$4 million awarded in medical lawsuit

Published 9:24 am Tuesday, April 30, 2013

WINTON – A Hertford County jury has awarded what is believed to be the largest medical malpractice settlement in the county’s history.

Last week, the estate of the late John Henry Perry was awarded $4 million as the result of a jury’s findings for the plaintiff, Bonita Smith Ellis. She is the niece of Perry and serves as the Administratrix of his estate.

Ellis – represented by the Winston-Salem law firm of Kennedy, Kennedy, Kennedy and Kennedy – filed two lawsuits in August of 2011. One was lodged against Onward Healthcare, Inc. and co-defendant Carolane Marsh. The other suit was filed against Dr. Michael Alston, a Murfreesboro-based physician.

Onward Healthcare (based in Wilton, CT) is a staffing company contracted in 2009 by Roanoke-ChowanHospital to supply healthcare professionals. R-CH (now a part of Vidant Health) was not named in the lawsuit.

According to the complaints filed by Ellis, her uncle was admitted to Northside Behavioral Health Services in Ahoskie on April 10, 2009. Ellis stated in her complaint that Perry had a history of diabetes.

On April 11, Alston ordered for Perry to receive 60 units of insulin glargine once a day at bedtime and receive insulin lispro four times a day. After receiving the initial dosages of insulin later that day, the complaint stated that Perry awoke on the morning of April 12 with a blood sugar level of 27, which resulted in a hypoglycemic episode. According to the complaint, this episode was the result of an insulin overdose.

The complaint alleges that Marsh, a resident of Hampton, VA employed as a nurse at that time by Onward Healthcare, failed to communicate with Alston that Perry’s blood sugar had dropped to 27. It also alleged that despite Perry being lethargic, Marsh “failed to act in such a way to treat this matter as a life-threatening situation.”

Perry went into a diabetic coma on April 13 and was taken to Roanoke-Chowan Hospital. There, according to the complaint, he remained on life support until April 24, the date of his death.

In the nursing malpractice complaint against Onward and Marsh, the lawsuit alleged Marsh was negligent in her care and treatment of Perry. The lawsuit went on to allege that Marsh failed to immediately contact Alston based on Perry’s condition; failed to record any notations in Perry’s medical chart to document his condition; failed to notify Ellis (listed as the family member to call in case of an emergency); that she created a life-threatening situation as a result of her negligence; failed to take emergency action to prevent Perry from going into a diabetic coma, and took advantage of her position of trust and confidence, thusly a breach of fiduciary duty. The suit alleged that Onward Healthcare was liable for the negligent acts and omissions of Marsh.

In the medical malpractice action lodged against Alston, the suit alleged that he was negligent in his care and treatment of Perry, to the point where he failed to properly and adequately supervise Marsh and failed to require her to communicate immediately with him when an emergency or medical crisis arose.

In its verdict, the jury agreed that Perry’s death was proximately caused by the negligence of Marsh and Alston, and that Marsh took advantage of a position of trust and confidence that brought about Perry’s death.

“This case reaffirms the right of families to make decisions in medical emergencies when the patient is unable to make medical decisions for himself,” said Harold L. Kennedy III, attorney for the plaintiff. “The verdict sends a strong message that healthcare providers cannot play God. This is a major victory for patient rights in North Carolina.”

A spokesperson for Onward Healthcare chose to make no comment on the outcome of the case. Alston also had no comment when asked about the outcome of the lawsuit.

However, two local healthcare officials did choose to speak about the case.

Kim Schwartz, CEO of Roanoke-Chowan Community Health Center (the organization which employs Alston), said that RCCHC allows its doctors to enter agreements as independent contractors with other medical entities. In this case, Schwartz said Alston had a personal contract with Roanoke-Chowan Hospital, which owns and operates Northside.

“As a whole, Roanoke-Chowan Community Health does not have a contract with what is now Vidant Health to supply doctors or nurses to fill any needs they have,” Schwartz said.

While she said that while the situation in this case is unfortunate, Schwartz stressed her personal feelings towards Alston, the lead medical official at RCCHC-Murfreesboro.

“He is a fine doctor; one of the best I’ve worked with. His first concern has been and remains to be with the patient,” Schwartz said.

RCCHC was not named in the lawsuit.

Sue Lassiter, President of Vidant Roanoke-Chowan Hospital, said that Vidant Healthcare has followed the events in the recent trial in HertfordCounty closely.

“We acknowledge that the jury found in favor of the patient’s family in that lawsuit,” Lassiter stated. “Vidant wishes the family well and we renew our condolences for their loss.

“We continue to believe that the care provided by Dr. Michael Alston to the patient was appropriate,” she continued. “Our administration and hospital staff know that Dr. Alston is a caring, compassionate, and outstanding doctor. We are confident that Dr. Alston and all the employees and contractors of Vidant will continue to provide quality healthcare to the residents of Hertford County.”