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Date: 01-23-2014

Case Style: Evelyn Carson v. James Alvis, M.D. and Community Hospital, LLC

Case Number: CJ-2013-6411

Judge: Lisa T. Davis

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Rick Dane Moore and Shanda L. Adams

Defendant's Attorney: David McPhail and Anden M. Sharpe

Description: PETITION: CAUSES OF ACTION IN MEDICAL MALPRACTICE, PROFESSIONAL NEGLIGENCE

Comes now the Plaintiff, Evelyn Carson, and by and through her attorneys, states the following causes of action in Medical Malpractice, Professional Negligence, Breach of Contract, Battery. For her causes of action, the Plaintiff alleges and states as follows:

FACTS COMMON TO ALL CAUSES OF ACTION

1. Plaintiff is a resident of Cleveland County, State of Oklahoma.

2. Defendant James Alvis, M.D. is a physician practicing in Oklahoma County, State of Oklahoma.

3. Defendant Community Hospital is a domestic Limited Liability Corporat on, licensed to do business in the State of Oklahoma and has a place of business located at 3100 Sw 89th Street, Oklahoma City, OK

4. Plaintiff was a patient of James Alvis, M.D. and of Community Hospital, beginning in December 2012.

5. That on or about the 24l of December 2012 through the 2’’ of February 2)13, the Plaintiff was a patient of the Defendant doctor and Defendant facility whe a she sustained an injury due to substandard care.

6 That on or about the 24th of December 2012, the Plaintiff underwent spinal surgery performed by Defendant Dr. Alvis, at the facilities of Defendant Community Hospital, LLC.

7. Defendant and its employees owed Plaintiff a duty of care to provide qua] ity medical care at the level of the national standard of care.

8. Defendant breached the aforementioned duty by, among other things, failing to note a cerebrospinal fluid leak caused by a puncture to her spine which occurred during Plaintiff’s surgery on the 24th of December, and by thereafter failing to adequately end that leak when Plaintiff returned to the hospital on a number of occasions, exposing Plaintiff to various bacterial infections including meningitis.

9. Defendant Community Hospital, LLC is responsible for the acts of its employees under a theory of respondeat superior.

10. That as a direct cause of Defendant Dr. Alvis’s breach of duty and negligent acts to the Plaintiff, Plaintiff was injured and has suffered certain temporary and permanent and personal injuries and those incurred mental and physical pain and suffering past, present, and future. Plaintiff has incurred medical bills, lost wages, loss of learning capacity, loss of enjoyment of life and permanent impairment to her whole body, all caused by the negligence of the Defendants and all to the detriment of the Plaintiff

FIRST CAUSE OF ACTION: MEDICAL MALPRACTICE—DEFENDANT DR JAMES ALVIS AND DEFENDANT COMMUNITY HOSPITAL LLC,

Plaintiff realleges, restates, and adopts all contentions and allegations made in relation to all causes of action, and for this, her First Cause of Action, further states:

1. Dr. James Alvis is a board-certified surgeon, and practices in Oklahoma County, State of Oklahoma.

2. At all times, Dr. James Alvis indicated to the Plaintiff that he is competent and experienced in the performance of surgeries such as that which Plaintiff underwent on the 24 of December 2012.

3. That during the surgery on the 24th of December 2012, Plaintiffs dma wa3 punctured, causing a cerebrospinal fluid leak, which Defendant failed to notice at the time of such surgery.

4. That on or around the 6th of January 2013, the Plaintiff returned to Defendant, who perfonned a second operation, wherein he found the puncture in Plaintiffs dura and spinal fluid leak. He proceeded to close the puncture in her dura and to repair the spinal fluid leak. Plaintiff was released from the hospital on or around the 10th o1 January 2013.

5. That thereafter, on or around the 15th of January, Plaintiff returned to Defendant Dr. James Alvis, complaining of further fluid leaks and pain.

6. That on or around the 16th of January 2013, Plaintiff underwent an aspiration and collection of spinal fluid for testing.

7. That the testing on the 16th of January indicated that Plaintiff had some Streptococcus-B infection in her spine and she was referred to infectious disease specialists and prescribed antibiotics.

8. That thereafter, on or around the 28th of January 2013, Plaintiff returned to the hospital and was admitted once more. She underwent further surgery to repair the leaking spinal fluid.

9. That the Plaintiff, sometime between the 24th of December 2012 when shc underwent her initial surgery and the 29th of January 2013, contracted streptococcal meningitis.

10. That Plaintiff has contracted since that time infectious diseases, and that she has required the care of infectious disease specialists, whom she saw through August 2’)t3.

11. That Plaintiffs need for repeated invasive spinal surgeries and her contraction of meningitis was directly and proximately caused by the negligence and lack of care of Defendant Dr. Alvis in performing his initial surgery on the 24th of December 2012, during which Plaintiff’s dura was punctured in at least two places, and which were not immediately repaired.

12. That Plaintiff’s injuries are directly and proximately caused by the negligence of the Defendant Community Hospital, which failed to properly oversee the treatment of Plaintiff by Defendant Dr. Alvis, and which failed to provide adequate relief to her symptoms beginning on the of January 2013.

SECOND CAUSE OF ACTION: PROFESSIONAL NEGLIGENCE—DEFENDANT DR. JAMES ALVIS AND DEFENDANT COMMUNITY IEOSPflAL, LLC.

Comes now the Plaintiff and for cause of action against the defendants, Community Hospital LLC and James Alvis M.D., on this her second cause of action, readopts, realleges, and restates the allegations and facts common to all causes of action and the facts and allegations made in relation to her first cause of action, and, in addition, alleges and states as follows:

1. Plaintiff alleges that the defendant, James Alvis, M.D., accepted plaintiff as his patient and further alleges that he acted negligently and carelessly in advising the Plaintiff and in removing the materials from Plaintiff’s body and in diagnosing and treating plaintiff’s condition, all of which resulted in plaintiffs injuries and damages.

2. Plaintiff alleges that her injuries and damages were a direct result of and proximately caused by the negligence of the defendant, Dr. Alvis, in the following pan iculars, to wit:

A. He failed to inform himself of the dangers inherent in the surgery which he was performing, namely the danger of punctures to her spine and leaking Cerebrospinal fluid.

B. He failed to advise or warn plaintiff of the nature of her potential sprnal injury, or the danger of infections related to continued CSF drainage.

C. He failed to properly perform the surgery on the 24 of December 2012, resulting in punctures to the Plaintiffs spine and spinal fluid leaking and drainage.

D. He failed to properly repair the damage to Plaintiff’s spine on the 6t) L of January 20 13, and sent Plaintiff home with punctures remaining in her spine

E. He failed to adequately diagnose the Plaintiff’s condition on the lS of January 2013, and Plaintiff was thereafter found to have contracted meningiii&

F. Plaintiff was forced to undergo further spinal surgery on the 28th of January 2013, and has been treated since that time by infectious disease specialists.

3. Plaintiff alleges that her injuries were a direct result of and proximately caused by the negligence of the defendant Community Hospital, in the following particulars, to wit:

A. They failed to properly supervise Defendant, Dr. Alvis, in his proceeding to treat plaintiff

B. They failed to properly supervise Defendant, Dr. Alvis, or to assign another physician to care for the Plaintiff, despite her multiple return visits to correct the condition which was caused by Dr. Alvis during surgery on the 24th ‘f December 2012.

C. They failed to properly supervise the Defendant, Dr. Alvis, in his performance of surgery on the 24th of December 2012, which resulted in Plaintiff’s ongoing and chronic pain, leakage of spinal fluid, and ultimately ongoing treatme at for meningitis and other infectious diseases.

D. They failed to properly evaluate the Plaintiff’s claims and complaints regarding her recurring pain, and did not take any steps to rectify the situation once it became known to them.

4. The Plaintiff alleges that the actions of the Defendants, including Dr. Alvis’s failure to properly perform the procedure on the 24tb of December, the 6th of January, and the 15th of January, and Dr. Alvis’s failure to properly diagnose Plaintiff on her multiple follow- up visits, and the failure of Community Hospital to properly supervise ano the failure of both defendants to follow up the Plaintiff’s complaints of continued discomfort, constitute gross negligence and reckless disregard for the well-being and health of this Plaintiff, and that as such, exemplary damages are appropriate as to both I )efendants.

5. Plaintiff alleges that the negligence of the Defendant Community Hospital and the negligence of the defendant Dr. Alvis, concurred and commingled and were all direct, proximate, and producing cause of plaintiffs injuries as aforesaid. That all the producing causes above alleged concurred and commingled and were all joint, direct, proximate, and producing causes of plaintiffs injuries and resulting damages.

6. Plaintiff alleges that because of all the foregoing and as a direct and proximate result of the negligence of the defendants, plaintiff suffered injuries and damages all as alleged in the Facts Common to All Causes of Action for which she claims damages against the defendants Community Hospital and the defendant, Dr. Alvis on this her Second Cause of Action.

7. Plaintiff alleges that her injuries were directly caused by procedures which were performed solely by the defendant, James Alvis, M.D., and which were under the sole and exclusive control of said Dr. Alvis, who was acting in hi.s capacity as a physician and an agent for defendant Community Hospital, LLC, at all times herein mentioned.

8. Plaintiff alleges that the injury she suffered is of the kind that does not ordinarily occur under the circumstances, and could not have occurred in this instance absent negligence on the parts of defendants Dr. Alvis and Community Hospital. To wit:

A. Plaintiff contacted defendant, Dr. Alvis, as aforementioned, with the intention that her spinal injury and ongoing spinal pain be treated.

B. That Dr. Alvis, the Defendant, advised Plaintiff that the proposed surgery was the proper course of treatment for her condition, and that the Plaintiff beb eyed the Defendant and consented to the procedure, but was not aware of the risk of injury to her spine or the risk of draining spinal fluid or infection.

C. At least two punctures were made in the Plaintiff’s spine on the 24th of December 2012, and Dr. Alvis knew or should have known at the time of that surgery that the Plaintiffs spine had been punctured.

D. The Defendant should have checked and ensured that there were no punctures to the Plaintiffs spine during his initial surgery, and he failed to do so.

E. The Defendant should have investigated further upon his finding of a puncture in the Plaintiff’s spine on the 6th of January 2013, and failed to do so.

F. Both Defendants failed to act adequately to prevent the Plaintiff from contracting infections following findings that she was suffering from a puncture to her spine and a spinal fluid leak. 0. Both defendants failed to adequately treat the Plaintiff when she returned to the hospital on the 15th ofJanuary 2013.

9. Plaintiff alleges that because of all the foregoing and as a direct result of the negligence of the defendant Dr. Alvis, and of the defendant Community Hospital, as aforesaid, plaintiff suffered injuries and damages all as alleged in her first cause of action for which she claims damages against the defendants Dr. Alvis and Community Hos pital, on this her second cause of action.

WHEREFORE, premises considered, Plaintiff prays for judgment against the Defendant, for actual damages in a sum in excess of Ten Thousand Dollars ($10,000.00) together with interest thereon, exemplary damages, the costs of this action, a reasonable attorney fee, and such other relief as this Court may deem just and proper.

DEFENDANT COMMUNITY HOSPITAL, L.L.C.’S ANSWER TO PLAINTIFF’S PETITION

COMES NOW the Defendant, Community Hospital, L.L.C., appearing by and through its undersigned attorneys of record and answers Plaintiff’s Petition as follows:

I.

Each and every allegation in Plaintiff’s Petition is denied, unless specifically admitted in Defendant’s Answer.

II.

Defendant Community Hospital is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 1 of that portion of Plaintiff’s Petition entitled “Facts Common to All Causes of Action.” Therefore, said allegations are denied.

III.

Defendant Community Hospital admits the allegations contained in paragraphs 2 and 3 of that portion of Plaintiff’s Petition entitled “Facts Common to All Causes of Action.”

Iv.

Defendant Community Hospital denies the allegations contained in paragraphs 4 and 5 of that portion of Plaintiffs Petition entitled “Facts Common to All Causes of Action.”

V.

With regard to the allegations contained in paragraph 6 of that portion of Plaintiffs Petition entitled “Facts Common to All Causes of Action,” Defendant Community Hospital admits only that on December 24, 2012, James M. Alvis, M.D. performed L3-4 segmental hardware removal, L2 laminectomy with bilateral foraminotomy L2, L3, and bilateral semi hemilaminectomy of L3 procedures on Evelyn Carson at Community Hospital.

VI.

The allegations contained in paragraphs 7 and 9 of that portion of Plaintiffs Petition entitled “Facts Common to All Causes of Action” constitute legal conclusions which require no response. Further, Plaintiffs allegations concerning agency and employment status or theories of liability will be determined as a matter of law through the course of discovery. To the extent any response is deemed required, the allegations contained in paragraphs 7 and 9 are denied.

VII.

Defendant Community Hospital denies the allegations contained in paragraphs 8 and 10 of that portion of Plaintiffs Petition entitled “Facts Common to All Causes of Action.”

VIII.

The allegations contained in paragraphs 1, 2, 3, 4, 5, 6, and 7 of that portion of Plaintiffs Petition entitled “First Cause of Action: Medical Malpractice” are not directed at this Defendant and, therefore, require no response.

IX.

With regard to the allegations contained in paragraph 8 of that portion of Plaintiff’s Petition entitled “First Cause of Action: Medical Malpractice,” Defendant Community Hospital admits only that on January 28, 2013, James M. Alvis, M.D. admitted Evelyn Carson at Community Hospital.

X.

Defendant Community Hospital is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 9 and 10 of that portion of Plaintiffs Petition entitled “First Cause of Action: Medical Malpractice.” Therefore, said allegations are denied.

XI.

The allegations contained in paragraph 11 of that portion of Plaintiff s Petition entitled “First Cause of Action: Medical Malpractice” are not directed at this Defendant and, therefore, require no response.

XII.

Defendant Community Hospital denies the allegations contained in paragraph 12 of that portion of Plaintiffs Petition entitled “First Cause of Action: Medical Malpractice.”

XIII.

The allegations contained in paragraphs 1, and 2, including all sub-paragraphs, of that portion of Plaintiff’s Petition entitled “Second Cause of Action: Professional Negligence” are not directed at this Defendant and, therefore, require no response.

XIV.

Defendant Community Hospital denies the allegations contained in paragraphs 3, including sub-paragraphs, 4, 5, 6, 7, 8, including sub-paragraphs, and 9 of that portion of Plaintiff’s Petition entitled “Second Cause of Action: Professional Negligence,” together with the prayer for reliefwhich follows.

xv.

Since discovery has not yet begun, this Defendant reserves the right to amend its answer in any particular.

ADDITIONAL DEFENSES

1. Plaintiff has failed to state a claim upon which relief can be granted, either in whole or in part.

2. Plaintiff’s claims against Defendant are barred in whole or in part by applicable statutes of limitation and/or the doctrine of laches and/or the doctrine of estoppel.

3. Defendant denies any negligence in the care and treatment of Evelyn Carson during her admission as a patient at Community Hospital.

4. Defendant denies that any act or failure to act on the part of any agent, servant or employee of Defendant caused and/or contributed to any injury to the subject patient.

5. Defendant asserts that the subject patient’s injuries and/or medical conditions, if any, preexisted her admission as a patient to the subject hospital or were proximately caused by the negligence of plaintiff, or of third parties over whom Defendant exercised no control.

6. Plaintiffs claims are subject to the provisions of the Oklahoma Affordable Access to Health Care Act, effective July 1, 2003.

7. This defendant is not a proper party to this suit.

8. The plaintiffs injuries, if any, were caused by a pre-existing or post-developing unrelated medical condition, disease, illness or infection of the plaintiff for which this defendant is not responsible.

9. Any damages allegedly suffered by plaintiff were caused by risks known to and assumed by plaintiff.

10. The plaintiff’s injuries, if any, were the result of unforeseeable or unavoidable complications due to an underlying condition of the Plaintiff, which were not caused by the acts of Defendant.

11. The plaintiffs injuries, if any, were caused by other, unrelated physical or mental or personal conditions of the plaintiff for which this defendant is not responsible.

12. The injuries alleged to have been sustained by plaintiff were the result of an intervening or supervening cause.

13. Defendant denies that it is liable for any punitive and/or exemplary damages. Defendant denies any act or failure to act on the part of any agent, servant or employee of Defendant in relation to the plaintiff sufficient to warrant the imposition of punitive damages.

14. Defendant asserts plaintiff’s claim for punitive damages violates provisions of the Oklahoma and U.S. Constitutions. For example, the imposition of punitive damages under Oklahoma law would violate the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the U.S. Constitution in each of the following ways:

(a) Oklahoma law permits the imposition of unlimited punitive damages that are vastly disproportionate to any acts or compensatory injury thereby violating the Fourteenth Amendment of the U.S. Constitution.

(b) Disproportionate punitive damages constitute an arbitrary and capricious taking of property which is unjustified by anyrational governmental interests, thereby violating the Fifth and Fourteenth Amendments of the U.S. Constitution.

(c) The award of punitive damages without specific standards to guide the jury’s discretion in determining the amount of damages is contrary to due process under the Fourteenth Amendment of the U.S. Constitution.

(d) Oklahoma does not provide a reasonable limit on the amount of any punitive damages award, thus violating the Fourteenth Amendment of the U.S. Constitution.

(e) The substance of standards of liability under which punitive damages are sought in this case are ambiguous, subjective, and not reasonably ascertainable, and thus “void for vagueness” under the Fourteenth Amendment of the U.S. Constitution.

(f) Oklahoma fails to provide a clear, objective and consistent appellate standard for post-verdict review of punitive damages thus violating the Fifth and Fourteenth Amendments of the U.S. Constitution.

(g) Oklahoma law permits civil punishment upon a standard of proof less than required for the imposition of criminal sanctions.

(h) Oklahoma law permits multiple awards of punitive damages for the same alleged act or omission.

(i) Oklahoma law and procedures governing plaintiffs’ punitive damage claim violates the Fifth Amendment guarantee against self-incrimination under the U.S. Constitution because said claim is penal in nature, while defendant is required to disclose documents and/or other evidence against its interests under the rules of discovery and evidence.

(j) The procedural standards for imposing punitive damages are unduly vague and do not furnish the jury sufficient guidance in determining whether and how much to award punitive damages for the alleged tortious acts of the defendants and thereby permits arbitrary and capricious taking of property in violation of the due process clause of the Fifth and Fourteenth Amendments to the U.S. ConstitutiOn.

15. Moreover, any award of punitive damages in this case would be violative of Defendant’s procedural and substantive due process rights because circumstances in this case are insufficient to support the reasonableness of an award of punitive damages and there are inadequate legal and procedural constraints imposed on the fact finder’s discretion to impose such awards. The standard for punitive damages lacks sufficiently objective criteria and procedural safeguards to give a jury adequate criteria on an appropriate range of proportionality regarding punitive damages. Furthermore, post-trial procedures and standards for trial court scrutiny of punitive damages awards and standards for appellate review of punitive damages awards are insufficient, and, therefore, violate Defendant’s right to due process of law.

16. Whereas discovery has not yet begun, Defendant reserves the right to plead additional defenses as information is made known to it.

WHEREFORE, having answered, Defendant Community Hospital, L.L.C. prays that plaintiff take nothing by way of her Petition, and for all other relief that this Court may deem just and appropriate.

Outcome: On the 23 day of January, 2014, the above styled and captioned cause of action came on for consideration pursuant to an agreement between the parties. The parties agree that Oklahoma County is not the proper venue for this cause of action and this case should be transferred to Cleveland County.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Oklahoma County is not the proper venue for this cause of action.

IT IS THEREFORE FURTHER ORDERED, ADJUDGED, AND DECREED that the above styled and captioned cause of action shall be transferred to Cleveland County and plaintiff is directed to remit to the clerk of the Court the appropriate fees and the clerk of the Court shall take such actions as are appropriate to effect the transfer of this case to Cleveland County.

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