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FILED
3/6/2023 1:27 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Jeremy Jones DEPUTY
CAUSE NO. DC-21-08674
FRANTEISHA FONTENOT; DARREN IN THE DISTRICT COURT
KING; MARVIN PRIDE and YALONDA
WRIGHT, EACH INDIVIDUALLY AND
ON BEHALF OF THE ESTATE OF LINDA
FONTENOT WILLIAMS, DECEASED,
VS. 11674 JUDICIAL DISTRICT
DHC OPCO-CARROLLTON, LLC d/b/a
BROOKHAVEN NURSING AND
REHABILITATION CENTER and
THI OF TEXAS AT RICHARDSON, LLC
d/b/a THE VILLAGE AT RICHARDSON DALLAS COUNTY, TEXAS
DEFENDANTS DHC OPCO-CARROLLTON, LLC D/B/A BROOKHAVEN
NURSING AND REHABILITATION CENTER AND DYNASTY HEALTHCARE
MANAGEMENT, LLC’S RESPONSE TO PLAINTIFFS’ MOTION TO
EXCLUDE OPINIONS OF GREGORY A. COMPTON, M.D.
COME NOW, Defendant DHC OpCo-Carrollton, LLC d/b/a Brookhaven Nursing and
Rehabilitation Center, and Dynasty Healthcare Management, LLC (hereinafter referred to as the
“Brookhaven Defendants”), and files this, their Response to Plaintiffs’ Motion to Exclude
Opinions of Gregory A. Compton, MD, and in opposition thereof, would respectfully show the
Court the following:
I
FACTUAL BACKGROUND
1 This is a health care liability claim related to the care and treatment of Linda
Fontenot-Williams provided while she was a patient at multiple facilities in 2019.
2. The Plaintiffs, Franteisha Fontenot, Darren King, Marvin Pride, and Yalonda
Wright, Individually and on behalf of the Estate of Linda Fontenot Williams, Deceased have sued
BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY
A. COMPTON, M.D. — PAGE 1
Brookhaven, Dynasty, and THI of Texas at Richardson, LLC d/b/a The Village at Richardson.
(hereinafter referred to as “Village).
3 Ms. Fontenot Williams was a patient at The Village at Richardson from September
25, 2019 until November 14, 2019. She was then transferred to Medical City Dallas Hospital
where she remained from November 14, 2019 until December 11, 2019. She was a patient at
Brookhaven Nursing and Rehabilitation Center from December 11, 2019 until December 15, 2019.
On that date, she was transferred via EMS to Baylor Scott & White Hospital in Carrollton, where
she passed away on December 15, 2019.
4 The Plaintiffs have designated Dr. Summit Gupta as an expert in this case on June
1, 2022. A copy of Dr. Gupta’s report is attached hereto as Exhibit “A.”
5 Defendant Brookhaven filed its Expert Designation in this case on July 1, 2022. A
copy of Dr. Compton’s report included therein is attached hereto as Exhibit “B.” A copy of Dr.
Compton’s curriculum vitae is attached hereto as Exhibit “C.”
6. Co-Defendant THI of Texas at Richardson, LLC d/b/a The Village at Richardson
has also designated Dr. Steven Bray on causation issues and a copy of his report is attached hereto
as Exhibit “D.” Dr. Bray’s opinions regarding the cause of Ms. Williams’ death differs from Dr.
Gupta and Dr. Compton.
7
The cause of death listed on Ms. Williams’ death certificate is listed as:
Pulmonary Embolism;
Cholecystectomy; and
¢c. High Cholesterol.
8 Smoking was also listed as a significant condition contributing to her death and the
manner of her death was listed as natural. No autopsy was performed on Ms. Williams. See Death
BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY
A. COMPTON, M.D. — PAGE 2
Certificate of Linda Fontenot Williams attached hereto as Exhibit “E.” Instead of letting the jury
listen to the testimony of multiple expert witnesses and their reasoning or lack thereof for the same,
Plaintiffs seek to keep out any alternate theories at the time of trial which is inappropriate.
9 Plaintiffs filed their Motion to Exclude the Opinions of Dr. Compton on December
22, 2022. Plaintiffs contend that Dr. Compton should not be able to testify on causation issues,
essentially because he disagrees with Plaintiffs’ expert on what caused the death of Ms. Fontenot
Williams. Defendants would respectfully show that the Plaintiffs’ Motion to Exclude is without
merit and should be DENIED.
II.
SUMMARY OF ARGUMENT
10 The Plaintiffs’ Motion should be denied on the following grounds:
Plaintiffs have not objected to Dr. Compton’s qualifications;
Plaintiffs have not objected to any of Dr. Compton’s opinions on standard of care;
The Plaintiffs’ argument that Dr. Compton’s opinions should be excluded fails in
that Dr. Compton properly articulated the underlying facts and data he relied upon
in forming his opinions and his testimony is reliable and otherwise admissible.
11. The Brookhaven Defendants attach the following evidence in opposition to
Plaintiffs’ motion:
Exhibit “A” Report of Summit Gupta, MD;
Exhibit “B” Report of Gregory Compton, MD;
Exhibit “C” Curriculum Vitae of Gregory Compton, MD;
Exhibit “D” Report of Steven Bray, MD;
Exhibit “E” Death Certificate of Linda Fontenot Williams;
Exhibit “F” Deposition Testimony of Gregory Compton, MD; and
Exhibit “G” Carrollton EMS records.
BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY
A. COMPTON, M.D. — PAGE3
These exhibits are incorporated by reference herein as if fully set forth at length.
12. The Brookhaven Defendants would show that Dr. Compton is qualified to testify
on the causation issues in this case, he is qualified on the basis of his education, training and
experience as an internal medicine physician, he has scientific, technical and other specialized
knowledge that would make his testimony helpful to a jury at the time of trial to explain the care
and treatment provided to Ms. Williams at Brookhaven, as well as opine about the potential causes
of Ms. Williams’ death. His opinions are relevant and reliable, and he has provided appropriate
explanations about the data he has relied upon in forming his opinions. Just because Dr. Compton
doesn’t agree with the Plaintiffs’ expert’s theory on the cause of death does not mean his opinions
should be excluded. Therefore, Plaintiffs’ Motion to Exclude the opinions of Dr. Compton should
be DENIED.
Ii.
ARGUMENT & AUTHORITIES
A. Dr. Compton is Qualified as a Medical Expert in this Case
13. The Plaintiffs have not objected to Dr. Compton’s qualifications to testify in this
case. A copy of his curriculum vitae is attached hereto as Exhibit “C.” This is a health care
liability claim as defined in TEX. CIv. PRAC. & REM. CODE §74.001(10). Dr. Compton is Board
Certified in Internal Medicine and Geriatric Medicine. /d. He is Clinical Assistant Professor at
Medicine at Medical University of South Carolina and teaches geriatrics and palliative care. Id.
He has also been treating chronically ill patients in hospital and nursing home settings since being
licensed in 1980. Jd.
14. Expert testimony on the appropriate standard of care and the breach of that
standard is required for a health-care-liability claim because medical standards of care require
BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY
A. COMPTON, M.D. — PAGE 4
skills not ordinarily possessed by laypersons. Carl J. Battaglia, M.D., P.A. v. Alexander, 177
S.W.3d 893, 899 & n.7 (Tex.2005).
15. Further, Dr. Compton meets the qualifications for an expert, and as an expert on
causation pursuant to §74.402and §74.403 of the TEX. Civ. PRAC. & REM. CODE. Plaintiffs have
not objected to Dr. Compton’s qualifications. He is qualified as an expert by knowledge, skill,
experience, training and education. The Brookhaven Defendants would show that pursuant to
Tex. R. EviD. 702, Dr. Compton’s testimony on the medical issues in this case will be helpful to
the jury to understand the facts and evidence in this case.
B. The Plaintiffs Have Not Objected to Dr. Compton’s Opinions on Standard of Care
16. Likewise, Plaintiffs have not objected to Dr. Compton’s opinions on the standard
of care, and that the Brookhaven Defendants met the appliable standard of care in their care and
treatment of this patient. Dr. Compton stated on page 3 of his report “[t]he staff of Brookhaven
Nursing and Rehab met the standard of care for the supervision and management of Ms. Fontenot
Williams while she was a resident. They performed appropriate and timely assessments and
notified her physician of the change of condition on 12/14/2019.” See Exhibit “B” at 3. He further
opined that “[w]hen the physician was notified he made the determination to treat her in the facility
by addressing what appeared to be intravascular volume depletion with IV fluids. The nursing
staff followed the physician’s orders.” Jd.
17. Further, while Plaintiffs have complained in this case about the timing of the
execution of a chest x-ray in this case, Dr. Compton’s report concluded that “Dr. Patel did not
order the chest x-ray stat, therefore the x-ray was requested routine by staff. . . . the absence of the
x-ray results did not warrant a stat x-ray order.” Jd. at 4. Dr. Compton noted that it “is not a
nursing duty to determine the urgency of an x-ray. Again, the timing of the chest x-ray was a
BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY
A. COMPTON, M.D. — PAGES
physician judgment call. Any contention as to what the x-ray would have uncovered is absolutely
speculative.” Jd. at 5.
18. The Plaintiffs’ complaints regarding Dr. Compton center on a specific causation
opinion offered by Dr. Compton and they don’t want him to be able to testify to a cause that differs
from their own expert or the patient’s death certificate. Nevertheless, the Brookhaven Defendants
would show that since there have been no complaints made by the standard of care opinions offered
by Dr. Compton, those should not be excluded at the time of trial as a matter of course.
C. Dr. Compton’s Opinions are Relevant and Reliable
19. As to the opinions Plaintiffs are complaining about, the Brookhaven Defendants
would show that just because the Plaintiffs’ counsel or their expert do not agree with Dr.
Compton’s opinions, does not mean they should be excluded at the time of trial. Dr. Compton’s
opinions are relevant and reliable pursuant to TEX. R. EviD. 702. Further, he has thoroughly
explained the bases for those opinions in his report and in his deposition testimony.
20. With regard to Dr. Compton’s opinions on causation, he states on page 3 of his
report that “Ms. Fontenot Williams suffered a sudden cardiac collapse at approximately 17:45
hours on 12/15/2019. When EMS arrived she was still breathing, agonal respirations and was
pulseless. Two minutes after CPR and the ACLS protocol was initialed her rhythm was PEA. Her
initial rhythm was asystole. She was intubated at the hospital and subsequently died. It is my
opinion supported by the EMS personnel that her death was cardiac not respiratory in origin. In
essence, she suffered unexpected cardiac collapse. This is sometimes referred to as sudden cardiac
death. This is not unusual in a multi-morbid person such as Ms. Fontenot Williams.” See Exhibit
“B” at 3.
BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY
A. COMPTON, M.D. — PAGE 6
21. When determining whether an expert’s opinion is reliable, it is important to look at
the connection between the data relied upon and the opinion offered. Southwestern Energy Prod.
v. Berry-Helfand, 491 S.W.3d 699, 717 (Tex. 2016). Dr. Compton indeed relates what his opinions
regarding causation are based upon.
22. Dr. Compton testified on page 136 of his deposition:
Q. (By Ms. Wormington) What is your understanding
of what happened on the 15th?
A. It is that the nurses noticed a significant
change in condition prompting them to call the EMS.
10 and -- I'm pulling the EMS run report -- and the EMS
ii arrived on the scene -- I'm looking for the specific
oe time. I have the run report in front of me. Their
oe first set of vitals was at 17:35. It says assessment
14 time 12/15/2019, 17:30:20, so 17:00 hours, 30 minutes.
15 And they found the patient in their -- in their
16 narrative to have agonal respirations, to be pulseless
a and they initiated CPR. And then you can see the time
18 flow of their interventions. You know, 17:35 patient
19 unresponsive. They couldn't record a blood pressure.
20 They couldn't record a pulse. They had a glucose level.
21 And they initiated CPR initially by, you know, chest
oe compressions and bag valve mask; and you can follow it
23 on the bottom of page 1 of 3, their interventions.
24 Their diagnosis was that she had a cardiac arrest.
See Deposition of Gregory Compton, Exhibit “F” at p. 136, ll. 6-24.
23. Dr. Compton stated that he was relying upon his review of the patient’s medical
records at Brookhaven, but also the Carrollton EMS records attached hereto as Exhibit “G.” The
top right of page 000001 states the Clinical Impression was “Cardiac arrest.” Page 000002 of the
EMS records also states “Pt was pulseless.” CPR was started and “the pt was still pulseless and
showing PEA [‘Pulseless Electrical Activity”] on the monitor.” Jd. Again, Dr. Compton has
provided a basis for his opinions through his review of the patient’s medical records in this case.
24. Unlike the Plaintiffs’ expert Dr. Gupta whom the Brookhaven Defendants have
objected to, Dr. Compton testifies on pages 168-169 of his deposition that myocardial infarction
and pulmonary embolus are also possible causes of the patient’s sudden death. See Exhibit “F”
BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY
A. COMPTON, M.D. — PAGE 7
at p. 168, 1. 20 to p. 170, 1. 5. Pursuant to Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010),
“when the facts support several possible conclusions some of which establish that the defendant’s
negligence caused the plaintiff's injury, the expert must explain to the fact finder why those
conclusions are superior based on verifiable medical evidence, not simply the expert’s opinion.”
25. Plaintiffs’ expert Dr. Gupta opines in his report that Ms. Williams’ death was
caused as a result of respiratory distress and contends the only cause of that was IV fluids,
respiratory distress and pulmonary edema. See Exhibit “A.” The Brookhaven Defendant’s
physician expert, Dr. Gregory Compton, opines that Ms. Williams’ death was as a result of a
sudden cardiac collapse. See Report of Gregory Compton, MD attached hereto as Exhibit “B.”
Co-Defendant’s MD expert, Dr. Steven Bray states in his report that cause of death listed on death
certificate was pulmonary embolism. Her death was a result of a blood clot to the lung. See Report
of Dr. Steve Bray attached hereto as Exhibit “D” at page 5. Dr. Gupta fails to consider any possible
cause of death other than his own opinion. As such, his opinion is conclusory and ureliable.
26. Unlike Dr. Gupta, Dr. Compton has, in fact, considered several possible
conclusions for the patient’s death, while Plaintiffs and their expert have only considered
respiratory distress as a cause of the patient’s death. Dr. Compton testified that he believed Ms.
Williams heart stopped as a result of an arrhythmia rather than a pulmonary embolism or
respiratory distress. See Deposition of Gregory Compton, Exhibit “F” at p. 169, 1. 17 — p. 170,
line 5. He stated that:
17 Q. Your opinion is that her heart stopped because
18 of an arrhythmia; you don't know why the arrhythmia
19 occurred, but that's what caused her to die?
20 A. Yeah, she had a -- she had a cardiac -- she
21 either had asystole or PEA and -- it was a cardiac event
ae and she -- and we can exclude volume overload, we can
23 exclude pulmonary edema, we can exclude ARDS because the
24 EMS, when they had a bag mouth -- bag mask -- bag valve
-_ mask, BVM, did not hear any respiratory crackles or
rales.
BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY
A. COMPTON, M.D. — PAGES
27h Dr. Compton further explained his reasoning during the deposition. Plaintiffs’
counsel and her expert’s theory is that this patient had pulmonary edema as a result of fluid
overload. Dr. Compton testified that if the patient had pulmonary edema “the doctor or examiner
may hear abnormal breath sounds like crackles or rales.” /d. at p. 82, ll. 8-9. He further expands
on this and says that:
10 A. It's my opinion that the lack of crackles when
11 they listened to her lungs while being bagged and
12 intubated negated the fact that she was volume
fee overloaded to the extent that she had pulmonary edema or
14 any other condition that might -- that you might expect
15 to hear rales in. In other words, if she had pulmonary
16 edema or ARDS or some other thing that's going to fill
17 up her alveoli with fluid, you're going to hear
18 something; and that was not heard by trained
19 professionals
Id. at p. 175, ll. 10-19.
28. Based upon these specific findings in the patient’s medical records, Dr. Compton
concludes that “after my analysis of the record, iit was not a respiratory event. I can exclude the
respiratory aspect of the PEA [“Pulseless Electrical Activity”].” Jd. at p. 170, Il. 9-18. Other
specific testimony which supported Dr. Compton’s opinions on causation and ruled out the
Plaintiffs and their expert’s theory is on page 188 of his deposition where he states:
14 Q. How does that support your opinion that she had
15 aspontaneous arrhythmia that caused her heart to stop?
16 A. Because she's still breathing. If she stopped
17 breathing and then it caused a cardiac event, she
18 wouldn't still be breathing.
Id. at p. 188, Il. 2-18. Dr. Compton concludes that if Plaintiffs theory was that a respiratory event
caused a cardiac event, the patient would have no longer been breathing when EMS personnel
arrived. Id.
BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY
A. COMPTON, M.D. — PAGE 9
29. In response to some of the specific issues raised in Plaintiffs’ Motion, Plaintiffs cite
Gharda USA, Inc. v. Control Solutions, Inc., 464 S.W.3d 338, 349 (Tex. 2015) and state “[t]he
goal of a court’s reliability analysis is not to make a definitive determination of the
merits of the expert’s opinions, but rather to question whether the analysis used to construct those
opinions is reliable.” The Brookhaven Defendants would show that Dr. Compton has
appropriately provided details regarding what his opinions are and has provided the analysis he
used to construct those opinions.
30. There is not an analytical gap in Dr. Compton’s opinions, but instead in Dr. Gupta’s
where he only considers one cause of death, fails to consider alternate theories, and speculates as
to what the results of the patient’s chest x-ray would or would not have been in this case.
31. Plaintiffs further complain that Dr. Compton did not cite to medical literature in
forming his opinions. There is no “authority that an expert must refer to authoritative literature or
medical studies in order for the expert’s opinion to be reliable.” Keo v. Vu, 76 S.W.3d 725, 735
(Tex. App.--Houston [1st Dist.] 2002, pet. denied). Plaintiffs’ counsel was questioning Dr.
Compton regarding oxygen saturations and stated:
Q. (By Ms. Wormington) And what literature do you
rely on to say that saturation in the 80s is not
sufficient hypoxia to cause PEA?
A. That's just common knowledge. You don't need
literature for that. That's just -- shucks, there are
people with -- walking around with COPD in Walmart with
2 sat on their nose -- 02 on their nose, walking around
with 85s.
See Exhibit “F” at p. 172, ll. 1-8. Plaintiffs’ counsel’s questions on this topic were argumentative
and there was no need for him to provide medical literature when his testimony was based upon
his education, training and experience while Plaintiffs’ have not objected to his qualifications in
this case.
BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY
A. COMPTON, M.D. — PAGE 10
32. “The trial court is not to determine whether the expert’s conclusions are correct,
but only whether the analysis used to reach them is reliable.” Keo, 76 S.W.3d at 734. Dr. Compton
has thoroughly explained his causation opinions on the cause of Ms. Williams’ death and has
described what his analysis was to reach them. As such, they should not be excluded at the time
of trial of this case.
33. Dr. Compton’s opinions are well-reasoned and based upon the facts and evidence
in this case, as well as the doctor’s education, training, and experience. Further, he complies with
the requirements of Jelinek and considers alternate possible causes of the patient’s death and
provides the basis for his analysis and opinions in this case. As such, Dr. Compton’s opinions
should be admitted at the time of trial and the Plaintiffs’ Motion to Exclude should be DENIED.
IV.
CONCLUSION
The Brookhaven Defendants would show that Dr. Compton is qualified to testify on the
causation issues in this case, he is qualified on the basis of his education, training and experience
as an internal medicine physician, he has scientific, technical and other specialized knowledge that
would make his testimony helpful to a jury at the time of trial to explain the care and treatment
provided to Ms. Williams at Brookhaven, as well as opine about the potential causes of Ms.
Williams’ death. His opinions are relevant and reliable, and he has provided appropriate
explanations about the data he has relied upon in forming his opinions. Just because Dr.
Compton doesn’t agree with Plaintiffs’ counsel or her expert’s theory on the cause of death does
not mean his opinions should be excluded. Therefore, Plaintiffs’ Motion to Exclude the opinions
of Dr. Compton should be DENIED.
BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY
A. COMPTON, M.D. — PAGE 11
WHEREFORE, PREMISES CONSIDERED, the Brookhaven Defendants pray that the
Court DENY Plaintiffs’ Motion to Exclude the causation opinions of Gregory Compton, MD. The
Brookhaven Defendants further pray for such other relief, at law or in equity to which they may
be justly entitled.
Respectfully submitted,
QUINTAIROS PRIETO WOOD & BOYER, P.A
By: /s/ WendyA. McMillon
FRANK ALVAREZ
State Bar No. 00796122
frank.alvarez@qpwblaw.com
WENDY A. McMILLON
State Bar No. 00790100
wendy.memillon@gpwblaw.com
1700 Pacific Ave, Suite 4545
Dallas, Texas 75201
Telephone: (214) 754-8755
ATTORNEYS FOR DEFENDANT
DHC OPCO-CARROLLTON, LLC DBA
BROOKHAVEN NURSING AND
REHABILITATION CENTER AND DYNASTY
HEALTHCARE MANAGEMENT, LLC
BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY
A. COMPTON, M.D. — PAGE 12
CERTIFICATE OF SERVICE
The undersigned certifies that on the 6th day of March, 2023, a true and correct copy of
the foregoing document was served in compliance with the Texas Rules of Civil Procedure upon
all counsel of record, as indicated below:
Maria Wormington Lori D. Proctor
David Benford Coleman Proctor
Wormington & Bollinger Wilson Elser Moskowitz Edelman & Dicker
212 East Virginia Street LLP
McKinney, TX 75069 909 Fannin Street, Suite 3300
Telephone: (972) 569-3930 Houston, Texas 77010
Facsimile: (972) 547-6440 (713) 353-2000 — Telephone
Maria@wormingtonlegal.com (713) 785-7780 — Facsimile
David@ wormingtonlegal.com Lori.Proctor@wilsonelser.com
Cole.Proctor@wilsonelser.com
Attorneys
for Plaintiff
Attorney for Defendant
THI of Texas at Richardson d/b/a
The Village at Richardson
/s/ Wendy A. McMillon
Wendy A. McMillon
BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY
A. COMPTON, M.D. — PAGE 13
EXHIBIT
A
CAPITAL
PRIMARY & GERIATRIC CARE
Summit Gupta, MD
8609 Westwood Center Drive
Suite 110
Vienna, VA 2182
443-421-6815
Medical Expert Report:
Linda Fontenot vs. Brookhaven Nursing & Rehabilitation Center and The Village at
Richardson
Maria Wormington
Wormington & Bollinger
212 East Virginia Street
McKinney, Texas 75069
I Medical Expert Qualifications
My name is Summit Gupta, MD, and I am a licensed physician practicing in Maryland and
Virginia. I am board certified through the American Board of Internal Medicine in internal
medicine and geriatric medicine.
I earned a Bachelor of Science in Biomedical Engineering from the University of
Pennsylvania prior to earning a Doctor of Medicine from Duke University School of Medicine. I
then completed my residency in internal medicine at Franklin Square Hospital Center in Baltimore,
Maryland. Thereafter I worked as a hospitalist providing inpatient care prior to completing a
fellowship in geriatric medicine at the University of Maryland in Baltimore, Maryland. Since 2009
I have been in private practice in medicine. This has included caring for patients admitted to the
hospital and to a greater extent caring for patients residing in nursing facilities.
With reference to the above, I have extensive experience and expertise in caring for patients
with medical conditions similar to Linda Fontenot (“LF”) including but not limited to dementia,
acute respiratory distress syndrome (“ARDS”), pneumonia, gallstone pancreatitis (“GP”),
systemic inflammatory response syndrome (“SIRS”), sepsis, and pulmonary edema. Of more
pertinence, I have cared for patients similar to LF at facilities similar to Brookhaven Nursing &
Rehabilitation Center (“BNRC”), Village at Richardson (“VR”), and Medical City Dallas Hospital
(“MCD”). I have kept up to date on the standards of care and my below expert assessment of the
case reflects the standard of care at the time these facilities were providing care to LF. Resources
that I implement to maintain my knowledge of the current standard of care include but are not
limited to evidence-based and peer reviewed studies, articles, and guidelines, particularly through
the UpToDate clinical resource system.
1 am very familiar with the medical topics that are the subject matters of this case. These
medical topics include but are not limited to:
ARDS, pulmonary edema, and respiratory failure including hypoxic respiratory failure
Pneumonia
GP
Hypotension
SIRS and sepsis including septic shock
Cholecystectomy and post-surgical debility including post-surgical sedation
Abdominal pain (“AP”)
Recognizing symptoms and signs of “serious” etiologies of AP including GP as well as
ARDS/pulmonary edema that warrant emergent referral to the emergency room/hospital
for further evaluation and management. In addition, communication of these symptoms
and signs from the nursing home staff to healthcare providers such as physicians, nurse
practitioners (“NP), and physician assistants as well at to the patient’s family/next of kin
Proper evaluation of and patient monitoring to prevent ARDS/pulmonary edema and the
tole of chest x-ray (“CXR”) in this clinical management
Indications for and proper patient monitoring of intravenous fluid (“IVF”) administration
in a patient at high risk for ARDS/pulmonary edema
Interdisciplinary care in the geriatric/nursing home population
Proper assessment, care planning, and documentation of the above medical topics in the
nursing home
Legal definitions
My service in nursing facilities enables me to properly assess the level of care that facility
staff similar to that of BNRC and VR should provide for its patients. Such staff includes but are
not limited to nurses, nutritionists, nursing assistants, physicians, nurse practitioners, physician
assistants, physical therapists, occupational therapists, and speech therapists. Iam very conversant
in how a multidisciplinary team incorporating these healthcare providers should evaluate and care
for patients with medical conditions similar to LF.
My assessment documented in this report are based on my education, training, research, and
clinical experience. My resume is attached and serves as a reference for this report. My assessment
is based on a reasonable degree of medical probability and is based on my review of the below
records, yet I reserve the right to modify this assessment within the context of additional
information that is presented to me.
For preparing for this report, I reviewed the following medical records pertaining to this case:
. Plaintiffs’ 2"! Amended Original Petition
. Medical records from BNRC and VR including but not limited to staff schedules, facility
policy & procedures, facility clinical protocols including the Intravenous Administration
of Fluids & Electrolytes policy for BNRC, census reports, personnel files, and position
descriptions,
Deposition testimony from Bernadette Musa, CNA, Bertha Hunzwi, RN, Britney Ross,
CNA, Israel Lopez, LVN, Muna Kebede, LVN, Ngozi Obi, LVN, Pabitra Kadariya,
CNA, Veronica Idibia, LVN, Yalonda Wright, with exhibits
Deposition testimony from LF’s daughter, Franteisha Fontenot and son, Darren King.
2
Medical records from MCD and Baylor Medical Center at Carrollton (“BMC”)
Medical records from Carrollton Fire Rescue (“CFR”) and Richardson Fire Department
(“RED”)
Defendant BNRC’s Objections & Responses to Plaintiff's First Requests for Production
Affidavit of Troy Issac (“TY”)
Audio recording of BNRC staff ordering CXR for LF from Stat X-Ray of Texas, Inc
(“SXR”)
Death Certificate of LF
Department of Health & Human Services Centers for Medicare & Medicaid Services
teports on BNRC and VR
IL. Synopsis of Pertinent Clinical History
In September, 2019, LF was a 66-year-old female with a history of dementia. She
completed her hospitalization for dehydration with hypotension. Her family admitted her to VR
to care for her. She was ambulatory with no significant cardiopulmonary co-morbidities. On
November 13, 2019, LF fell and suffered AP and emesis. These symptoms persisted and she
clinical deteriorated to where she become very lethargic. Her daughter was visiting the patient
and had her present to the MCD ER via 911 emergency transportation on November 14.
At MCD, LF was found to be lethargic, confused, with hypotension on admission. She
was found to have GP and from it suffered ARDS with pneumonia. Her debilitated state
precluded immediate surgery to remove the gallbladder to treat the pancreatitis. She was
resuscitated with IVF to treat her hypotension, put on a clear liquid diet to alleviate her
pancreatitis, supported with supplemental oxygen to treat her ARDS, and given antibiotics to
treat her pneumonia. Although greatly debilitated, she improved enough to undergo the
cholecystectomy on December 5. LF suffered significant complications during the
hospitalization related to her GP. These included but were not limited to ARDS, pneumonia,
SIRS/sepsis, clostridium difficile colitis (“C diff’), dysphagia, tachycardia, severe
deconditioning/lethargy, hypotension, fever, hypernatremia, acute renal failure, and increased
aspiration risk.
LF was discharged to BNRC on December 11. She had persistent weakness/lethargy. In
response BNRC instituted IVF on December 14 to restore the patient’s strength. However, LF’s
ARDS/pulmonary edema recurred while she was receiving IVF. This progressed to where she
suffered considerable respiratory distress with hypotension on December 15 while still receiving
IVF. Emergency medical services was summoned. They found her to be unconscious with no
pulse. Cardiopulmonary resuscitation was initiated and she was transferred to BMC where she
was pronounced dead.
lll. Breaches in the Standard of Care of LF by VR
Failure Properly Evaluate LF’s AP
At VR, LF fell on November 13 and suffered AP and emesis. Prior to that she was able to
ambulate well with no deficits in mobility noted in her Braden and fall risk assessments. She also
did not suffer from significant falls prior to that. Furthermore, AP and emesis were new symptoms
for her. This signaled serious pathology and warranted an abdominal exam by VR to evaluate these
symptoms. However, this was not done at VR. Instead, an abdominal exam was done in the MCD
ER the next day. This revealed diffuse abdominal tenderness. Within a reasonable degree of
medical probability, this tenderness would be been discovered by VR had they performed the
abdominal exam on November 13. This would have signaled a serious condition that was later
diagnosed as GP. Within a reasonable degree of medical probability, an abdominal exam by VR
on November 13 would have steered the healthcare providers to send the patient to the ER on that
day. Within a reasonable degree of medical probability, this earlier presentation to the ER would
have significantly alleviated LF’s drastic hospital course at MCD. This mitigation in the clinical
course is further speculated below.
The depositions of the VR staff, Israel Lopez, LVN, Muna Kebede, LVN, Pabitra Kadariya,
CNA, and Brittney Ross, CNA pointed to how these providers recognized that AP, fall, and
nausea/vomiting can signal a serious medical condition. Therefore, the fact that no abdominal
exam was performed on November 13 demonstrated serious disregard in VR’s care of LF.
Inadequate Documentation of LF’s Clinical Condition
The standard of care is for the VR nursing staff to assess LF daily and document
accordingly. However, the most recent such documentation prior to November 13 was November
1. This signaled that the nurses were not assessing LF daily prior to November 13. Such daily
assessment may have revealed earlier symptoms of the GP including but not limited to AP. This
could have allowed VR to send the patient earlier to the hospital. This would have allowed for an
earlier cholecystectomy to prevent much of the complications of the GP. However, no such
assessments were done to enable this earlier treatment for LF.
Failure to Properly Communicate LF’s Poor Clinical Condition to the Family and the
Healthcare Providers
VR documented notifying the physician of the patient’s fall, AP, and emesis at 4pm on
November 13, when this occurred. However, the patient continued to have AP and nausea up to at
least 9pm. VR did not notify the NP or the physician at that time that these symptoms persisted.
Through her deposition, Franteisha Fontenot noted that she was not told by VR about her mother
vomiting. LF became significantly ill on November 14. This supports that at the very least LF was
considerably sick the day before. Within a reasonable degree of medical probability, VR failed to
delineate the degree to which LF was ill to the physician/NP. Had this communication been done
diligently by VR, the physician/NP may have had enough clinical information to judge that LF
warranted hospital ER presentation on November 13 within a reasonable degree of medical
probability. Furthermore, had VR communicated the patient’s vomiting to the daughter, she would
have had more appreciation of how sick her mother was and been able to better determine whether
she needed emergent hospital care. However, VR breeched the standard of care by not properly
communicating the great degree LF was ill to the physician/NP and her family.
Failure to Send LF to the Hospital in a Timely Fashion
The standard of care dictates that VR should have sent LF to the ER on November 13. LF
had fallen and had AP and vomiting. All of this were new for her. VR did not require a
physician/NP to order this transfer. VR had enough clinical information through their direct patient
assessment to make the decision to transfer the patient to the ER on November 13. LF was
transferred to the ER via emergent 911 communication only at the behest of her daughter who
assessed her mother at the facility on November 14. Prior to that VR ordered non-emergent
transportation which delayed LF’s presentation to the ER. Had the daughter not instigated the
emergent 911 mediated transportation, LF’s critical hospital care would have been further delayed.
The delay of hospital care from November 13 to 14 is noteworthy in this case. LF suffered
from GP including its complications of lethargy, hypotension, and ARDS/pneumonia. This
prevented immediate cholecystectomy to treat the pancreatitis. This in turn propagated the
pancreatitis and the ensuing complications to be further discussed below. Had VR sent LF to the
hospital on November 13, within a reasonable degree of medical probability, LF would have been
in a clinical state to tolerate the cholecystectomy on around November 13/14. This would have
enabled earlier treatment of the pancreatitis and hence the prevention of much of its SIRS related
complications.
IV. Breaches in the Standard of Care of LF by BNRC
Failure to Properly Evaluate LF’s Weakness/Lethargy and Communicate this to the
Family and the Healthcare Providers
LF was in a very weak debilitated state when she presented to BNRC on December 11
upon her discharge from MCD. VR should have accurately communicated her condition to the
family and the physician. Collectively these parties could have decided to transfer LF back to the
hospital for further care in order to improve her strength and mentation. However, no such
communication was made to enable this decision making.
Inappropriate Administration of IVF and Failure to Properly Monitor IVF Administration
Including Failure to Properly Implement CXR and Measure Ins/Outs
BNRC delayed their feedback to the physician on LF’s condition until December 14. No
meaningful communication between BNRC and the physician was done prior to that. LF
suffered from ARDS at MCD as a complication from her prolonged course of GP. In ARDS, the
pulmonary blood vessels are more permeable. This increased permeability results in pulmonary
edema which is fluid accumulation in the lungs. In ARDS, fluid administration is often restricted
to prevent this condition. This is exemplified by the cautious manner in which MCD
administered IVF to LF. In fact, upon her discharge, MCD was not treating LF with IVF.
Presumably, MCD was mindful of LF’s ARDS condition and restricted IVF to prevent
pulmonary edema which is the defining characteristic of ARDS.
LF was still recovering from her ARDS and she still had increased pulmonary vascular
permeability as part of this syndrome. BNRC presumably implied to the physician that LF was
dehydrated on December 14. As such LF was given IV. In fact, LF was lethargic
>
due to the residual ARDS. As such the IVF caused the pulmonary edema as part of the ARDS
spectrum. With the IVF continuing into December 15, the accumulation of pulmonary edema led
to respiratory distress and eventually respiratory failure that led to cardiac arrest and death.
Through their depositions, Darren King and Franteisha Fontenot support that the patient
suffered from respiratory distress after IVF was initiated at BNRC. Furthermore, BNRC initiated
supplemental oxygen via nasal cannula after IVF implementation. These point to LF suffering
from respiratory distress from pulmonary edema due to the IVF. Likewise, LF began to suffer
from hypotension during this period. This supports that LF had SIRS as part of her ARDS
spectrum. In SIRS, patients can suffer from hypotension due to inflammation from an underlying
condition. In this case the underlying cause was the ARDS with pulmonary edema being
exacerbated by IVF.
BNRC documented that LF had edema on their assessment on December 15. This was
new from previous days. This indicates soft tissue accumulation of fluid from the IVF that
BNRC was able to appreciate on their examination of LF. This supports similar accumulation of
fluid in the lungs in the form of pulmonary edema.
BNRC also failed to measure the patient’s “Ins/Outs” when they administered the IVF.
This entails measuring the volume of input in the form of IVF and oral and comparing with the
“output” mainly in the form of urinary excretion. This allows the facility to gauge a net fluid
accumulation that would signal the onset of pulmonary edema. This is the standard of care for
patients receiving IVF, especially those at high risk of pulmonary edema from IVF including
those suffering from ARDS like LF did. BNRC’s facility policy on IVF dictates this form of
monitoring in such high-risk patients, yet they did not institute this protocol accordingly.
Furthermore, MCD diligently measured this fluid balance as part of the standard of care. Within
a reasonable degree of medical probability, had BNRC measured this fluid balance, it would
have been significantly positive at the end of the first shift it was administered alerting them and
the physician of the impending pulmonary edema. This likely would have prompted the
provideran to discontinue the IVF and prevent the pulmonary edema that led to the patient’s
death.
The physician ordered a CXR the evening of December 14 at the onset of the [VF
administration to be done the morning of December 15. This was done presumably to screen for
pulmonary edema in the face of the patient recovering from ARDS receiving IVF. The CXR was
never done and BNRC never followed up with SXR to ensure this critical study was done.
Furthermore, BNRC never informed the radiology company that the CXR was to be done the
morning of December 15, not when it was ordered on the 14" nor when the nurse called the
morning of the 15" at which time she should have informed the radiology company that it
needed to be done with heightened “stat” or “urgent” priority, which is appropriate given the
critical state of the patient. The affidavit of TI and the audio recording between BNRC and SXR
attests to the inappropriate disregard in priority BNRC gave for the CXR order. Had BNRC
properly instituted the CXR with increased priority and followed up/properly communicated this
order, within a reasonable degree of medical probability, the CXR would have been done and
the affidavit of TI verifies that this in fact would have occurred. Within a reasonable degree of
medical probability, the CXR would have revealed pulmonary edema that would have allowed
6
the providers to discontinue the IVF and send the patient to the ER for more urgent management
of the pulmonary edema including diuretics and respiratory support which in reasonable
probability would have saved her life. The BNRC nurse, Ngozi Obi, LVN, notes via deposition
the pathophysiology of pulmonary edema from IVF and emphasizes the importance of patient
monitoring to prevent this condition. The nurse also recognizes the importance of edema
signaling fluid overload. This emphasizes the considerable negligence BNRC demonstrated in
failing to monitor and prevent the pulmonary edema in a patient recovering from ARDS
receiving IVF.
Inappropriate Administration of Hypertension Medication in a Hypotensive Patient.
LR was prescribed Zestril to treat her hypertension at BNRC. It was ordered to be held if
the blood pressure was low. This contingency is the standard of care for hypertension
management in the nursing facility. On December 14, LF began to suffer from her recurrence of
ARDS with SIRS. This was manifested as hypotension. As such the Zestril should not have been
given on that day per its ordered restriction guidelines. However, it was inappropriately given
further exacerbating the hypotension. Eventually, this hypotension from the SIRS along with the
respiratory distress from the IVF instigated pulmonary edema would combine to lead to the fatal
cardiac arrest. Through deposition, Ngozi Obi, LVN admitted to the incorrect administration of
the Zestril on December 14. The nurse noted that the Zestril should have not been given on that
day.
Failure Properly Evaluate LF’s Overall Clinical Condition Including Respiratory Distress
and Failure to Communicate this to the Family and the Healthcare Providers
LF suffered from considerable weakness/lethargy from the onset of her stay on BNRC on
December 11. She was not able to eat or recuperate from her illness, mainly ARDS. BNRC
failed to communicate LF’s poor clinical condition to the family and the physician. Had BNRC
effectively communicated this, these parties could have de
Preview
FILED 3/6/2023 1:27 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Jeremy Jones DEPUTY CAUSE NO. DC-21-08674 FRANTEISHA FONTENOT; DARREN IN THE DISTRICT COURT KING; MARVIN PRIDE and YALONDA WRIGHT, EACH INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF LINDA FONTENOT WILLIAMS, DECEASED, VS. 11674 JUDICIAL DISTRICT DHC OPCO-CARROLLTON, LLC d/b/a BROOKHAVEN NURSING AND REHABILITATION CENTER and THI OF TEXAS AT RICHARDSON, LLC d/b/a THE VILLAGE AT RICHARDSON DALLAS COUNTY, TEXAS DEFENDANTS DHC OPCO-CARROLLTON, LLC D/B/A BROOKHAVEN NURSING AND REHABILITATION CENTER AND DYNASTY HEALTHCARE MANAGEMENT, LLC’S RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE OPINIONS OF GREGORY A. COMPTON, M.D. COME NOW, Defendant DHC OpCo-Carrollton, LLC d/b/a Brookhaven Nursing and Rehabilitation Center, and Dynasty Healthcare Management, LLC (hereinafter referred to as the “Brookhaven Defendants”), and files this, their Response to Plaintiffs’ Motion to Exclude Opinions of Gregory A. Compton, MD, and in opposition thereof, would respectfully show the Court the following: I FACTUAL BACKGROUND 1 This is a health care liability claim related to the care and treatment of Linda Fontenot-Williams provided while she was a patient at multiple facilities in 2019. 2. The Plaintiffs, Franteisha Fontenot, Darren King, Marvin Pride, and Yalonda Wright, Individually and on behalf of the Estate of Linda Fontenot Williams, Deceased have sued BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY A. COMPTON, M.D. — PAGE 1 Brookhaven, Dynasty, and THI of Texas at Richardson, LLC d/b/a The Village at Richardson. (hereinafter referred to as “Village). 3 Ms. Fontenot Williams was a patient at The Village at Richardson from September 25, 2019 until November 14, 2019. She was then transferred to Medical City Dallas Hospital where she remained from November 14, 2019 until December 11, 2019. She was a patient at Brookhaven Nursing and Rehabilitation Center from December 11, 2019 until December 15, 2019. On that date, she was transferred via EMS to Baylor Scott & White Hospital in Carrollton, where she passed away on December 15, 2019. 4 The Plaintiffs have designated Dr. Summit Gupta as an expert in this case on June 1, 2022. A copy of Dr. Gupta’s report is attached hereto as Exhibit “A.” 5 Defendant Brookhaven filed its Expert Designation in this case on July 1, 2022. A copy of Dr. Compton’s report included therein is attached hereto as Exhibit “B.” A copy of Dr. Compton’s curriculum vitae is attached hereto as Exhibit “C.” 6. Co-Defendant THI of Texas at Richardson, LLC d/b/a The Village at Richardson has also designated Dr. Steven Bray on causation issues and a copy of his report is attached hereto as Exhibit “D.” Dr. Bray’s opinions regarding the cause of Ms. Williams’ death differs from Dr. Gupta and Dr. Compton. 7 The cause of death listed on Ms. Williams’ death certificate is listed as: Pulmonary Embolism; Cholecystectomy; and ¢c. High Cholesterol. 8 Smoking was also listed as a significant condition contributing to her death and the manner of her death was listed as natural. No autopsy was performed on Ms. Williams. See Death BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY A. COMPTON, M.D. — PAGE 2 Certificate of Linda Fontenot Williams attached hereto as Exhibit “E.” Instead of letting the jury listen to the testimony of multiple expert witnesses and their reasoning or lack thereof for the same, Plaintiffs seek to keep out any alternate theories at the time of trial which is inappropriate. 9 Plaintiffs filed their Motion to Exclude the Opinions of Dr. Compton on December 22, 2022. Plaintiffs contend that Dr. Compton should not be able to testify on causation issues, essentially because he disagrees with Plaintiffs’ expert on what caused the death of Ms. Fontenot Williams. Defendants would respectfully show that the Plaintiffs’ Motion to Exclude is without merit and should be DENIED. II. SUMMARY OF ARGUMENT 10 The Plaintiffs’ Motion should be denied on the following grounds: Plaintiffs have not objected to Dr. Compton’s qualifications; Plaintiffs have not objected to any of Dr. Compton’s opinions on standard of care; The Plaintiffs’ argument that Dr. Compton’s opinions should be excluded fails in that Dr. Compton properly articulated the underlying facts and data he relied upon in forming his opinions and his testimony is reliable and otherwise admissible. 11. The Brookhaven Defendants attach the following evidence in opposition to Plaintiffs’ motion: Exhibit “A” Report of Summit Gupta, MD; Exhibit “B” Report of Gregory Compton, MD; Exhibit “C” Curriculum Vitae of Gregory Compton, MD; Exhibit “D” Report of Steven Bray, MD; Exhibit “E” Death Certificate of Linda Fontenot Williams; Exhibit “F” Deposition Testimony of Gregory Compton, MD; and Exhibit “G” Carrollton EMS records. BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY A. COMPTON, M.D. — PAGE3 These exhibits are incorporated by reference herein as if fully set forth at length. 12. The Brookhaven Defendants would show that Dr. Compton is qualified to testify on the causation issues in this case, he is qualified on the basis of his education, training and experience as an internal medicine physician, he has scientific, technical and other specialized knowledge that would make his testimony helpful to a jury at the time of trial to explain the care and treatment provided to Ms. Williams at Brookhaven, as well as opine about the potential causes of Ms. Williams’ death. His opinions are relevant and reliable, and he has provided appropriate explanations about the data he has relied upon in forming his opinions. Just because Dr. Compton doesn’t agree with the Plaintiffs’ expert’s theory on the cause of death does not mean his opinions should be excluded. Therefore, Plaintiffs’ Motion to Exclude the opinions of Dr. Compton should be DENIED. Ii. ARGUMENT & AUTHORITIES A. Dr. Compton is Qualified as a Medical Expert in this Case 13. The Plaintiffs have not objected to Dr. Compton’s qualifications to testify in this case. A copy of his curriculum vitae is attached hereto as Exhibit “C.” This is a health care liability claim as defined in TEX. CIv. PRAC. & REM. CODE §74.001(10). Dr. Compton is Board Certified in Internal Medicine and Geriatric Medicine. /d. He is Clinical Assistant Professor at Medicine at Medical University of South Carolina and teaches geriatrics and palliative care. Id. He has also been treating chronically ill patients in hospital and nursing home settings since being licensed in 1980. Jd. 14. Expert testimony on the appropriate standard of care and the breach of that standard is required for a health-care-liability claim because medical standards of care require BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY A. COMPTON, M.D. — PAGE 4 skills not ordinarily possessed by laypersons. Carl J. Battaglia, M.D., P.A. v. Alexander, 177 S.W.3d 893, 899 & n.7 (Tex.2005). 15. Further, Dr. Compton meets the qualifications for an expert, and as an expert on causation pursuant to §74.402and §74.403 of the TEX. Civ. PRAC. & REM. CODE. Plaintiffs have not objected to Dr. Compton’s qualifications. He is qualified as an expert by knowledge, skill, experience, training and education. The Brookhaven Defendants would show that pursuant to Tex. R. EviD. 702, Dr. Compton’s testimony on the medical issues in this case will be helpful to the jury to understand the facts and evidence in this case. B. The Plaintiffs Have Not Objected to Dr. Compton’s Opinions on Standard of Care 16. Likewise, Plaintiffs have not objected to Dr. Compton’s opinions on the standard of care, and that the Brookhaven Defendants met the appliable standard of care in their care and treatment of this patient. Dr. Compton stated on page 3 of his report “[t]he staff of Brookhaven Nursing and Rehab met the standard of care for the supervision and management of Ms. Fontenot Williams while she was a resident. They performed appropriate and timely assessments and notified her physician of the change of condition on 12/14/2019.” See Exhibit “B” at 3. He further opined that “[w]hen the physician was notified he made the determination to treat her in the facility by addressing what appeared to be intravascular volume depletion with IV fluids. The nursing staff followed the physician’s orders.” Jd. 17. Further, while Plaintiffs have complained in this case about the timing of the execution of a chest x-ray in this case, Dr. Compton’s report concluded that “Dr. Patel did not order the chest x-ray stat, therefore the x-ray was requested routine by staff. . . . the absence of the x-ray results did not warrant a stat x-ray order.” Jd. at 4. Dr. Compton noted that it “is not a nursing duty to determine the urgency of an x-ray. Again, the timing of the chest x-ray was a BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY A. COMPTON, M.D. — PAGES physician judgment call. Any contention as to what the x-ray would have uncovered is absolutely speculative.” Jd. at 5. 18. The Plaintiffs’ complaints regarding Dr. Compton center on a specific causation opinion offered by Dr. Compton and they don’t want him to be able to testify to a cause that differs from their own expert or the patient’s death certificate. Nevertheless, the Brookhaven Defendants would show that since there have been no complaints made by the standard of care opinions offered by Dr. Compton, those should not be excluded at the time of trial as a matter of course. C. Dr. Compton’s Opinions are Relevant and Reliable 19. As to the opinions Plaintiffs are complaining about, the Brookhaven Defendants would show that just because the Plaintiffs’ counsel or their expert do not agree with Dr. Compton’s opinions, does not mean they should be excluded at the time of trial. Dr. Compton’s opinions are relevant and reliable pursuant to TEX. R. EviD. 702. Further, he has thoroughly explained the bases for those opinions in his report and in his deposition testimony. 20. With regard to Dr. Compton’s opinions on causation, he states on page 3 of his report that “Ms. Fontenot Williams suffered a sudden cardiac collapse at approximately 17:45 hours on 12/15/2019. When EMS arrived she was still breathing, agonal respirations and was pulseless. Two minutes after CPR and the ACLS protocol was initialed her rhythm was PEA. Her initial rhythm was asystole. She was intubated at the hospital and subsequently died. It is my opinion supported by the EMS personnel that her death was cardiac not respiratory in origin. In essence, she suffered unexpected cardiac collapse. This is sometimes referred to as sudden cardiac death. This is not unusual in a multi-morbid person such as Ms. Fontenot Williams.” See Exhibit “B” at 3. BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY A. COMPTON, M.D. — PAGE 6 21. When determining whether an expert’s opinion is reliable, it is important to look at the connection between the data relied upon and the opinion offered. Southwestern Energy Prod. v. Berry-Helfand, 491 S.W.3d 699, 717 (Tex. 2016). Dr. Compton indeed relates what his opinions regarding causation are based upon. 22. Dr. Compton testified on page 136 of his deposition: Q. (By Ms. Wormington) What is your understanding of what happened on the 15th? A. It is that the nurses noticed a significant change in condition prompting them to call the EMS. 10 and -- I'm pulling the EMS run report -- and the EMS ii arrived on the scene -- I'm looking for the specific oe time. I have the run report in front of me. Their oe first set of vitals was at 17:35. It says assessment 14 time 12/15/2019, 17:30:20, so 17:00 hours, 30 minutes. 15 And they found the patient in their -- in their 16 narrative to have agonal respirations, to be pulseless a and they initiated CPR. And then you can see the time 18 flow of their interventions. You know, 17:35 patient 19 unresponsive. They couldn't record a blood pressure. 20 They couldn't record a pulse. They had a glucose level. 21 And they initiated CPR initially by, you know, chest oe compressions and bag valve mask; and you can follow it 23 on the bottom of page 1 of 3, their interventions. 24 Their diagnosis was that she had a cardiac arrest. See Deposition of Gregory Compton, Exhibit “F” at p. 136, ll. 6-24. 23. Dr. Compton stated that he was relying upon his review of the patient’s medical records at Brookhaven, but also the Carrollton EMS records attached hereto as Exhibit “G.” The top right of page 000001 states the Clinical Impression was “Cardiac arrest.” Page 000002 of the EMS records also states “Pt was pulseless.” CPR was started and “the pt was still pulseless and showing PEA [‘Pulseless Electrical Activity”] on the monitor.” Jd. Again, Dr. Compton has provided a basis for his opinions through his review of the patient’s medical records in this case. 24. Unlike the Plaintiffs’ expert Dr. Gupta whom the Brookhaven Defendants have objected to, Dr. Compton testifies on pages 168-169 of his deposition that myocardial infarction and pulmonary embolus are also possible causes of the patient’s sudden death. See Exhibit “F” BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY A. COMPTON, M.D. — PAGE 7 at p. 168, 1. 20 to p. 170, 1. 5. Pursuant to Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010), “when the facts support several possible conclusions some of which establish that the defendant’s negligence caused the plaintiff's injury, the expert must explain to the fact finder why those conclusions are superior based on verifiable medical evidence, not simply the expert’s opinion.” 25. Plaintiffs’ expert Dr. Gupta opines in his report that Ms. Williams’ death was caused as a result of respiratory distress and contends the only cause of that was IV fluids, respiratory distress and pulmonary edema. See Exhibit “A.” The Brookhaven Defendant’s physician expert, Dr. Gregory Compton, opines that Ms. Williams’ death was as a result of a sudden cardiac collapse. See Report of Gregory Compton, MD attached hereto as Exhibit “B.” Co-Defendant’s MD expert, Dr. Steven Bray states in his report that cause of death listed on death certificate was pulmonary embolism. Her death was a result of a blood clot to the lung. See Report of Dr. Steve Bray attached hereto as Exhibit “D” at page 5. Dr. Gupta fails to consider any possible cause of death other than his own opinion. As such, his opinion is conclusory and ureliable. 26. Unlike Dr. Gupta, Dr. Compton has, in fact, considered several possible conclusions for the patient’s death, while Plaintiffs and their expert have only considered respiratory distress as a cause of the patient’s death. Dr. Compton testified that he believed Ms. Williams heart stopped as a result of an arrhythmia rather than a pulmonary embolism or respiratory distress. See Deposition of Gregory Compton, Exhibit “F” at p. 169, 1. 17 — p. 170, line 5. He stated that: 17 Q. Your opinion is that her heart stopped because 18 of an arrhythmia; you don't know why the arrhythmia 19 occurred, but that's what caused her to die? 20 A. Yeah, she had a -- she had a cardiac -- she 21 either had asystole or PEA and -- it was a cardiac event ae and she -- and we can exclude volume overload, we can 23 exclude pulmonary edema, we can exclude ARDS because the 24 EMS, when they had a bag mouth -- bag mask -- bag valve -_ mask, BVM, did not hear any respiratory crackles or rales. BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY A. COMPTON, M.D. — PAGES 27h Dr. Compton further explained his reasoning during the deposition. Plaintiffs’ counsel and her expert’s theory is that this patient had pulmonary edema as a result of fluid overload. Dr. Compton testified that if the patient had pulmonary edema “the doctor or examiner may hear abnormal breath sounds like crackles or rales.” /d. at p. 82, ll. 8-9. He further expands on this and says that: 10 A. It's my opinion that the lack of crackles when 11 they listened to her lungs while being bagged and 12 intubated negated the fact that she was volume fee overloaded to the extent that she had pulmonary edema or 14 any other condition that might -- that you might expect 15 to hear rales in. In other words, if she had pulmonary 16 edema or ARDS or some other thing that's going to fill 17 up her alveoli with fluid, you're going to hear 18 something; and that was not heard by trained 19 professionals Id. at p. 175, ll. 10-19. 28. Based upon these specific findings in the patient’s medical records, Dr. Compton concludes that “after my analysis of the record, iit was not a respiratory event. I can exclude the respiratory aspect of the PEA [“Pulseless Electrical Activity”].” Jd. at p. 170, Il. 9-18. Other specific testimony which supported Dr. Compton’s opinions on causation and ruled out the Plaintiffs and their expert’s theory is on page 188 of his deposition where he states: 14 Q. How does that support your opinion that she had 15 aspontaneous arrhythmia that caused her heart to stop? 16 A. Because she's still breathing. If she stopped 17 breathing and then it caused a cardiac event, she 18 wouldn't still be breathing. Id. at p. 188, Il. 2-18. Dr. Compton concludes that if Plaintiffs theory was that a respiratory event caused a cardiac event, the patient would have no longer been breathing when EMS personnel arrived. Id. BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY A. COMPTON, M.D. — PAGE 9 29. In response to some of the specific issues raised in Plaintiffs’ Motion, Plaintiffs cite Gharda USA, Inc. v. Control Solutions, Inc., 464 S.W.3d 338, 349 (Tex. 2015) and state “[t]he goal of a court’s reliability analysis is not to make a definitive determination of the merits of the expert’s opinions, but rather to question whether the analysis used to construct those opinions is reliable.” The Brookhaven Defendants would show that Dr. Compton has appropriately provided details regarding what his opinions are and has provided the analysis he used to construct those opinions. 30. There is not an analytical gap in Dr. Compton’s opinions, but instead in Dr. Gupta’s where he only considers one cause of death, fails to consider alternate theories, and speculates as to what the results of the patient’s chest x-ray would or would not have been in this case. 31. Plaintiffs further complain that Dr. Compton did not cite to medical literature in forming his opinions. There is no “authority that an expert must refer to authoritative literature or medical studies in order for the expert’s opinion to be reliable.” Keo v. Vu, 76 S.W.3d 725, 735 (Tex. App.--Houston [1st Dist.] 2002, pet. denied). Plaintiffs’ counsel was questioning Dr. Compton regarding oxygen saturations and stated: Q. (By Ms. Wormington) And what literature do you rely on to say that saturation in the 80s is not sufficient hypoxia to cause PEA? A. That's just common knowledge. You don't need literature for that. That's just -- shucks, there are people with -- walking around with COPD in Walmart with 2 sat on their nose -- 02 on their nose, walking around with 85s. See Exhibit “F” at p. 172, ll. 1-8. Plaintiffs’ counsel’s questions on this topic were argumentative and there was no need for him to provide medical literature when his testimony was based upon his education, training and experience while Plaintiffs’ have not objected to his qualifications in this case. BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY A. COMPTON, M.D. — PAGE 10 32. “The trial court is not to determine whether the expert’s conclusions are correct, but only whether the analysis used to reach them is reliable.” Keo, 76 S.W.3d at 734. Dr. Compton has thoroughly explained his causation opinions on the cause of Ms. Williams’ death and has described what his analysis was to reach them. As such, they should not be excluded at the time of trial of this case. 33. Dr. Compton’s opinions are well-reasoned and based upon the facts and evidence in this case, as well as the doctor’s education, training, and experience. Further, he complies with the requirements of Jelinek and considers alternate possible causes of the patient’s death and provides the basis for his analysis and opinions in this case. As such, Dr. Compton’s opinions should be admitted at the time of trial and the Plaintiffs’ Motion to Exclude should be DENIED. IV. CONCLUSION The Brookhaven Defendants would show that Dr. Compton is qualified to testify on the causation issues in this case, he is qualified on the basis of his education, training and experience as an internal medicine physician, he has scientific, technical and other specialized knowledge that would make his testimony helpful to a jury at the time of trial to explain the care and treatment provided to Ms. Williams at Brookhaven, as well as opine about the potential causes of Ms. Williams’ death. His opinions are relevant and reliable, and he has provided appropriate explanations about the data he has relied upon in forming his opinions. Just because Dr. Compton doesn’t agree with Plaintiffs’ counsel or her expert’s theory on the cause of death does not mean his opinions should be excluded. Therefore, Plaintiffs’ Motion to Exclude the opinions of Dr. Compton should be DENIED. BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY A. COMPTON, M.D. — PAGE 11 WHEREFORE, PREMISES CONSIDERED, the Brookhaven Defendants pray that the Court DENY Plaintiffs’ Motion to Exclude the causation opinions of Gregory Compton, MD. The Brookhaven Defendants further pray for such other relief, at law or in equity to which they may be justly entitled. Respectfully submitted, QUINTAIROS PRIETO WOOD & BOYER, P.A By: /s/ WendyA. McMillon FRANK ALVAREZ State Bar No. 00796122 frank.alvarez@qpwblaw.com WENDY A. McMILLON State Bar No. 00790100 wendy.memillon@gpwblaw.com 1700 Pacific Ave, Suite 4545 Dallas, Texas 75201 Telephone: (214) 754-8755 ATTORNEYS FOR DEFENDANT DHC OPCO-CARROLLTON, LLC DBA BROOKHAVEN NURSING AND REHABILITATION CENTER AND DYNASTY HEALTHCARE MANAGEMENT, LLC BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY A. COMPTON, M.D. — PAGE 12 CERTIFICATE OF SERVICE The undersigned certifies that on the 6th day of March, 2023, a true and correct copy of the foregoing document was served in compliance with the Texas Rules of Civil Procedure upon all counsel of record, as indicated below: Maria Wormington Lori D. Proctor David Benford Coleman Proctor Wormington & Bollinger Wilson Elser Moskowitz Edelman & Dicker 212 East Virginia Street LLP McKinney, TX 75069 909 Fannin Street, Suite 3300 Telephone: (972) 569-3930 Houston, Texas 77010 Facsimile: (972) 547-6440 (713) 353-2000 — Telephone Maria@wormingtonlegal.com (713) 785-7780 — Facsimile David@ wormingtonlegal.com Lori.Proctor@wilsonelser.com Cole.Proctor@wilsonelser.com Attorneys for Plaintiff Attorney for Defendant THI of Texas at Richardson d/b/a The Village at Richardson /s/ Wendy A. McMillon Wendy A. McMillon BROOKHAVEN DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE REGARDING GREGORY A. COMPTON, M.D. — PAGE 13 EXHIBIT A CAPITAL PRIMARY & GERIATRIC CARE Summit Gupta, MD 8609 Westwood Center Drive Suite 110 Vienna, VA 2182 443-421-6815 Medical Expert Report: Linda Fontenot vs. Brookhaven Nursing & Rehabilitation Center and The Village at Richardson Maria Wormington Wormington & Bollinger 212 East Virginia Street McKinney, Texas 75069 I Medical Expert Qualifications My name is Summit Gupta, MD, and I am a licensed physician practicing in Maryland and Virginia. I am board certified through the American Board of Internal Medicine in internal medicine and geriatric medicine. I earned a Bachelor of Science in Biomedical Engineering from the University of Pennsylvania prior to earning a Doctor of Medicine from Duke University School of Medicine. I then completed my residency in internal medicine at Franklin Square Hospital Center in Baltimore, Maryland. Thereafter I worked as a hospitalist providing inpatient care prior to completing a fellowship in geriatric medicine at the University of Maryland in Baltimore, Maryland. Since 2009 I have been in private practice in medicine. This has included caring for patients admitted to the hospital and to a greater extent caring for patients residing in nursing facilities. With reference to the above, I have extensive experience and expertise in caring for patients with medical conditions similar to Linda Fontenot (“LF”) including but not limited to dementia, acute respiratory distress syndrome (“ARDS”), pneumonia, gallstone pancreatitis (“GP”), systemic inflammatory response syndrome (“SIRS”), sepsis, and pulmonary edema. Of more pertinence, I have cared for patients similar to LF at facilities similar to Brookhaven Nursing & Rehabilitation Center (“BNRC”), Village at Richardson (“VR”), and Medical City Dallas Hospital (“MCD”). I have kept up to date on the standards of care and my below expert assessment of the case reflects the standard of care at the time these facilities were providing care to LF. Resources that I implement to maintain my knowledge of the current standard of care include but are not limited to evidence-based and peer reviewed studies, articles, and guidelines, particularly through the UpToDate clinical resource system. 1 am very familiar with the medical topics that are the subject matters of this case. These medical topics include but are not limited to: ARDS, pulmonary edema, and respiratory failure including hypoxic respiratory failure Pneumonia GP Hypotension SIRS and sepsis including septic shock Cholecystectomy and post-surgical debility including post-surgical sedation Abdominal pain (“AP”) Recognizing symptoms and signs of “serious” etiologies of AP including GP as well as ARDS/pulmonary edema that warrant emergent referral to the emergency room/hospital for further evaluation and management. In addition, communication of these symptoms and signs from the nursing home staff to healthcare providers such as physicians, nurse practitioners (“NP), and physician assistants as well at to the patient’s family/next of kin Proper evaluation of and patient monitoring to prevent ARDS/pulmonary edema and the tole of chest x-ray (“CXR”) in this clinical management Indications for and proper patient monitoring of intravenous fluid (“IVF”) administration in a patient at high risk for ARDS/pulmonary edema Interdisciplinary care in the geriatric/nursing home population Proper assessment, care planning, and documentation of the above medical topics in the nursing home Legal definitions My service in nursing facilities enables me to properly assess the level of care that facility staff similar to that of BNRC and VR should provide for its patients. Such staff includes but are not limited to nurses, nutritionists, nursing assistants, physicians, nurse practitioners, physician assistants, physical therapists, occupational therapists, and speech therapists. Iam very conversant in how a multidisciplinary team incorporating these healthcare providers should evaluate and care for patients with medical conditions similar to LF. My assessment documented in this report are based on my education, training, research, and clinical experience. My resume is attached and serves as a reference for this report. My assessment is based on a reasonable degree of medical probability and is based on my review of the below records, yet I reserve the right to modify this assessment within the context of additional information that is presented to me. For preparing for this report, I reviewed the following medical records pertaining to this case: . Plaintiffs’ 2"! Amended Original Petition . Medical records from BNRC and VR including but not limited to staff schedules, facility policy & procedures, facility clinical protocols including the Intravenous Administration of Fluids & Electrolytes policy for BNRC, census reports, personnel files, and position descriptions, Deposition testimony from Bernadette Musa, CNA, Bertha Hunzwi, RN, Britney Ross, CNA, Israel Lopez, LVN, Muna Kebede, LVN, Ngozi Obi, LVN, Pabitra Kadariya, CNA, Veronica Idibia, LVN, Yalonda Wright, with exhibits Deposition testimony from LF’s daughter, Franteisha Fontenot and son, Darren King. 2 Medical records from MCD and Baylor Medical Center at Carrollton (“BMC”) Medical records from Carrollton Fire Rescue (“CFR”) and Richardson Fire Department (“RED”) Defendant BNRC’s Objections & Responses to Plaintiff's First Requests for Production Affidavit of Troy Issac (“TY”) Audio recording of BNRC staff ordering CXR for LF from Stat X-Ray of Texas, Inc (“SXR”) Death Certificate of LF Department of Health & Human Services Centers for Medicare & Medicaid Services teports on BNRC and VR IL. Synopsis of Pertinent Clinical History In September, 2019, LF was a 66-year-old female with a history of dementia. She completed her hospitalization for dehydration with hypotension. Her family admitted her to VR to care for her. She was ambulatory with no significant cardiopulmonary co-morbidities. On November 13, 2019, LF fell and suffered AP and emesis. These symptoms persisted and she clinical deteriorated to where she become very lethargic. Her daughter was visiting the patient and had her present to the MCD ER via 911 emergency transportation on November 14. At MCD, LF was found to be lethargic, confused, with hypotension on admission. She was found to have GP and from it suffered ARDS with pneumonia. Her debilitated state precluded immediate surgery to remove the gallbladder to treat the pancreatitis. She was resuscitated with IVF to treat her hypotension, put on a clear liquid diet to alleviate her pancreatitis, supported with supplemental oxygen to treat her ARDS, and given antibiotics to treat her pneumonia. Although greatly debilitated, she improved enough to undergo the cholecystectomy on December 5. LF suffered significant complications during the hospitalization related to her GP. These included but were not limited to ARDS, pneumonia, SIRS/sepsis, clostridium difficile colitis (“C diff’), dysphagia, tachycardia, severe deconditioning/lethargy, hypotension, fever, hypernatremia, acute renal failure, and increased aspiration risk. LF was discharged to BNRC on December 11. She had persistent weakness/lethargy. In response BNRC instituted IVF on December 14 to restore the patient’s strength. However, LF’s ARDS/pulmonary edema recurred while she was receiving IVF. This progressed to where she suffered considerable respiratory distress with hypotension on December 15 while still receiving IVF. Emergency medical services was summoned. They found her to be unconscious with no pulse. Cardiopulmonary resuscitation was initiated and she was transferred to BMC where she was pronounced dead. lll. Breaches in the Standard of Care of LF by VR Failure Properly Evaluate LF’s AP At VR, LF fell on November 13 and suffered AP and emesis. Prior to that she was able to ambulate well with no deficits in mobility noted in her Braden and fall risk assessments. She also did not suffer from significant falls prior to that. Furthermore, AP and emesis were new symptoms for her. This signaled serious pathology and warranted an abdominal exam by VR to evaluate these symptoms. However, this was not done at VR. Instead, an abdominal exam was done in the MCD ER the next day. This revealed diffuse abdominal tenderness. Within a reasonable degree of medical probability, this tenderness would be been discovered by VR had they performed the abdominal exam on November 13. This would have signaled a serious condition that was later diagnosed as GP. Within a reasonable degree of medical probability, an abdominal exam by VR on November 13 would have steered the healthcare providers to send the patient to the ER on that day. Within a reasonable degree of medical probability, this earlier presentation to the ER would have significantly alleviated LF’s drastic hospital course at MCD. This mitigation in the clinical course is further speculated below. The depositions of the VR staff, Israel Lopez, LVN, Muna Kebede, LVN, Pabitra Kadariya, CNA, and Brittney Ross, CNA pointed to how these providers recognized that AP, fall, and nausea/vomiting can signal a serious medical condition. Therefore, the fact that no abdominal exam was performed on November 13 demonstrated serious disregard in VR’s care of LF. Inadequate Documentation of LF’s Clinical Condition The standard of care is for the VR nursing staff to assess LF daily and document accordingly. However, the most recent such documentation prior to November 13 was November 1. This signaled that the nurses were not assessing LF daily prior to November 13. Such daily assessment may have revealed earlier symptoms of the GP including but not limited to AP. This could have allowed VR to send the patient earlier to the hospital. This would have allowed for an earlier cholecystectomy to prevent much of the complications of the GP. However, no such assessments were done to enable this earlier treatment for LF. Failure to Properly Communicate LF’s Poor Clinical Condition to the Family and the Healthcare Providers VR documented notifying the physician of the patient’s fall, AP, and emesis at 4pm on November 13, when this occurred. However, the patient continued to have AP and nausea up to at least 9pm. VR did not notify the NP or the physician at that time that these symptoms persisted. Through her deposition, Franteisha Fontenot noted that she was not told by VR about her mother vomiting. LF became significantly ill on November 14. This supports that at the very least LF was considerably sick the day before. Within a reasonable degree of medical probability, VR failed to delineate the degree to which LF was ill to the physician/NP. Had this communication been done diligently by VR, the physician/NP may have had enough clinical information to judge that LF warranted hospital ER presentation on November 13 within a reasonable degree of medical probability. Furthermore, had VR communicated the patient’s vomiting to the daughter, she would have had more appreciation of how sick her mother was and been able to better determine whether she needed emergent hospital care. However, VR breeched the standard of care by not properly communicating the great degree LF was ill to the physician/NP and her family. Failure to Send LF to the Hospital in a Timely Fashion The standard of care dictates that VR should have sent LF to the ER on November 13. LF had fallen and had AP and vomiting. All of this were new for her. VR did not require a physician/NP to order this transfer. VR had enough clinical information through their direct patient assessment to make the decision to transfer the patient to the ER on November 13. LF was transferred to the ER via emergent 911 communication only at the behest of her daughter who assessed her mother at the facility on November 14. Prior to that VR ordered non-emergent transportation which delayed LF’s presentation to the ER. Had the daughter not instigated the emergent 911 mediated transportation, LF’s critical hospital care would have been further delayed. The delay of hospital care from November 13 to 14 is noteworthy in this case. LF suffered from GP including its complications of lethargy, hypotension, and ARDS/pneumonia. This prevented immediate cholecystectomy to treat the pancreatitis. This in turn propagated the pancreatitis and the ensuing complications to be further discussed below. Had VR sent LF to the hospital on November 13, within a reasonable degree of medical probability, LF would have been in a clinical state to tolerate the cholecystectomy on around November 13/14. This would have enabled earlier treatment of the pancreatitis and hence the prevention of much of its SIRS related complications. IV. Breaches in the Standard of Care of LF by BNRC Failure to Properly Evaluate LF’s Weakness/Lethargy and Communicate this to the Family and the Healthcare Providers LF was in a very weak debilitated state when she presented to BNRC on December 11 upon her discharge from MCD. VR should have accurately communicated her condition to the family and the physician. Collectively these parties could have decided to transfer LF back to the hospital for further care in order to improve her strength and mentation. However, no such communication was made to enable this decision making. Inappropriate Administration of IVF and Failure to Properly Monitor IVF Administration Including Failure to Properly Implement CXR and Measure Ins/Outs BNRC delayed their feedback to the physician on LF’s condition until December 14. No meaningful communication between BNRC and the physician was done prior to that. LF suffered from ARDS at MCD as a complication from her prolonged course of GP. In ARDS, the pulmonary blood vessels are more permeable. This increased permeability results in pulmonary edema which is fluid accumulation in the lungs. In ARDS, fluid administration is often restricted to prevent this condition. This is exemplified by the cautious manner in which MCD administered IVF to LF. In fact, upon her discharge, MCD was not treating LF with IVF. Presumably, MCD was mindful of LF’s ARDS condition and restricted IVF to prevent pulmonary edema which is the defining characteristic of ARDS. LF was still recovering from her ARDS and she still had increased pulmonary vascular permeability as part of this syndrome. BNRC presumably implied to the physician that LF was dehydrated on December 14. As such LF was given IV. In fact, LF was lethargic > due to the residual ARDS. As such the IVF caused the pulmonary edema as part of the ARDS spectrum. With the IVF continuing into December 15, the accumulation of pulmonary edema led to respiratory distress and eventually respiratory failure that led to cardiac arrest and death. Through their depositions, Darren King and Franteisha Fontenot support that the patient suffered from respiratory distress after IVF was initiated at BNRC. Furthermore, BNRC initiated supplemental oxygen via nasal cannula after IVF implementation. These point to LF suffering from respiratory distress from pulmonary edema due to the IVF. Likewise, LF began to suffer from hypotension during this period. This supports that LF had SIRS as part of her ARDS spectrum. In SIRS, patients can suffer from hypotension due to inflammation from an underlying condition. In this case the underlying cause was the ARDS with pulmonary edema being exacerbated by IVF. BNRC documented that LF had edema on their assessment on December 15. This was new from previous days. This indicates soft tissue accumulation of fluid from the IVF that BNRC was able to appreciate on their examination of LF. This supports similar accumulation of fluid in the lungs in the form of pulmonary edema. BNRC also failed to measure the patient’s “Ins/Outs” when they administered the IVF. This entails measuring the volume of input in the form of IVF and oral and comparing with the “output” mainly in the form of urinary excretion. This allows the facility to gauge a net fluid accumulation that would signal the onset of pulmonary edema. This is the standard of care for patients receiving IVF, especially those at high risk of pulmonary edema from IVF including those suffering from ARDS like LF did. BNRC’s facility policy on IVF dictates this form of monitoring in such high-risk patients, yet they did not institute this protocol accordingly. Furthermore, MCD diligently measured this fluid balance as part of the standard of care. Within a reasonable degree of medical probability, had BNRC measured this fluid balance, it would have been significantly positive at the end of the first shift it was administered alerting them and the physician of the impending pulmonary edema. This likely would have prompted the provideran to discontinue the IVF and prevent the pulmonary edema that led to the patient’s death. The physician ordered a CXR the evening of December 14 at the onset of the [VF administration to be done the morning of December 15. This was done presumably to screen for pulmonary edema in the face of the patient recovering from ARDS receiving IVF. The CXR was never done and BNRC never followed up with SXR to ensure this critical study was done. Furthermore, BNRC never informed the radiology company that the CXR was to be done the morning of December 15, not when it was ordered on the 14" nor when the nurse called the morning of the 15" at which time she should have informed the radiology company that it needed to be done with heightened “stat” or “urgent” priority, which is appropriate given the critical state of the patient. The affidavit of TI and the audio recording between BNRC and SXR attests to the inappropriate disregard in priority BNRC gave for the CXR order. Had BNRC properly instituted the CXR with increased priority and followed up/properly communicated this order, within a reasonable degree of medical probability, the CXR would have been done and the affidavit of TI verifies that this in fact would have occurred. Within a reasonable degree of medical probability, the CXR would have revealed pulmonary edema that would have allowed 6 the providers to discontinue the IVF and send the patient to the ER for more urgent management of the pulmonary edema including diuretics and respiratory support which in reasonable probability would have saved her life. The BNRC nurse, Ngozi Obi, LVN, notes via deposition the pathophysiology of pulmonary edema from IVF and emphasizes the importance of patient monitoring to prevent this condition. The nurse also recognizes the importance of edema signaling fluid overload. This emphasizes the considerable negligence BNRC demonstrated in failing to monitor and prevent the pulmonary edema in a patient recovering from ARDS receiving IVF. Inappropriate Administration of Hypertension Medication in a Hypotensive Patient. LR was prescribed Zestril to treat her hypertension at BNRC. It was ordered to be held if the blood pressure was low. This contingency is the standard of care for hypertension management in the nursing facility. On December 14, LF began to suffer from her recurrence of ARDS with SIRS. This was manifested as hypotension. As such the Zestril should not have been given on that day per its ordered restriction guidelines. However, it was inappropriately given further exacerbating the hypotension. Eventually, this hypotension from the SIRS along with the respiratory distress from the IVF instigated pulmonary edema would combine to lead to the fatal cardiac arrest. Through deposition, Ngozi Obi, LVN admitted to the incorrect administration of the Zestril on December 14. The nurse noted that the Zestril should have not been given on that day. Failure Properly Evaluate LF’s Overall Clinical Condition Including Respiratory Distress and Failure to Communicate this to the Family and the Healthcare Providers LF suffered from considerable weakness/lethargy from the onset of her stay on BNRC on December 11. She was not able to eat or recuperate from her illness, mainly ARDS. BNRC failed to communicate LF’s poor clinical condition to the family and the physician. Had BNRC effectively communicated this, these parties could have de