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Motion No. 5132175
NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
MOTION TO...
November 17,2023 16:33
By: PAMELA E. PANTAGES 0046840
Confirmation Nbr. 3021378
SHERRY RAY ALEXANDER, ETC. CV 23 976439
vs.
Judge: DEENAR. CALABRESE
UNIVERSITY HOSPITALS HEALTH SYSTEM, ET AL.
Pages Filed: 6
Electronically Filed 11/17/2023 16:33 / MOTION / CV 23 976439 / Confirmation Nbr. 3021378 / CLDLJ
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
Sherry Ray Alexander, etc. ) Case No. CV-22-967204
)
Plaintiff, ) (Consolidated Case: CV-23-976439)
)
vs. ) Judge Deena R. Calabrese
)
University Hospitals Health ) PLAINTIFF’S THIRD MOTION TO
System, Inc., et al., ) COMPEL DISCOVERY AND FOR A
) TELEPHONE STATUS CONFERENCE TO
Defendants. ) SET A DISCOVERY RESPONSE DEADLINE
Plaintiff, through counsel and pursuant to Civ.R. 26, 33, 34 and 37, submits this Third
Motion to Compel Discovery, respectfully requesting this Court for an order compelling
Defendant University Hospitals Health System (UH) to provide complete and meaningful
responses to outstanding discovery by a date certain. Plaintiff also requests this Court to set a
telephone conference for the purpose of setting that date.
On November 3, 2023, in response to Plaintiff's Second Motion to Compel Discovery,
Defendant UH filed a brief in opposition, claiming that it had responded to Plaintiff's Third,
Fourth and Fifth Sets of Document Requests. This is only partially accurate. UH’s responses to
Plaintiff's Fifth Set of Document Requests were predominantly incomplete.
After receipt of Defendant UH’s incomplete discovery responses, counsel for Plaintiff
immediately reached out to defense counsel at least twice to inquire about substantially missing
documents that are actually referenced in Mrs. Alexander's medical records. On November 4
and again on November 10, 2023, Plaintiff's counsel indicated to counsel for UH that:
Respectfully, Defendants’ responses to Plaintiff’s Fifth Set of Request for
Production of Documents are incomplete. The hospital policies attached to your
responses were responsive only to Document Request 1(a), and Document
Requests 1(o-s).
Electronically Filed 11/17/2023 16:33 / MOTION / CV 23 97643d/ Confirmation Nbr. 3021378 / CLDLJ
Regarding Plaintiff’s Fifth Set of Request for Production of Documents, kindly
also respond to Document Requests 1(b - i), which relate to specific references
in Mrs. Alexander’s medical record to other UH policies, which are relevant to
her care:
• Hypoglycemia Protocol referred to at pages UHPORTAGE000084, 000279
• ACLS Protocol referred to at page UHPORTAGE000166
• Hypothermia Protocol referred to at pages UHPORTAGE000253, 000386
• ABCDEF Protocol referred to at pages UHPORTAGE000314, 000399
• Hyperkalemia Protocol referred to at page UHPORTAGE000401
• Oxygen Weaning Protocol referred to at page UHPORTAGE000543
• “Goals of care” referred to at pages UHPORTAGE000118, 000412, 000413
• Terminal extubation referred to at pages UHPORTAGE000253, 000386
Additionally, this is to again request UH policies (Document Request No. 1(j-n))
regarding:
• Richmond Agitation Scale (RASS)
• Cardiac Arrest
• Resuscitation
• Fluid Resuscitation
• Hypotension
Kindly also respond to Document Request No. 2 (“Any index from any hospital
unit or department containing or identifying the protocols, policies, guidelines
or rules sought in the above Document Request No. 1.”)
Defense counsel has not responded to Plaintiffs longstanding requests for written UH
policies, many of which are specifically referenced in Mrs. Alexander’s medical records.
In addition to the outstanding written UH policies, counsel for Plaintiff has repeatedly
requested pursuant Civ.R. 30(B)(5), UH employee(s) with knowledge, custody and control of:
• The UH Portage Health ICU monitoring machine in use on March 15 and
March 16, 2023, and
• Resulting and reporting of Mrs. Alexander’s blood pressures of 226/99, 81/62
and 40/27, and any other blood pressures resulted between 17:00 and 19:30 on
March 15, 2022, and
• Resulting and reporting of Mrs. Alexander’s mean arterial pressures of 131,
67 and 34, and any other mean arterial pressures resulted between 17:00 and
19:30 on March 15, 2022, and
• and can also answer questions regarding:
Electronically Filed 11/17/2023 16:33 / MOTION / CV 23 976435?/ Confirmation Nbr. 3021378 / CLDLJ
1. The make, model and name of the ICU monitoring machine attached to Mrs.
Alexander when she was received as a patient of the UH Portage ICU that
Nurse Amelia Oaks referred to at her deposition on October 25, 2023.
2. The manner in which ICU nurses could set time intervals for monitoring
blood pressures and mean arterial pressures on the ICU monitoring machine as
described in Nurse Oaks’s deposition.
3. The manner in which interval blood pressures and mean arterial pressures
were displayed in real time.
4. The manner in which interval blood pressures and mean arterial pressures
were documented in real time in Mrs. Alexander’s electronic medical record.
5. The manner in which interval blood pressures and mean arterial pressures
were saved in the ICU monitoring machine.
6. How long the interval blood pressure data were preserved in the ICU
monitoring machine.
7. The manner in which a nurse could retrieve blood pressure data in the hours
or days after said data was obtained.
8. The procedure Nurse Oaks described as “authenticating” the blood pressure
data, either in real time as the data is displayed on the ICU machine displayed,
or when a nurse retrieves the data at a later date, as Nurse Oaks described
doing after her shift ended on March 15, 2022.
9. Whether any UH employee accessed the ICU machine for Mrs. Alexander’s
blood pressure data on March 15, 2022, March 16, 2022, or any time after her
death, and the evidence documenting that access.
10. Whether any UH employee took any steps to preserve Mrs.
Alexander’s blood pressure data any time after her death on March 16, 2022 to
the present, and the evidence documenting that preservation.
11. Whether any UH employee took any steps to delete Mrs. Alexander’s
blood pressure data any time after her death on March 16, 2022 to the present,
and the evidence documenting that deletion.
12. The alarm system for abnormal vital signs for the ICU machine in use
for Mrs. Alexander on March 15 and March 16, 2022.
13. Whether there is an audit trail connected to the ICU machine in use
for Mrs. Alexander on March 15 and March 16, 2022, containing information
Electronically Filed 11/17/2023 16:33 / MOTION / CV 23 97643$/ Confirmation Nbr. 3021378 / CLDLJ
regarding UH employees setting timing parameters, changing timing
parameters, authenticating data, downloading data from the ICU monitoring
machine to the patient’s electronic medical record, initiating alarm settings,
turning off alarms, or any other information provided by an audit trail.
14. UH written policies regarding ICU monitoring.
15. The manufacturer’s users manual for the ICU monitoring machine in
use during Mrs. Alexander’s ICU admission on March 15 and March 16, 2022.
• The UH Portage Health lab procedures in effect on March 15 and March 16,
2023, and can answer questions regarding:
1. UH Portage Health lab written policies.
2. Lab turn-around time for analyzing and resulting lab orders entered as stat,
nonstat and routine.
3. Issues relating to Mrs. Alexander’s blood samples that the lab determined
were unable to be analyzed, and/or were unreliable.
4. Issues relating to those lab orders the lab received and then reported as
cancelled.
5. The delay in resulting the comprehensive metabolic panel that was amongst
stat orders for blood studies entered at 17:42 on March 15, 2022, but not
resulted until 19:27.
6. Documentation of lab samples arriving in the lab from the ICU as Nurse
Oaks described in her deposition, including times received and times resulted.
UH has not provided complete responses to long outstanding discovery - document
responses and 30(B)(5) deponents -- nor has their counsel provided any reasonable time frame
for completion of these obligations. In the meantime, Plaintiff is making every effort to meet
this Court’s expert report deadline with incomplete evidence. Therefore, Plaintiff again
respectfully requests the assistance of this Court in setting a deadline by which UH’s complete,
formal discovery responses are to be produced. Plaintiff also respectfully requests this Court to
Electronically Filed 11/17/2023 16:33 / MOTION / CV 23 976439/ Confirmation Nbr. 3021378 / CLDLJ
set a telephone conference as soon as possible in order to resolve these long outstanding
discovery issues.
Respectfully submitted,
/s/ Pamela Pantages_______
Pamela Pantages, Esq. (0046840)
Nurenberg Paris Heller & McCarthy Co., LPA
600 Superior Avenue East, Suite 1200
Cleveland, Ohio 44114
(216)621-2300; (216)771-2242 fax
ppantages@nphm.com
One of Counsel for Plaintiff
Electronically Filed 11/17/2023 16:33 / MOTION / CV 23 976439’/ Confirmation Nbr. 3021378 / CLDLJ
Certificate of Service
The foregoing was served via the Cuyahoga County Clerk of Court’s electronic filing
system and by courtesy e-mail on this 17th day of November 2023 to:
Jeanne M. Mullin, Esq. Counsel for Defendants
Matthew J. Turkalj, Esq. University Hospitals Health System, Inc. and
Perez & Morris, LLC University Hospitals Portage Medical Center
1300 East Ninth Street, Suite 1600
Cleveland, Ohio 44114
jmullin@perez-morris.com
mturkalj@perez-morris.com
Ryan K. Rubin, Esq. Counsel for Defendants
Emily Davis, Esq. Safe Anesthesia Geneva, LLC; and
Lewis Brisbois Bisgaard & Smith, LLP Todd Zets, CRNA
1375 East 9th Street, Suite 2250
Cleveland, Ohio 44114
ryan.rubin@lewisbrisbois.com
emily.davis@lewisbrisbois.com
/s/ Pamela Pantages
Pamela Pantages, Esq. (0046840)
Electronically Filed 11/17/2023 16:33 / MOTION / CV 23 976439/ Confirmation Nbr. 3021378 / CLDLJ
Preview
Motion No. 5132175 NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas MOTION TO... November 17,2023 16:33 By: PAMELA E. PANTAGES 0046840 Confirmation Nbr. 3021378 SHERRY RAY ALEXANDER, ETC. CV 23 976439 vs. Judge: DEENAR. CALABRESE UNIVERSITY HOSPITALS HEALTH SYSTEM, ET AL. Pages Filed: 6 Electronically Filed 11/17/2023 16:33 / MOTION / CV 23 976439 / Confirmation Nbr. 3021378 / CLDLJ IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO Sherry Ray Alexander, etc. ) Case No. CV-22-967204 ) Plaintiff, ) (Consolidated Case: CV-23-976439) ) vs. ) Judge Deena R. Calabrese ) University Hospitals Health ) PLAINTIFF’S THIRD MOTION TO System, Inc., et al., ) COMPEL DISCOVERY AND FOR A ) TELEPHONE STATUS CONFERENCE TO Defendants. ) SET A DISCOVERY RESPONSE DEADLINE Plaintiff, through counsel and pursuant to Civ.R. 26, 33, 34 and 37, submits this Third Motion to Compel Discovery, respectfully requesting this Court for an order compelling Defendant University Hospitals Health System (UH) to provide complete and meaningful responses to outstanding discovery by a date certain. Plaintiff also requests this Court to set a telephone conference for the purpose of setting that date. On November 3, 2023, in response to Plaintiff's Second Motion to Compel Discovery, Defendant UH filed a brief in opposition, claiming that it had responded to Plaintiff's Third, Fourth and Fifth Sets of Document Requests. This is only partially accurate. UH’s responses to Plaintiff's Fifth Set of Document Requests were predominantly incomplete. After receipt of Defendant UH’s incomplete discovery responses, counsel for Plaintiff immediately reached out to defense counsel at least twice to inquire about substantially missing documents that are actually referenced in Mrs. Alexander's medical records. On November 4 and again on November 10, 2023, Plaintiff's counsel indicated to counsel for UH that: Respectfully, Defendants’ responses to Plaintiff’s Fifth Set of Request for Production of Documents are incomplete. The hospital policies attached to your responses were responsive only to Document Request 1(a), and Document Requests 1(o-s). Electronically Filed 11/17/2023 16:33 / MOTION / CV 23 97643d/ Confirmation Nbr. 3021378 / CLDLJ Regarding Plaintiff’s Fifth Set of Request for Production of Documents, kindly also respond to Document Requests 1(b - i), which relate to specific references in Mrs. Alexander’s medical record to other UH policies, which are relevant to her care: • Hypoglycemia Protocol referred to at pages UHPORTAGE000084, 000279 • ACLS Protocol referred to at page UHPORTAGE000166 • Hypothermia Protocol referred to at pages UHPORTAGE000253, 000386 • ABCDEF Protocol referred to at pages UHPORTAGE000314, 000399 • Hyperkalemia Protocol referred to at page UHPORTAGE000401 • Oxygen Weaning Protocol referred to at page UHPORTAGE000543 • “Goals of care” referred to at pages UHPORTAGE000118, 000412, 000413 • Terminal extubation referred to at pages UHPORTAGE000253, 000386 Additionally, this is to again request UH policies (Document Request No. 1(j-n)) regarding: • Richmond Agitation Scale (RASS) • Cardiac Arrest • Resuscitation • Fluid Resuscitation • Hypotension Kindly also respond to Document Request No. 2 (“Any index from any hospital unit or department containing or identifying the protocols, policies, guidelines or rules sought in the above Document Request No. 1.”) Defense counsel has not responded to Plaintiffs longstanding requests for written UH policies, many of which are specifically referenced in Mrs. Alexander’s medical records. In addition to the outstanding written UH policies, counsel for Plaintiff has repeatedly requested pursuant Civ.R. 30(B)(5), UH employee(s) with knowledge, custody and control of: • The UH Portage Health ICU monitoring machine in use on March 15 and March 16, 2023, and • Resulting and reporting of Mrs. Alexander’s blood pressures of 226/99, 81/62 and 40/27, and any other blood pressures resulted between 17:00 and 19:30 on March 15, 2022, and • Resulting and reporting of Mrs. Alexander’s mean arterial pressures of 131, 67 and 34, and any other mean arterial pressures resulted between 17:00 and 19:30 on March 15, 2022, and • and can also answer questions regarding: Electronically Filed 11/17/2023 16:33 / MOTION / CV 23 976435?/ Confirmation Nbr. 3021378 / CLDLJ 1. The make, model and name of the ICU monitoring machine attached to Mrs. Alexander when she was received as a patient of the UH Portage ICU that Nurse Amelia Oaks referred to at her deposition on October 25, 2023. 2. The manner in which ICU nurses could set time intervals for monitoring blood pressures and mean arterial pressures on the ICU monitoring machine as described in Nurse Oaks’s deposition. 3. The manner in which interval blood pressures and mean arterial pressures were displayed in real time. 4. The manner in which interval blood pressures and mean arterial pressures were documented in real time in Mrs. Alexander’s electronic medical record. 5. The manner in which interval blood pressures and mean arterial pressures were saved in the ICU monitoring machine. 6. How long the interval blood pressure data were preserved in the ICU monitoring machine. 7. The manner in which a nurse could retrieve blood pressure data in the hours or days after said data was obtained. 8. The procedure Nurse Oaks described as “authenticating” the blood pressure data, either in real time as the data is displayed on the ICU machine displayed, or when a nurse retrieves the data at a later date, as Nurse Oaks described doing after her shift ended on March 15, 2022. 9. Whether any UH employee accessed the ICU machine for Mrs. Alexander’s blood pressure data on March 15, 2022, March 16, 2022, or any time after her death, and the evidence documenting that access. 10. Whether any UH employee took any steps to preserve Mrs. Alexander’s blood pressure data any time after her death on March 16, 2022 to the present, and the evidence documenting that preservation. 11. Whether any UH employee took any steps to delete Mrs. Alexander’s blood pressure data any time after her death on March 16, 2022 to the present, and the evidence documenting that deletion. 12. The alarm system for abnormal vital signs for the ICU machine in use for Mrs. Alexander on March 15 and March 16, 2022. 13. Whether there is an audit trail connected to the ICU machine in use for Mrs. Alexander on March 15 and March 16, 2022, containing information Electronically Filed 11/17/2023 16:33 / MOTION / CV 23 97643$/ Confirmation Nbr. 3021378 / CLDLJ regarding UH employees setting timing parameters, changing timing parameters, authenticating data, downloading data from the ICU monitoring machine to the patient’s electronic medical record, initiating alarm settings, turning off alarms, or any other information provided by an audit trail. 14. UH written policies regarding ICU monitoring. 15. The manufacturer’s users manual for the ICU monitoring machine in use during Mrs. Alexander’s ICU admission on March 15 and March 16, 2022. • The UH Portage Health lab procedures in effect on March 15 and March 16, 2023, and can answer questions regarding: 1. UH Portage Health lab written policies. 2. Lab turn-around time for analyzing and resulting lab orders entered as stat, nonstat and routine. 3. Issues relating to Mrs. Alexander’s blood samples that the lab determined were unable to be analyzed, and/or were unreliable. 4. Issues relating to those lab orders the lab received and then reported as cancelled. 5. The delay in resulting the comprehensive metabolic panel that was amongst stat orders for blood studies entered at 17:42 on March 15, 2022, but not resulted until 19:27. 6. Documentation of lab samples arriving in the lab from the ICU as Nurse Oaks described in her deposition, including times received and times resulted. UH has not provided complete responses to long outstanding discovery - document responses and 30(B)(5) deponents -- nor has their counsel provided any reasonable time frame for completion of these obligations. In the meantime, Plaintiff is making every effort to meet this Court’s expert report deadline with incomplete evidence. Therefore, Plaintiff again respectfully requests the assistance of this Court in setting a deadline by which UH’s complete, formal discovery responses are to be produced. Plaintiff also respectfully requests this Court to Electronically Filed 11/17/2023 16:33 / MOTION / CV 23 976439/ Confirmation Nbr. 3021378 / CLDLJ set a telephone conference as soon as possible in order to resolve these long outstanding discovery issues. Respectfully submitted, /s/ Pamela Pantages_______ Pamela Pantages, Esq. (0046840) Nurenberg Paris Heller & McCarthy Co., LPA 600 Superior Avenue East, Suite 1200 Cleveland, Ohio 44114 (216)621-2300; (216)771-2242 fax ppantages@nphm.com One of Counsel for Plaintiff Electronically Filed 11/17/2023 16:33 / MOTION / CV 23 976439’/ Confirmation Nbr. 3021378 / CLDLJ Certificate of Service The foregoing was served via the Cuyahoga County Clerk of Court’s electronic filing system and by courtesy e-mail on this 17th day of November 2023 to: Jeanne M. Mullin, Esq. Counsel for Defendants Matthew J. Turkalj, Esq. University Hospitals Health System, Inc. and Perez & Morris, LLC University Hospitals Portage Medical Center 1300 East Ninth Street, Suite 1600 Cleveland, Ohio 44114 jmullin@perez-morris.com mturkalj@perez-morris.com Ryan K. Rubin, Esq. Counsel for Defendants Emily Davis, Esq. Safe Anesthesia Geneva, LLC; and Lewis Brisbois Bisgaard & Smith, LLP Todd Zets, CRNA 1375 East 9th Street, Suite 2250 Cleveland, Ohio 44114 ryan.rubin@lewisbrisbois.com emily.davis@lewisbrisbois.com /s/ Pamela Pantages Pamela Pantages, Esq. (0046840) Electronically Filed 11/17/2023 16:33 / MOTION / CV 23 976439/ Confirmation Nbr. 3021378 / CLDLJ