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Bentley v. Highlands Hospital Corp.

United States District Court, E.D. Kentucky, Southern Division

December 13, 2016



          Amul R. Thapar, United States District Judge

         In baseball, ties go to the runner. In summary judgment, ties go to the plaintiff. Why? Because civil litigants have a right to a jury trial. See U.S. Const. amend. VII. And when a case comes down to a close call, the jury must be the one to make it. See Kennedy v. Silas Mason Co., 334 U.S. 249, 256 (1948) (“While we might be able, on the present record, to reach a conclusion that would decide the case, it might well be found later to be lacking in the thoroughness that should precede judgment of this importance and which it is the purpose of the judicial process to provide.”); Coburn v. Rockwell Automation, Inc., 238 F. App'x 112, 127 (6th Cir. 2007) (noting that close calls should be submitted to the jury); see also Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 255 (1986) (noting that courts must act with caution before granting summary judgment). Whether Robyn Bentley filed her suit in a timely fashion is one of those close calls. As such, a jury must decide it.


         For Robyn Bentley, it started with a sore throat. Not feeling well, Bentley went to an after-hours clinic run by Highlands Regional Medical Center (“Highlands”). There, a nurse practitioner took a look, found redness and swelling, and sent Bentley home with a diagnosis of pharyngitis and a prescription antibiotic. R. 110 at 5-6.

         Eight days later, Bentley returned to Highlands. This time, though, her symptoms were more diverse and alarming. The sore throat was gone. But when Bentley arrived mid-morning, she was already nauseated, suffering from abdominal and back pain, and having difficulty urinating. Concerned, the clinic sent Bentley to Highlands's emergency room for a CT scan. That scan revealed calcified deposits in Bentley's kidneys. The doctors diagnosed her with kidney stones, prescribed a muscle relaxant and pain medication, and sent her on her way. That was 2:00 p.m. on Sunday, July 28. Id. at 6; R. 352-2; R. 356-2 at 2-6 (Bentley Depo. I at 85-102).

         By 1:00 a.m. the next morning, Bentley's condition had worsened. She awoke with severe pain stretching into her legs. And new to Bentley was a sensation that her legs were tingling and weakening. R. 356-2 at 7 (Bentley Depo. I at 106). An hour later, she checked into the emergency room of another hospital-Paul B. Hall Regional Medical Center (“PBH”). To PBH staff she reported two nights of back pain, difficulty walking, numbness and tingling in her legs, and difficulty urinating. R. 110 at 6; R. 352-4; R. 356-2 at 8 (Bentley Depo. I at 111-12). Bentley then met with Dr. Thomas Styer, an emergency physician working the overnight. Dr. Styer suspected that something might be amiss with Bentley's spine, so he ordered a CT scan. Because the scan came up negative for any emergent findings in Bentley's lower back, Dr. Styer determined that he could not admit Bentley for observation. He diagnosed her with acute back pain and sent her on her way- again-this time with instructions to follow up with her family doctor. That was 5:00 a.m. on Monday, July 29. R. 356-2 at 11-15 (Bentley Depo. I at 122-33, 145).

         Bentley went home and tried to sleep. But rest eluded her, and by 9:30 a.m. she was in front of Dr. Blake Burchett, her family physician. By now, Bentley had begun to lose control of her left foot. Dr. Burchett examined Bentley, found her reflexes were diminished, and decided to send her to Central Baptist Hospital in Lexington, Kentucky. But before that, Dr. Burchett sent Bentley back for an MRI at the place where her ordeal had begun nine days before-Highlands. See R. 352-5; R. 356-2. at 15-17 (Bentley Depo. I at 147-54).

         The MRI did not happen right away. For a few hours, Bentley and her parents waited at the hospital, without answers, worrying that things were getting worse. In the early afternoon, Dr. Burchett showed up for results, only to learn that the “stat” scan he had ordered still had not been done. Only after Dr. Burchett raised a bit of a fuss did Highlands staff take Bentley for her MRI. See R. 356-3 at 2 (Bentley Depo. II at 15); R. 356-4 at 2 (R. Adams Depo. at 54).

         When the MRI was finally done, however, it had no final answers. Not because there was nothing to see; as Bentley would learn much later, there was something lurking-a worrisome shadow. Highlands's radiologist, Dr. Terry Hall, just missed it. R. 110 at 8; R. 356-2 at 21 (Bentley Depo. I at 179-80). And so, still untreated, the numbness and loss of motor control continued moving up Bentley's legs toward her abdomen. Concerned, Dr. Burchett decided that it was time for Bentley to go to Central Baptist. A few hours later, Bentley at last was on her way. R. 352-3 (Bentley Depo. II at 9-10); R. 356-3 at 6 (Bentley Depo. II at 29-30).

         Bentley continued to lose control of her legs over the two hours it took her ambulance to reach Lexington. And now a new symptom appeared. Bentley began experiencing shortness of breath and a sensation that her symptoms were moving up toward her diaphragm. See Id. at 7-8 (Bentley Depo. II at 35-38).

         At Central Baptist, doctors ran another MRI. This time, they found a culprit near where PBH's Dr. Styer had thought they might: While Bentley's spinal column might not have been compressed, there was significant swelling in her spinal cord. With inflammation now their target, doctors hatched a plan. In the early-morning hours of July 30, they started Bentley on intravenous steroids. See Id. at 9-11 (Bentley Depo. II at 42-49).

         By morning, Bentley's ease of breath had returned and her symptoms had stabilized. A neurologist informed her that her bout of strep throat might have triggered a flare-up of Devic's disease, a previously latent autoimmune disorder. So he ordered various tests and several days of steroids, followed by plasmapheresis. But Bentley never regained the motor control she lost before Central Baptist. She remained paralyzed from the chest down. See Id. at 11-12 (Bentley Depo. II at 50-53); R. 356-6 at 2-3 (C. Adams Depo., 3/17/2016, at 53- 56); R. 356-2 at 22 (Bentley Depo. I at 183-84); R. 356-7 (Facebook Post of Aug. 2, 2013).

         Bentley left Central Baptist on August 9, 2013. Her treatment did not end there. She spent the next month in physical and occupational therapy at Cardinal Hill Rehabilitation. After that, she switched to outpatient sessions. Meanwhile, Bentley continued a Rituxan regimen under the watchful eye of a neurologist who hoped that the immunosuppressant would prevent any recurrences of spinal inflammation. R. 356-3 at 14 (Bentley Depo. II at 101-02). Still hopeful her condition might improve, Bentley even considered a trip to China for an experimental treatment. But her neurologist suggested instead a visit to Johns Hopkins Medical Center, which housed a research center dedicated to inflammatory conditions of the spinal cord. See R. 356-2 at 18 (Bentley Depo. I at 167-68); R. 351-8 (Facebook Post).

         On September 3, 2014, Bentley met with Dr. Carlos Pardo-Villamizar, the director of the Transverse Myelitis Center. On a positive note, Dr. Pardo gave Bentley the diagnosis she had been missing. Her condition was not Devic's disease, but acute inflammation brought on by the infection that had caused her sore throat a week before. That meant no more worries about recurrences and no more Rituxan. But with this good news came some bad. According to Bentley, Dr. Pardo became the first person to tell her that PBH and Highlands could have minimized-or reversed-her paralysis if only they had treated her with IV steroids earlier on July 29, 2013. R. 351-4 at 2 (Bentley Depo. I at 21-23); R. 356-2 at 19 (Bentley Depo. I at 169-70).


         Bentley went to court nearly one year later, on September 1, 2015. R. 1-2. She sued PBH, Dr. Styer, and Whitaker National Corporation, the company who hired Dr. Styer out to PBH. Id. She sued Highlands and Dr. Hall, too. Id. Bentley pled claims as diverse as medical negligence and violations of the Kentucky Consumer Protection Act. See Id. at 7- 21; R. 110 (first amended complaint). But all of those claims rested on a single theory: If Dr. Styer had examined her properly-and ordered an MRI or a neurological consult-while she was at PBH, or if Dr. Hall had read her MRI correctly ...

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