ARKANSAS WOMAN FILES WRONGFUL DEATH SUIT AGAINST BAPTIST HEALTH

Posted on : June 29, 2017
wrongful death cases in Texas

IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS

9TH DIVISION

MARTHA AUSTIN, as SPECIAL

ADMINISTRATRIX of the ESTATE of DAN E.

AUSTIN, Deceased PLAINTIFFS

VS. 60-CV-13-101

BAPTIST HEALTH d/b/a BAPTIST HEALTH

MEDICAL CENTER-LITTLE ROCK;

CONTINENTAL CASUALTY COMPANY;

ARCH INSURANCE COMPANY; ADMIRAL

INDEMNITY COMPANY; REGIONS

FINANCIAL CORPORATION AS TRUSTEE

FOR THE TRUST AGREEMENT FOR THE

BAPTIST HEALTH PROFESSIONAL AND

GENERAL LIABILITY SELF INSURANCE

PROGRAM; DEREK MARKHAM, R.N.; and,

JOHN DOE 1; JOHN DOE 2; and, JOHN DOE 3 DEFENDANTS

 

FIRST AMENDED COMPLAINT

 

Comes the plaintiff, Martha Austin, as Special Administratrix of the Estate of Dan E. Austin, Deceased, by and through their attorneys, Law Offices of Eric D. Wewers, PLLC and Rochelle McCullough LLP., and for their complaint against the Defendants, states as follows:

1. That the plaintiff, Martha Austin (hereinafter referred to as Marty Austin), was at the time of the occurrence of all the events referred to herein, a resident of Poyen, Grant County, Arkansas.

2. That the decedent, Dan E. Austin, at the time of the occurrence was a resident of 724 Grant 333, Poyen, Grant County, Arkansas.

3. That the deceased, Dan E. Austin, died on August 23, 2011, at Baptist Health Medical Center, Little Rock, Arkansas, at the age of 67 years.

4. That the decedent, Dan E. Austin, was survived by the following heirs and beneficiaries at law:

  • Martha Austin 67 Wife 724 Grant 333, Poyen, AR
  • Steve J. Austin 46 Son 362 Grant 333, Poyen, AR

5. That the plaintiff, Martha Austin, was duly appointed Special Personal Representative of the Estate of Dan E. Austin, deceased, on October 3, 2011, by Order of the Probate Court of Grant County, Arkansas.

4. That the defendant, Baptist Health d/b/a Baptist Health Medical Center- Little Rock (BHMCLR), was, upon information and belief, at all times pertinent to the events referred to herein, a domestic, non-profit corporation, organized and existing under the laws of the State of Arkansas (filing number 100005483) and located at 9601 I-630, Exit 7, Little Rock, Arkansas, 72205.

5. That, upon information and belief, the registered agent for the defendant, BHMCLR, is Russell D. Harrington, Jr., 9601 I-630, Exit 7, Little Rock, Arkansas 72205.

6. That the defendant, BHMCLR, was, upon information and belief, at all times pertinent to the events referred to herein, insured through defendants, Continental Casualty Company (CCC), Arch Insurance Company (Arch) and Admiral Indemnity Company (Admiral), which served as liability carrier(s) for BHMCLR, and, as such, is a proper party to this action under the direct action statute, Ark. Code Ann. § 23-79-210 (a) (2).

7. That, upon information and belief, the registered agent of service for the defendant, CCC, is, The Corporation Co., 124 W. Capital Ave., Suite 1900, Little Rock, Arkansas, 72201.

8. That, upon information and belief, the registered agent of service for the defendant, Arch, is, The Corporation Co., 124 W. Capital Ave., Suite 1900, Little Rock, Arkansas, 72201.

9. That, upon information and belief, the registered agent of service for the defendant, Admiral, is, The Corporation Co., 124 W. Capital Ave., Suite 1900, Little Rock, Arkansas, 72201.

10. That the defendant, Regions Financial Corporation as Trustee of the Trust Agreement for the Baptist Health Professional and General Liability Self Insurance Program (RFC), is a foreign corporation and may be served through its registered agent of service, Corporation Service Company, 101 S. Spring Street, Suite 220, Little Rock, Arkansas, 72201.

11. That the defendant, Derek Markham, R.N., (Markham), was, upon information and belief, at all times pertinent to the events referred to herein, a registered nurse practicing in the field of nursing at BHMCLR.

12. That the defendant, Markham, at all times pertinent to the events referred to herein, upon information and belief, was an agent, servant and/or employee of the defendant, BHMCLR.

13. That the defendant, Markham, was, upon information and belief, at all times pertinent to the events referred to herein, regularly practicing as a nurse within the course and scope of his employment by the defendant, BHMCLR.

14. That all the negligent actions, commissions, inactions, and/or omissions of the defendant, Markham, referred to in this complaint, occurred in Pulaski County, Arkansas, and are vicariously imputed to the defendant, BHMCLR, under the legal doctrine of Respondeat Superior and/or actual or apparent agency authority.

15. That all the negligent actions, commissions, inactions, and/or omissions of the defendant, Markham, referred to in this complaint, occurred in Pulaski County, Arkansas, and are vicariously imputed to the defendants, CCC, Arch, and Admiral, under the legal doctrine of Respondeat Superior and/or actual or apparent agency authority.

16. That pursuant to Ark. Code Ann. §16-56-125, any person, for the purpose of tolling the statute of limitations, may file a complaint stating his or her cause of action in the appropriate court of this state, whenever the identity of the tortfeasor is unknown.

17. That, in the alternative, the name of an unknown tortfeasor, individual person or entity, shall be designated by the pseudo-name John Doe. Thus, in this case, John Doe 1-3, in the alternative, is the official name of any individual person defendant or entity with which any individual person defendant may be associated. Furthermore, if there is more than one (1) such unknown tortfeasor person or entity, the use of additional John Does is also appropriate.

18. That upon determining the identity of any current unknown tortfeasor person or entity, plaintiff will amend the complaint by substituting the real name for the pseudo-name.

19. That the plaintiff has attached hereto the affidavit of plaintiff’s attorney that the identity of the tortfeasor(s) is unknown pursuant to Ark. Code Ann. ’16-56-125.

20. That all the acts of medical negligence of all defendants referred to herein in this complaint occurred in Little Rock, Pulaski County, Arkansas, at Baptist Health Medical Center-Little Rock.

21. That this Court has jurisdiction over this cause.

22. That this Court has jurisdiction over the parties to this action.

23. That the venue of this action is properly placed with this Court.

24. That this action is timely filed within the applicable statute of limitations.

25. That this action is brought pursuant to the Arkansas Medical Malpractice Act (Ark. Code Ann. §16-114-201 et seq.), the Arkansas Survival of Actions Act (Ark. Code Ann. § 16-62-101), the Arkansas Wrongful Death Act (Ark. Code Ann. § 16-62- 102), and other applicable laws.

26. That Dan E. Austin was admitted to BHMCLR on July 25, 2011, with pneumonitis.

27. That Dan E. Austin was placed on a ventilator and was given two central venous lines for the administration of antibiotics and dialysis. A Quinton catheter was inserted for the dialysis.

28. That on August 5, 2011, Dan E. Austin was taken off the ventilator and was scheduled to be transferred out of ICU on August 9, 2011, to a regular floor room.

29. That on August 9, 2011, it was ordered that the Quinton catheter used for dialysis to be removed. The defendant, Markham, was the nurse that removed the Quinton catheter at 11:50 a.m. on August 9, 2011.

30. That immediately upon removal of the Quinton catheter, the defendant, Markham, documented hearing a sucking sound from the opening in Dan E. Austin’s chest.

31. That Dan E. Austin began to suffer respiratory distress after the removal of the Quinton catheter.

32. That Dan E. Austin was placed back on a ventilator due to suffering a bilateral stroke caused by air embolisms as a result of the removal of the Quinton catheter.

33. That previous to the anticipated transfer from ICU, Dan E. Austin had sent his wife, Marty Austin, to Wal-Mart to get some items for his transfer to the regular floor. While Marty Austin was at Wal-Mart, she received a call from defendant, Markham, telling her she needed to get back to the hospital. Upon her arrival at the hospital, Dan E. Austin could not move his left side.

34. That Marty Austin went to Dan E. Austin’s right side to ask if he knew who she was. Dan E. Austin said “Marty,” squeezed her hand and shortly after that, could not move or speak anymore due to one or more stroke(s).

35. That with the exception of approximately 3 days, Dan E. Austin was administered Fentanyl beginning August 10, 2011, until his death.

36. That Dan E. Austin’s neurological consult noted him to blink at threats and grimace to pain.

37. That on August 23, 2011, Dan E. Austin died as a result of the stroke(s) proximately caused by the negligent removal of the Quinton catheter.

38. That the death of Dan E. Austin was proximately caused by the negligence of the defendants herein.

39. That had proper care and skill been utilized during Dan E. Austin’s hospitalization at BHMCLR, Dan E. Austin would not have suffered a stroke on or about August 9, 2011, and death.

40. That had proper care and skill been utilized during Dan E. Austin’s hospitalization at BHMCLR, Dan E. Austin would have made a full recovery.

41. That the defendant, BHMCLR, was negligent, in its care of Dan E. Austin, during his hospitalization from July 25, 2011, until his death on August 23, 2011, and the acts of negligence and deviations from the accepted standard of care by the defendant, BHMCLR, in its care of Dan E. Austin, include, but are not limited to, the following acts:

  • a) Negligently failed to properly educate, train, supervise, and control their nurse;
  • b) Negligently failed to have appropriate policies, procedures, and protocols in place for the proper care and removal of a Quinton or similar catheter and/or to see to it that these policies, procedures, and protocols were properly and timely enforced and followed by all nursing personnel in order to properly monitor and treat a patient such as Mr. Austin;
  • c) Negligently failed to provide timely and appropriate monitoring and care to Dan E. Austin; and,
  • d) Negligently failed to comply with the accepted standard of care for a hospital in its care of Mr. Austin at all times.

42. That in the providing of care by the defendant, BHMCLR, to Dan E. Austin, this defendant hospital had the duty to comply with the National Quality Forum’s list of Serious reportable Events, commonly referred to as “Never Events” as utilized by CMS. CMS announced that in October 2008, Medicare would no longer pay the extra cost of treating categories of conditions that occur while the patient is ion the hospital. One such condition was air embolism. The failure to comply with the Never Event standards of preventing an air embolism are additional evidence of negligence in the care and treatment of Dan E. Austin by BHMCLR and Derek Markham.

43. That in the providing of care by the defendant, BHMCLR, to Dan E. Austin, this defendant hospital had the duty to properly educate, train, supervise, and control its personnel, to have appropriate policies, procedures and protocols in place for proper care, to provide timely and appropriate monitoring to patients such as Dan E. Austin, and were under a duty to use the care and skill ordinarily exercised and possessed in like cases by competent institutions of their type doing business in the same or similar locality under the same or similar circumstances.

44. That the negligent deviations from the accepted standard of care for a registered nurse committed by the defendant, Derek Markham, R.N., in his care of Dan E. Austin, include, but are not limited to, the following deviations:

  • a) Negligently removed the Quinton catheter from Mr. Austin in such a manner as to allow room air to enter the bloodstream;
  • b) Negligently failed to follow proper nursing policies, procedures and protocols in removing the Quinton catheter, in such a manner as to prevent an air embolism; and,
  • b) Negligently failed to comply with the accepted standard of care for a registered nurse in his care of Mr. Austin at all times.

45. That as a proximate result of the acts of medical negligence of all the defendants, and concurring acts of negligence of all defendants, the plaintiff is entitled to recover damages for the injuries and wrongful death of Dan E. Austin, deceased, in an amount to be set by a jury in excess of the amount for federal court diversity jurisdiction, for the injuries due to and wrongful death of Dan E. Austin, deceased, and all elements of damages, as allowed by Arkansas law, including, but not limited to:

  • a) Past medical expenses of the deceased, Dan E. Austin;
  • b) Wrongful and untimely death of the deceased, Dan E. Austin;
  • c) The value of the loss of life of the deceased, Dan E. Austin;
  • d) Past physical pain and suffering and mental anguish suffered by the deceased, Dan E. Austin;
  • e) Mental anguish, grief and despair of the beneficiaries of the deceased, Dan E. Austin;
  • f) Funeral and related expenses for the deceased, Dan E. Austin;
  • g) Loss of pecuniary damages, including money, goods, and services that the deceased, Dan E. Austin, would have contributed to his wife;
  • h) Loss of consortium (society, services, companionship, and marriage relationship) suffered by Marty Austin, and,
  • i) All other damages recoverable under the Arkansas wrongful death statute with all such damages to be set by a jury in excess of the amount required for federal court diversity jurisdiction against each defendant.

46. That the plaintiff moves the court for a pretrial ruling that the Act 649 entitled the “Arkansas Civil Justice Act” of 2003, particularly A.C.A. § 16-55-201, 16- 55-202 and 16-55-203, are unconstitutional insofar as they modify the doctrine of joint and several liability. This is based on the following:

  • (a) A.C.A. § 16-55-201, 16-55-202 and 16-55-203 of the A.C.A. were enacted as part of the Arkansas Civil Justice Act signed into law on or about March 25, 2003. These provisions of the Act modify the law of joint and several liability.
  • (b) § 16-55-201, 16-55-202 and 16-55-203 of the A.C.A. violate Article V, Section 32, as amended by Amendment 26, of the Arkansas Constitution, which provides in pertinent part, that the Arkansas General Assembly, aside from workers compensation legislation, shall not enact any law limiting the amount of damages to be recovered for injuries.
  • (c) § 16-55-201, 16-55-202 and 16-55-203 of the A.C.A. violate the constitutional requirement of separation of powers of Article IV, sections 1, 2 of the Arkansas Constitution.
  • (d) § 16-55-201, 16-55-202 and 16-55-203 of the A.C.A. purport to vest the courts of Arkansas with authority to adjudicate disputes with non-parties, in violation of Article II, sections 13 and 21.
  • (e) § 16-55-201, 16-55-202 and 16-55-203 of the A.C.A. purport to grant special immunities to one class of persons, in violation of Article II, sections 3, 13, 18, and 21 and Article V, section 25 of the Arkansas Constitution.
  • (f) § 16-55-201, 16-55-202 and 16-55-203 of the A.C.A. violate the plaintiff’s right to trial by jury protected by Article II, section 7 of the Arkansas Constitution.
  • (g) § 16-55-201, 16-55-202 and 16-55-203 of the A.C.A. violate the constitutional prohibition against special legislation of Article XIV, of the Arkansas Constitution.
  • (h) § 16-55-201, 16-55-202 and 16-55-203 of the A.C.A. violate the open courts provision of Article II, section 13 of the Arkansas Constitution.
  • (i) § 16-55-201, 16-55-202 and 16-55-203 of the A.C.A. violate the Due Process Clauses of the Arkansas Constitution and the Fourteenth Amendment to the United States Constitution. It is fundamentally unfair to impose limitations on the damages that may be recovered by personal injury plaintiffs lawsuits based upon a perceived crisis relating to the availability of medical malpractice liability insurance. Moreover, it is fundamentally unfair to limit the damages an accident victim may recovery yet require the victim to reimburse the employer or it’s workers compensation insurer an amount unadjusted by the percentage of fault provisions of Arkansas law or without consideration of the limitations of recoverable medical expenses.

47. That the plaintiff respectfully submits and alleges that the provisions of Ark. Code Ann. §16-114-206 limiting expert testimony and setting the burden of proof required to be met, and §16-114-208 requiring periodic payments of a judgement are unconstitutional for the reasons set forth above, and that such invade the Rule making power of the Supreme Court and are inconsistent with the Arkansas Rules of Civil Procedure and of Evidence. The statutory requirements violate the supersession of the Rules of the Supreme Court.

48. That for the reasons cited above, plaintiff moves the court to declare that the above-mentioned Code sections are unconstitutional and have no application to the case at bar, and do not meet the requirements of “strict scrutiny” required for their validity to stand.

49. That a copy of this Complaint is forwarded to the Honorable Dustin McDaniel, Attorney General for the State of Arkansas, to place Attorney General McDaniel on notice of the challenge to the constitutionality of said provisions.

50. That the plaintiff specifically reserves the right to amend this complaint and plead further in this case.

51. That the plaintiff respectfully demands a jury of twelve (12) persons to try this case.

WHEREFORE, Plaintiffs respectfully pray that they have and recover judgment from and against the Defendants for compensatory damages as the proof may establish, to be in an amount to be set by the jury in excess of the amount required for federal court diversity jurisdiction for all elements of damages as set forth herein and as allowed by law, plus their costs and all other relief to which they may be entitled.

Respectfully submitted,

Greg Bevel

ROCHELLE MCCULLOUGH, L.L.P.

325 North Saint Paul Street #4500

Dallas, Texas 75201

(214)953-0182

– – – – AND – – – –

Eric D. Wewers

Law Offices of Eric D. Wewers, PLLC

415 N. McKinley St., Suite 1000

Little Rock, AR72205

(501) 907-7790

___________________________

Eric D. Wewers

Arkansas Bar #94098

Posted in : Gregory H. Bevel

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