Date: 03-07-2014

Case Style: Kassie Carter v. HCA Health Services of Oklahoma, Inc. d/b/a OU Medical Center

Case Number: CJ-2011-7620

Judge: Bernard M. Jones

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Howard K. Berry and John Forbes

Defendant's Attorney: Charles H. Moody and S. Shea Bracken

Description: COMES NOW the Plaintiff Kassie Carter and alleges and states as follows:

1. She is the mother and next friend of Kywnn Carter, a minor.

2. This Court has jurisdiction over the parties and subject matter as the events complained of in this Petition occurred in Oklahoma County.

3. On or about April 22, 2011 Kywnn Carter was a patient at the QU Medical Center operated by the Defendant HCA. On or about that date an employee of the Defendants inserted a nasal gastric tube into the body of Kywnn Carter. She was negligent in failing to put it in the right position and it was negligently and improperly placed coiling upward into the esophagus instead of the stomach area. Said employee was acting in the course and scope of her employment by HCA

4. The Defendant, acting through its employees failed to check the position of the feeding tube and, instead, begin to do continuous tube feeding for several hours.

5. As a result of Defendant’s negligence in placing the feeding tube and in failing to monitor its position and failing to discover that it was in the wrong position, Kywnn Carter received tube feeding into her lungs for a period of time causing her severe respiratory distress and other medical damages.

6. The nasal gastric feeding tube was under the exclusive control of the Defendant. Said incidences do not occur absent negligence and Plaintiff was not negligent. Accordingly, a presumption of negligence exists here under the legal doctrine res ipsa loquitur.

7. The Plaintiff has consulted and reviewed the facts of this claim with a qualified expert and obtained a written opinion by a qualified expert and said expert has determined that Defendant’s actions are below the standard of care.

7. As a result of Defendants’ negligence the Plaintiff has suffered medical expenses, pain and suffering, future medical expenses and other damages of an ongoing nature entitling her to recover in excess of $75,000.000 along with costs, interest, attorney’s fees and any further relief to which she may be entitled. WHEREFORE, Plaintiff prays for judgment against these Defendants in excess of $75,000.00 along with costs, interest, attorney’s fees and any further relief to which she may be entitled.

The Pre-Trial Order entered by the Court provided, in part:

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Plaintiff: On or about April 22, 2011 Kwynn Carter was a patient at OU Medical center, operated by Defendant RCA Health Services of Oklahoma, when an employee of Defendant improperly inserted a nasal gastric tube into Kwynn. The tube coiled upward into the esophagus

instead of into the stomach area and delivered food into the lungs. The subject employee was acting within the course and scope of her employment at the time.

Defendant: This case is a claim for Medical Malpractice. Kassie Carter, mother and next friend of Kwynn Carter, claims that OU Medical Center, through its alleged agents and/or employees, misplaced a feeding tube into Kwynn’s esophagus that caused food to enter into her lungs. Ms. Carter claims that as a result of the negligence of the Defendant, Kwynn aspirated and further medical treatment was required. The Defendant OU Medical Center denies that it was negligent in the care and treatment rendered to Kwynn Carter and contend that it met or exceeded the applicable standards of care at all times. The Defendant OU Medical Center further contends that Kwyrm did not incur any further medical bills or require a longer hospital stay as a result of the feeding tube incident.

3. Plaintiffs Contentions:

A. Theories of Recovery: On about 4-22-11 the subject employee negligently inserted a feeding tube into Kwynn, delivering food into Kwynn’s lungs resulting in personal injuries to Kwynn entitling her to recover damages. The subject employee was at all times acting within the course and scope of her employment and her employer is liable for its employees so acting so is liable to Plaintiffs for their damages. The treatment Kwynn received fell below the standard of care and the presumption of negligence exists under the doctrine res ipsa loquitur.

B. Damages: Plaintiff seeks to recover damages of medical expenses, pain and suffering, respiratory and other personal damages, both temporary and permanent, and diminished capacity.

4. Defendant’s Contentions:

A. OU Medical Center

1. General denial of negligence

2. OU Medical Center met or exceeded the standard of care

3. OU Medical Center's agents, servants, and/or employees at all times met or exceeded the applicable and appropriate standards of care.

4. Plaintiff has failed to make a claim of negligence against OU Medical Center.

5. the physical condition complained of by Kywnn Cater and any resulting injuries or damages suffered by Kwynn Carter were an unavoidable casualty over whihc OUMC had no control.

6. Any injuries and damages complained of were the natural, probable, and proximate results of the physical condition of Kwynn Carter which she may have sustained, were not the result of any act or omission of OUMC.

7. Lack of proximate cause.

8 Res ipsa loquitur does not apply to the facts of this case.

9. Defendant OUMC specifically denies the damages alleged by Plaintiff and demands strict proof thereof.

10. Entitled to all caps, privileges and protection of the Tort Reform Act Legislation.

11. Limitation of damages concerning medical bills.

12. Limitation of recoverable damages.

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Outcome: ORDER APPROVING SETTLEMENT AGREEMENT WITH MINOR AND DISMISSAL WITH PREJUDICE

On this day of 6th day of March, 2014, this matter comes on before me, the undersigned Judge of the District Court; Plaintiff Kwynn Carter, a minor, appears by and through her Mother and Next Friend, Kassie Carter, and by and through counsel of record, Howard K. Berry III; and the Defendant, CU Medical Center, being present by and through its counsel of record, S. Shea Bracken. Thereupon evidence and testimony was introduced and upon due consideration of the evidence and testimony and being fully advised in the premises, the Court finds as follows:

The parties were involved in a medical incident which occurred on or about April 22, 2011, and as a result thereof, the minor Plaintiff sustained injuries and has made claims against the Defendant. These claims are disputed both as to liability and damages.

The Plaintiff, Kassie Carter, is the parent of the minor child and is the proper party to act as Next Friend for said minor.

A compromise settlement has been reached wherein the Defendant, CU Medical Center, has offered to pay the minor Plaintiff by and through her Mother and Next Friend, the sum of Fifty Thousand and No/I 00 Dollars ($50,000.00) as full and final settlement of all claims made by said minor against the Defendant, OU Medical Center, for all injuries and damages sustained by the minor Plaintiff together with any and all damages which may arise in the future and/or for injuries known or unknown resulting from said accident, and all other claims which derive from the injuries of the minor child.

The Plaintiffs have reached an informed decision to waive their right to a jury trial in which they could receive more money, less money or no money at all. The Plaintiffs have been informed of the minor Plaintiff’s right to proceed on her own behalf after she reaches the age of majority until the age of 19 years, and they have reached an informed decision to waive the minor Plaintiff’s right to a jury trial.

The Plaintiffs are fully aware of the consequences of settlement of this matter and are aware that once the Court approves this settlement, any and all claims of the parents in their individual capacities and any and all claims of the minor shall be forever barred. The Plaintiffs are also aware that any and all lien holders, and providers of any services, known and unknown, must be compensated from the proceeds of this settlement.

The Plaintiffs have not been forced or coerced, in any manner, to enter into this settlement.

The Plaintiffs understand the Defendant shall be released from any and all liability to Plaintiffs as a result of said incident.

The Mother is the proper person to execute any documents on behalf of the minor Plaintiff in relation to this approved settlement; and Kassie Carter is the proper person to receive any money paid pursuant to this settlement agreement for the use and benefit of the minor Plaintiff.

WHEREFORE, the Court does hereby approve the above settlement agreement, and dismisses with prejudice any and all claims of the Plaintiffs against the Defendant. The Court transfers this case to the Probate Division of the District Court for further supervision until such time as the minor Plaintiff reaches the age of eighteen (18) years. The minor’s date of birth is October 29, 2010.

Plaintiff's Experts:

Defendant's Experts: Dr. Phil Barton, M.D., Holly Tyree, R.N.

Comments: