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Sprague v. Avalon Care Center

Court of Appeals of Utah

June 20, 2019

Cheryl Sprague, Appellee,
Avalon Care Center, Appellant.

          Third District Court, Salt Lake Department The Honorable Barry G. Lawrence No. 140908104

          Catherine M. Larson and Jennifer R. Carrizal, Attorneys for Appellant

          Karra J. Porter and Kristen C. Kiburtz, Attorneys for Appellee

          Judge David N. Mortensen authored this Opinion, in which Judges Michele M. Christiansen Forster and Kate Appleby concurred.



         ¶1 After a six-day trial, which included testimony from seventeen witnesses-almost half of whom were experts-a nearly unanimous jury[1] awarded Cheryl Sprague, individually and on behalf of the heirs and estate of Morley Reed Sprague (collectively, Sprague), a $2 million verdict against Avalon Care Center (Avalon) for Sprague's injuries and resulting wrongful death. Avalon appeals, arguing that the trial court erred by denying its motion for partial directed verdict and admitting various expert testimony. We affirm.


         ¶2 Morley Sprague was an elderly man who suffered from advanced multiple sclerosis (M.S.) and paralysis of his lower extremities. As a result, he was confined to a bed or wheelchair and was "unable to reposition himself while sitting or lying down." This placed Sprague "at serious risk for developing pressure ulcers."[3]

         ¶3 In 2012, Sprague was admitted to Avalon, where he stayed for twenty-nine days. When he arrived, Sprague suffered from "a small, stage [one] pressure ulcer on his right buttock."[4] Avalon assigned Sprague a doctor, Scott E. Southworth; a wound care nurse, Richard Fonoti; and other nurses and nurses' aides. Southworth relied on Fonoti and the other nurses to keep him informed about Sprague's condition, particularly the pressure ulcer.

         ¶4 Within one month of being admitted to Avalon, Sprague's stage one pressure ulcer "had significantly deteriorated-to the point where bone was exposed-and had become infected." Sprague's family removed him from Avalon, but he never fully recovered. Over the next twenty-two months, attempts to treat the wound with surgery and antibiotics were unsuccessful and Sprague died. His heirs and estate subsequently filed this medical malpractice and wrongful death action.

         Denial of the Partial Directed Verdict

         ¶5 At trial, Sprague called expert witness Kevin Emmons-a board certified wound care nurse and professor of nursing at Rutgers University-to testify to the standard of care of a wound care nurse. On direct examination, Sprague's counsel asked,

Based on the materials that you have reviewed, and your understanding of wound care, have you formulated any opinions to a reasonable degree of medical probability with regard to what the standard of care, or what the standard of care would have been required of [Avalon] in treating [Sprague's] wounds?

         Emmons answered, "Sure," then expressed and explained those opinions.

         ¶6 Emmons opined that Avalon breached the minimum standards of care in the following seven respects: (1) inadequate turning of Sprague, (2) failure to minimize wheelchair time, (3) failure to provide a ROHO cushion, [5] (4) failure to provide an air mattress sooner, (5) failure to provide qualified staff, (6) failure to refer Sprague to a specialist, and (7) failure to properly involve Sprague's family in his care. Emmons elaborated on each point by citing medical records, deposition testimony, and other factual bases for his opinions. Emmons "vigorously defended these opinions on cross-examination."

         ¶7 At the conclusion of Sprague's case-in-chief, Avalon moved for a partial directed verdict on five of the seven alleged breaches.[6] Avalon argued that Emmons's testimony had not established each alleged breach of the standard of care to a reasonable degree of medical probability. The trial court denied the motion. The court agreed that it was Sprague's burden to prove the elements to a reasonable degree of medical probability but that "Emmons's testimony either explicitly or implicitly met that standard based on its totality."

         Expert Witness Testimony[7]

         ¶8 Sprague's counsel elicited extensive testimony from Southworth-Sprague's treating physician at Avalon-on direct examination. Among other things, Southworth answered questions related to the seven alleged duties and breaches discussed by Emmons. During this line of questioning, Southworth was asked, "So these seven [duties and breaches], you would agree, are basic standards of care for treating patients, such as [Sprague], that have existing pressure ulcers[?]" Avalon objected on the ground that Southworth was not a nurse and therefore could not provide expert testimony on the standard of care of nurses. The court partially sustained the objection and provided the following jury instruction:

So I'm going to allow him to answer the question, but I want to explain something to the jury. You're going to be asked to make determinations as to the nursing standard of care in this case. Dr. Southworth is not a nurse, okay? I'm going to allow him to answer these questions for the limited purpose of answering the question as far as his knowledge as a doctor about wound care. But as I said, later in the case you're going to hear from experts who are going to talk about nursing standard of care, and that is what is applicable in this case.

         Southworth then answered, "These are things that I, as a physician, would expect."

         ¶9 A key witness for Avalon was Dr. Kwon Lee-a certified wound care physician-who testified that the development and progression of Sprague's pressure ulcers were "unavoidable." Lee testified that he had reviewed "a lot" of Sprague's records, including records before, during, and after Sprague's stay at Avalon. Lee also reviewed the depositions of Fonoti and other nurses, Sprague's experts, Sprague's wife, and Sprague's treating physicians. With that preface, Avalon asked Lee if he had formed opinions in the case and what those opinions were. Lee responded, "The care at [Avalon], I believe was reasonable. . . . And the care rendered by [Fonoti] was appropriate."

         ¶10 Lee elaborated on general nursing standards of care in response to being asked what other interventions could have been made to prevent a pressure ulcer. Specifically, he offered that "certainly turning and repositioning is really the standard. Using pressure reducing mattresses and so forth, cushions . . . . [I]f there's skin that's prone to moisture, you want to use like a barrier cream, like a thick type of ointment . . . . And there are dressings that you can use, like foam dressings that will actually help provide some pressure relief."

         ¶11 Next, Lee gave opinions about the standard of care expected of Fonoti. Lee stated that Fonoti had an obligation as a wound care nurse to supervise other nurses and to ensure appropriate preventative measures were in place. He further opined that Fonoti had not caused the development of, or any additional injury to, Sprague's pressure ulcer. Finally, Lee testified that Avalon could not have implemented other interventions that would have helped to avoid Sprague's pressure ulcer.

         ¶12 On cross-examination, Sprague's counsel first confirmed Lee's testimony on the general nursing standards of care. As a result, Lee began backtracking on his earlier testimony by characterizing certain actions as "recommendations" rather than "standards" as he had previously stated. When Sprague's counsel pressed the issue, Avalon objected, claiming the cross-examination was beyond the scope of the direct examination. Avalon argued that Sprague's questions went to general nursing standards of care, whereas questions to Lee on direct had been limited to the standard of care as to just Fonoti. The trial court overruled the objection because Avalon "asked some really broad standard of care questions" on direct examination. Sprague continued attempting to discredit Lee, and Avalon again objected to the questioning as beyond the scope of direct examination. Again, the court overruled the objection and acknowledged that the purpose of the questions was to impeach Lee on his earlier testimony.

         ¶13 Sprague then attempted to impeach Lee on his position that no other mitigating measures could have been taken to prevent the pressure ulcer. Avalon again objected, arguing that it "had limited [Lee's] testimony to [Fonoti]" and that questions about the other attending nurses were therefore beyond the scope of the initial examination. The trial court again overruled this objection because Lee had testified broadly on direct examination, effectively opening the door to the line of questions related to the nurses working under Fonoti's supervision.

         ¶14 Next, the trial court admitted Emmons's testimony related to Sprague's alleged medical expenses. Emmons's transcribed testimony, in total, covered nearly 200 pages in the record. In addition to testifying about his professional expertise and experience, Emmons testified that he reviewed "a few thousand records" related to this case. Those records included (1) documents arising from Sprague's initial hospitalization, his first long-term care, his second long-term care, his stay at Avalon, his hospice stay, and his discharge to home care; (2) Sprague's death certification; (3) depositions of the nurses, physicians, and Avalon's experts; and (4) Sprague's medical bills, for which Emmons provided a summarized report (Summary).

         ¶15 On voir dire, [8] Avalon suggested that Emmons had not personally reviewed all the documents listed in the Summary because he had not also listed each provider separately, and by name, in his expert report. Emmons disagreed and explained that when a facility orders a medical service it may not always perform that service; but, that the reports, bills, and other documents related to that service remain within the ordering facility's records. So rather than list each individual provider who performed a service, Emmons's expert report simply identified the facility that ordered the service. Counsel for Avalon then stated, "I've made my point. I would move to just strike the portions of the [S]ummary that refer to those providers of whose records were not identified in the [expert] report." The trial court then asked Avalon, "Okay. Were you provided those records in the course of this case?" Avalon responded, "I have the records. Yes." The trial court conditionally admitted the Summary but indicated it would revisit the issue "at the next break."

         ¶16 At the next recess, Avalon again acknowledged it had received all the relevant medical bills at issue. The trial court asked if Avalon had "a good faith basis to believe that any of these dollar signs on this [S]ummary don't meet up with the real bill?" Avalon admitted, "No. They meet up with the bill." The court indicated that it believed Avalon's contentions with the medical bills were related to causation, not their admissibility. Avalon's counsel responded, "What my point was, was there are bills in there that are costs for care that's not related to the pressure ulcer." The court advised counsel that "there's certainly nothing preventing you, in your case, from having a witness tell that to a jury." The court ruled that the Summary was admissible and advised Avalon that if it wanted to respond to the causation components of the medical bills, it "certainly [could]." The court further instructed, "I want [Avalon] to provide to [Sprague] a list of the items that [it] think[s] are not [medical costs related to causation] by Monday morning." Avalon's counsel suggested, "[J]ust as another alternative, there's nothing precluding me from just raising this issue in closing?" The court ...

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