving allegations of nursing negligence in the care and treatment of a post-surgical patient where Plaintiff failed to produce any expert testimony on the issue of causation. 2. Whether the trial court erred in denying the Motions to Dismiss of the Appellants on the basis of spoliation of evidence. 3.

Whether the trial court erred in denying the requests of the Appellants for a jury instruction regarding spoliation of evidence. 2 Motions for Judgment on the basis of spoliation of evidence.

II

Whether the circuit court erred by denying the Appellants’ request for a jury instruction regarding spoliation of evidence. In addition, WAH raises one individual appellate issue and joins other arguments made by Dr. Anand. WAH’s individual appellate issue is: III. Whether the circuit court erred by failing to grant WAH’s motion for judgment on the basis that Ms. Mattingly failed to present expert testimony on the issue of whether Nurse Matilukuro’s breach of the standard of care caused Mr. Mattingly’s death.

We shall hold that the cremation of Mr. Mattingly’s remains did not constitute spoliation. Accordingly, we shall hold that the circuit court appropriately denied the Appellants’ motion for summary judgment and motions for judgment on this issue. We shall further hold that the circuit court did not abuse its discretion by declining to propound a jury instruction on spoliation. In addition, we shall hold that the circuit court did not err by denying WAH’s motion for judgment on the causation issue.

Accordingly, we shall affirm. FACTS AND PROCEEDINGS In March 2014, Mr. Mattingly presented at WAH with complaints of abdominal pain. He was diagnosed with diverticulitis and a perforated colon.3 On March 11, 2014, “Diverticula are small, bulging pouches that can form in the lining of [the] 3 digestive system. They are found most often in the lower part of the large intestine (colon).

Diverticula are common, especially after age 40, and seldom cause problems. Sometimes, however, one or more of the pouches become inflamed or infected. That condition is known as diverticulitis . . . Diverticulitis can cause severe abdominal pain, fever, nausea and a 3 Mr. Mattingly had a sigmoid colectomy and colostomy.4 On July 31, 2014, Mr. Mattingly had a surgical procedure to reverse the colostomy.

During the colostomy reversal surgery, the two disconnected sections of Mr. Mattingly’s colon were rejoined by sewing them back together, which is known as an anastomosis. A risk of colostomy reversal surgery is that a patient can develop a leak at the anastomosis, known as an anastomotic leak. The likelihood of an anastomotic leak is between three and eight percent. Because of this risk, patients are observed carefully in the hospital for a period of time following the surgery.

During the days following the colostomy reversal surgery, Mr. Mattingly appeared to be progressing normally in his recovery. Dr. Anand was involved with Mr. Mattingly’s post-operative care and saw Mr. Mattingly several times while he remained in the medical-surgical unit at WAH. During the late night and early morning hours of August 4-5, 2014, Mr. Mattingly’s condition deteriorated. Mr. Mattingly informed nurses overnight that he was in pain.

At approximately 5:30 a.m. on August 5, Mr. Mattingly telephoned his mother, Ms. Mattingly. Mr. Mattingly was very upset and was “screaming” and “telling [her] he was dying.” Mr. Mattingly asked his mother to get to the hospital as quickly as possible. marked change in . . . bowel habits.” Mayo Clinic, Patient Care & Health Information, Diseases & Conditions: Diverticulitis, available at https://www.mayoclinic.org/diseases- conditions/diverticulitis/symptoms-causes/syc-20371758, last visited Oct. 28, 2019. 4 A colectomy is a surgical procedure to remove all or part of the colon. A colostomy is a surgical procedure in which the colon is attached to an opening created in the abdomen which allows waste to leave the body through the opening. A colostomy can be permanent or temporary.

Mayo Clinic, Patient Care & Health Information, Tests & Procedures: Colectomy, available at https://www.mayoclinic.org/tests- procedures/colectomy/about/pac-20384631, last visited Oct. 28, 2019. 4 Ms. Mattingly arrived at WAH at approximately 6:45 a.m. and went straight to Mr. Mattingly’s room. She observed him “panting” and “breathing really heavy.” At one point, Mr. Mattingly poured a pitcher of ice water over his head and began vomiting bile. Ms. Mattingly reported Mr. Mattingly’s distress to the nurses, and the nurses attempted to reassure Ms. Mattingly and calm her down. At approximately 7:00 a.m., Nurse Matilukuro took over the care of Mr. Mattingly as his “day shift” nurse.

She was informed by the overnight nurse that Mr. Mattingly had been complaining of pain. Nurse Matilukuro evaluated Mr. Mattingly and observed that his stomach was distended and tender to the touch. This did “not look[] normal” for a post- operative patient, so Nurse Matilukuro telephoned Dr. Anand. Nurse Matilukuro informed Dr. Anand that Mr. Mattingly’s abdomen was distended and tender to the touch and that Mr. Mattingly was experiencing pain.

She further informed Dr. Anand that Mr. Mattingly’s abdomen was firm and that he had complained of shortness of breath. Dr. Anand ordered a STAT x-ray for Mr. Mattingly and told Nurse Matilukuro that Mr. Mattingly should have nothing by mouth except for ice chips.5 Dr. Anand testified at trial about Nurse Matilukuro’s approximately 7:00 a.m. telephone call. He recalled being told of Mr. Mattingly’s abdominal distension and pain. Dr. Anand found the distension concerning.

Dr. Anand had seen Mr. Mattingly the prior evening and his symptoms of pain and distension were, in Dr. Anand’s words, a “sudden change” from the prior day. Dr. Anand was concerned that Mr. Mattingly could have some 5 A STAT order is an order to be done immediately. 5 type of obstruction or other bowel issue. Dr. Anand explained that various issues could cause Mr. Mattingly’s symptoms, including “worsening ileus, stomach distension, small bowel distension and other things related to an anastomosis.” Dr. Anand explained that the “worst first” possibility of the potential diagnoses was a leaking anastomosis that could constitute a medical emergency. Dr. Anand acknowledged that a leaking anastomosis would allow bacteria to leak into the peritoneal cavity, which causes sepsis and potentially death if untreated.

Nurse Matilukuro entered the order for a STAT abdominal x-ray at approximately 7:30 a.m. At approximately 8:00 a.m., Nurse Matilukuro telephoned Dr. Anand again. She asked Dr. Anand when he would be coming in and advised Dr. Anand that Ms. Mattingly was upset and asking for Dr. Anand. Nurse Matilukuro further advised Dr. Anand that Mr. Mattingly had not been taken for his x-ray yet.

Dr. Anand told her that “he was coming” and “on the way.” At 8:05 a.m., Mr. Mattingly was showing abnormal vital signs, including a high respiratory rate, labored breathing, elevated body temperature, high peripheral pulse rate, and low blood pressure. Nurse Matilukuro placed another telephone call to Dr. Anand at approximately 9:00 a.m. Dr. Anand told Nurse Matilukuro again that he was on his way. Nurse Matilukuro transferred the call to Ms. Mattingly so that she could speak directly to Dr. Anand.

Ms. Mattingly told Dr. Anand about Mr. Mattingly’s symptoms, including that Mr. Mattingly was having trouble breathing, panting, and suffering from “a lot of pain.” Ms. Mattingly 6 told Dr. Anand that Mr. Mattingly had vomited and that his blood pressure was “very low.”6 Ms. Mattingly was “really concerned” because “[t]hings kept getting worse and worse” and she “kn[e]w low blood pressure is not good.” Dr. Anand told Ms. Mattingly, “I will be there at 10:00 to see you.” Mr. Mattingly was taken for his x-ray at approximately 9:20 a.m. When he returned to his room approximately thirty minutes later, he was “in bad shape” and “could hardly breathe.” Mr. Mattingly sat in the chair in his room while Ms. Mattingly remained with him. Mr. Mattingly was unable to lie down because it caused him additional difficulty breathing. While Mr. Mattingly and his mother were talking, Ms. Mattingly saw Mr. Mattingly stop breathing.

Mr. Mattingly began foaming at the mouth and his eyes rolled back. Ms. Mattingly called for the nurse. Nurse Matilukuro came into the room and observed that Mr. Mattingly was unconscious. At 10:49 a.m., the Rapid Response Team was called and a Code Blue was activated.

The code team quickly came into Mr. Mattingly’s room and attempted to revive Mr. Mattingly. A hospitalist physician telephoned Dr. Anand, who had still not yet arrived at the hospital, to inform him that Mr. Mattingly had “coded.”7 The same hospitalist physician had seen Mr. Mattingly in the hallway when he was waiting for his x-ray and had observed 6 Ms. Mattingly testified that she saw the blood pressure reading when Mr. Mattingly’s vitals were taken and the blood pressure reading was “very low . . . 70 over 50 or something like that.” 7 A hospitalist is a physician who specializes in providing and managing the care and treatment of hospitalized patients. Hospitalist, Merriam-Webster, http://www.merriam-webster.com/dictionary/hospitalist. 7 Mr. Mattingly in apparent distress, which the hospitalist found concerning. Dr. Anand told the hospitalist that he was on his way.

Mr. Mattingly could not be revived and was pronounced dead at 11:09 a.m. Dr. Anand did not arrive at the hospital until after Mr. Mattingly had died. Ms. Mattingly recalled that Dr. Anand came into the room at approximately 11:30 a.m. Dr. Anand told Ms. Mattingly, “I’m sorry.

This never should have happened.” After Mr. Mattingly’s death, Ms. Mattingly wanted an autopsy to be performed in order to learn the cause of death. Because of the circumstances surrounding Mr. Mattingly’s death, Ms. Mattingly “was leery” and “didn’t trust anybody.” She “wanted an honest opinion as to what happened and . . . was afraid [she] wouldn’t get [an honest opinion] from [WAH].” A request for an autopsy was made to the Office of the Chief Medical Examiner for the State of Maryland, but the request was denied. Ultimately, a private autopsy was arranged through Ms. Mattingly’s attorney. The autopsy was performed at a funeral home by autopsy technician Donnell McCullough and pathologist Edward Reedy, M.D.8 8 Mr. McCullough is trained in mortuary science and has worked for the Office of the Chief Medical Examiner for the State of Maryland for approximately twenty-nine years as the autopsy service supervisor.

Mr. McCullough explained that in this role, he is responsible for the day-to-day operations at the office. In addition, he worked for a separate company that performed private autopsies. Mr. McCullough estimated that he had participated in private autopsies for hundreds of families in addition to the “thousands” of autopsies in which he has participated with the Office of the Chief Medical Examiner. Mr. McCullough procured a pathologist, Dr. Reedy, to participate in the autopsy.

Mr. McCullough knew Dr. Reedy because Dr. Reedy had trained in the Office of the Chief Medical Examiner. 8 Mr. McCullough and Dr. Reedy performed the autopsy “blindly” in that they had no medical records and were asked to make independent findings. They did not know that any medical malpractice had been alleged in connection with Mr. Mattingly’s death and did not know that Dr. Anand or any other particular medical professional was involved. Mr. McCullough testified that this “blind fashion” is a typical way to perform an autopsy. During the autopsy, Mr. McCullough and Dr. Reedy created an incision into Mr. Mattingly’s abdomen and immediately observed a large amount of “milky, bloody looking fluid” which appeared abnormal and had a “foul odor” that “smelled like feces.”9 They observed blood clots on top of the intestines and removed the organs, which is typically done during an autopsy.

Small pieces of tissue were cut from the organs, placed in stock jars, and preserved in formaldehyde. The anastomosis was preserved as well. Mr. McCullough explained that this is the “normal procedure during any autopsy” and that “[t]he same procedure takes place” for autopsies performed by the Chief Medical Examiner for the State of Maryland. He further explained that at the Office of the Chief Medical Examiner, the stock jars were kept in a ventilated room with metal shelves, but that for private autopsies, the stock jars cannot be stored at the State facility.

Mr. McCullough testified that he had a similar ventilated room in his home where he would store samples from private autopsies, including those from Mr. Mattingly’s autopsy. Mr. McCullough testified that photographs were taken during the autopsy following the same procedure utilized at the Office of the Chief Medical Examiner. The autopsy was not videotaped. 9 At times during his testimony, Mr. McCullough did not specify which tasks during the autopsy were performed by himself and which by Dr. Reedy. 9 Mr. McCullough testified that, to his knowledge, WAH and Dr. Anand were not advised that the autopsy was going to be performed. Mr. McCullough testified that sometimes autopsies are videotaped if he is told in advance that it was a medical malpractice case, but that in this case he was unaware in advance that the autopsy was related to allegations of medical malpractice.

After the autopsy was completed, the organs were returned to the body. Ms. Mattingly subsequently chose to have Mr. Mattingly’s remains cremated. The complaint that ultimately gave rise to this appeal was filed in the circuit court on September 8, 2015, and discovery ensued. Prior to trial, Dr. Anand moved for summary judgment.

In support of his motion for summary judgment, Dr. Anand asserted that Ms. Mattingly engaged in spoliation of evidence by procuring a private autopsy and subsequently cremating Mr. Mattingly’s remains. Specifically, Dr. Anand emphasized that the Appellants were not permitted to observe the autopsy, the autopsy was not videotaped, the abdominal fluid was not tested, and the body was cremated. The circuit court denied the motion for summary judgment, explaining that the concerns raised about the autopsy went to its “weight and credibility” and were “[j]ury issues.” At trial, Ms. Mattingly presented the testimony of pathologist Stuart Graham, M.D.10 In preparation for his testimony, Dr. Graham read and reviewed Mr. Mattingly’s medical records, slides that had been prepared from the tissue samples removed during the autopsy, autopsy photographs, an autopsy report and amended autopsy report prepared by 10 Dr. Reedy did not testify at trial. 10 Dr. Reedy, and transcripts of depositions including those of Dr. Reedy, Mr. McCullough, Dr. Anand, and Nurse Matilukuro. Dr. Graham testified, to a reasonable degree of medical certainty, that Mr. Mattingly “died, without question, due to a failed surgical anastomosis or surgical joining of his sigmoid colon and rectum.” Dr. Graham explained that the “failure of the joining or anastomosis allowed the contents of his bowel, his stool to escape into his peritoneal cavity” which “caused an infection, which was clearly fatal.” Dr. Graham explained that “this case [was] so straightforward” because of “the presence of . . . 51 ounces of cloudy, bloody, dark fluid” in Mr. Mattingly’s peritoneal cavity.

Dr. Graham further testified that he had reviewed autopsy photographs as well as the preserved anastomosis itself, both of which showed “a gaping hole” of “about five millimeters” in the anastomosis. Based on his evaluation, Dr. Graham concluded that the defective anastomosis occurred prior to Mr. Mattingly’s death. Dr. Graham could not identify precisely when the leakage began. He concluded, however, that the “leakage was certainly going on for several hours” before Mr. Mattingly’s death.

Dr. Graham explained that “it would take hours and hours” for “1500cc or 51 ounces of this fluid to leak out of a hole . . . smaller than a fourth of an inch.” When asked whether there would have been any reason for blood samples to be taken during an autopsy, Dr. Graham testified that there was no “conceivable use for performing any tests on blood in a decedent who has died with the circumstances and findings that are known in this case.” Dr. Graham again emphasized that “the cause of death [wa]s certain” in that Mr. Mattingly’s death was caused by “a defect in a surgical anastomosis which result[ed] in 1500cc or 51 ounces of fluid leaking” which caused 11 “terminal septic shock associated with that defect.” Dr. Graham testified that under these circumstances, there was “no need or use” for blood or tissue testing. With respect to Mr. Mattingly’s life expectancy, Dr. Graham testified that, despite Mr. Mattingly’s co- morbidities, he would have lived for “a couple of decades” if he had not suffered from septic shock caused by the leaking anastomosis. Ms. Mattingly presented expert testimony on the surgical standard of care and causation from Peter Jackson, M.D., Chief of General Surgery at Georgetown University Hospital. Dr. Jackson opined that Mr. Mattingly “died of septic shock” caused by “an anastomotic leak from his colon.” Dr. Jackson testified that, in his expert opinion, Dr. Anand breached the standard of care by failing to promptly and properly respond to telephone calls he received from nursing staff on the morning of August 5, 2014.

Dr. Jackson further testified that “a leaking anastomosis with feculent stool pouring into [the] abdominal cavity is a surgical emergency” that “require[s] an immediate operation.” Dr. Jackson testified that there are steps that Dr. Anand could have taken before he even arrived at the hospital, explaining that Dr. Anand could have contacted an on-call physician at the hospital. With respect to timing, Dr. Jackson testified that after receiving a telephone call at approximately 7:00 a.m., an x-ray should have been done by 7:30 a.m., an examination should have been performed by 8:00 a.m., and “the operation starts at least by 9:00 a.m.” Dr. Jackson testified that in a surgical emergency like this, “you should be in the operating room within the hour.” Specifically, Dr. Jackson testified that, by 9:00 or 10:00 a.m., Mr. Mattingly should have been taken to surgery, where his incision should have been re-opened, the abdomen should have been washed, and a new colostomy should 12 have been performed. Dr. Jackson testified, to a reasonable degree of medical probability and certainty, that if the operation had been performed by 9:00 a.m. on August 5, 2014, Mr. Mattingly would still be alive. Dr. Jackson testified similarly that Mr. Mattingly would still be alive if the operation had been performed by 10:00 a.m.

The jury further heard expert testimony from Allison Cable (“Nurse Cable”), a Yale University nurse who testified as to whether Nurse Matilukuro breached the standard of care by failing to properly escalate the situation with Mr. Mattingly by timely calling the Code Blue Team or Rapid Response Team pursuant to WAH Chain of Command policy. Nurse Cable testified that it was her expert opinion that Nurse Matilukuro should have invoked the Rapid Response Team by 8:30 a.m. due to Mr. Mattingly’s shortness of breath, abdominal pain, sweating, and “extremely concerning” vital signs. The Appellants moved for judgment on the basis of spoliation at the close of Ms. Mattingly’s case and again at the close of evidence. In addition, WAH moved for judgment at the close of Ms. Mattingly’s case and again at the close of evidence on the basis that Ms. Mattingly failed to present expert testimony on the issue of causation as to the claim against WAH premised upon Nurse Matilukuro’s negligence.

The circuit court denied the motions. The Appellants requested that the trial court instruct the jury on spoliation, but the circuit court declined. The jury returned a verdict in favor of Ms. Mattingly against both Appellants and awarded damages in the amount of $1,350,000.00. The verdict was reduced pursuant to the statutory cap on non-economic damages to $740,000.

Judgment was entered jointly and severally against