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Pollan v. Wartak

Supreme Court of Mississippi, En Banc

December 7, 2017

CHRISTOPHER POLLAN
v.
ANDREW WARTAK, M.D., INDIVIDUALLY AND d/b/a INTERNAL MEDICAL ASSOCIATES; CLAY COUNTY MEDICAL CORPORATION d/b/a NORTH MISSISSIPPI MEDICAL CENTER-WEST POINT; ANGIE TURNAGE, C.L.P.N.; WILLIAM C. LARMOUR, R.N.; AND ASHLEY THOMAS DAVIS, R.N.

          DATE OF JUDGMENT: 11/03/2015

         CLAY COUNTY CIRCUIT COURT HON. JAMES T. KITCHENS, JR.

          TRIAL COURT ATTORNEYS: ALAN D. LANCASTER JOHN M. MONTGOMERY, DAVID UPCHURCH, JOHN WHEELER

         ATTORNEYS FOR APPELLANT: DOLTON W. McALPIN, ALAN D. LANCASTER, JOHN M. MONTGOMERY, JOHN STUART MOORE

          ATTORNEYS FOR APPELLEE: JOHN MARK McINTOSH, DAVID W. UPCHURCH, JOHN G. WHEELER

          WALLER, CHIEF JUSTICE.

         ¶1. Christopher Pollan filed a medical negligence action against Dr. Andrew Wartak, North Mississippi Medical Center-West Point; Angie Turnage, LPN; Chase Larmour, RN; and Ashley Thomas, LPN, claiming that the defendants' medical negligence caused the death of his mother, Shirley Pollan. The trial court granted partial summary judgment to the defendants, finding that Pollan's survival claims were barred by the statute of limitations. Finding no error, we affirm the trial court's judgment.

         FACTS

         ¶2. On October 8, 2008, fifty-five-year-old Shirley Pollan ("Shirley") was taken to the emergency department at North Mississippi Medical Center-West Point ("NMMC-West Point") with complaints of dizziness, vomiting, and an inability to stand. Blood tests revealed that her blood sodium level was a critically low 97 mEq/L.[1] Intravenous fluids were administered to correct her sodium levels, and she was admitted to the intensive care unit to the service of Dr. Andrew Wartak. During her time in intensive care, Shirley continued to receive IV fluids to normalize her blood sodium levels. According to the existing guidelines at the time, blood sodium levels should not be increased by more than ten to twelve points in the first twenty-four hours and eighteen points in the first forty-eight hours. Shirley's medical records show that her sodium levels were increased by nineteen points in the first fifteen hours and twenty-one points in approximately thirty-one hours.

         ¶3. On October 11, 2008, at Pollan's request, Shirley was transferred to NMMC-Tupelo, where she remained until October 14, 2008. Her diagnosis upon discharge was "severe hyponatremia secondary to syndrome of inappropriate antidiuretic hormone with mental status changes."[2] It was noted in her discharge record that "she might be suffering from central pontine myelinolysis, " or CPM, a brain cell dysfunction caused by the destruction of the myelin sheath covering the nerve cells in the pons, in the middle of the brain. CPM can be caused by a rapid rise in the body's sodium levels.

         ¶4. Shirley was incapable of returning to work after her discharge from NMMC-Tupelo, and over the next two years she was treated for numerous behavioral and neurological issues. On August 9, 2010, Shirley visited her primary care physician, Dr. Clifton Story, at the Longest Student Healthcare Center in Starkville. Dr. Story's record of this visit provides, in pertinent part:

To summarize, she had been well prior to October 2008, working as a teller at the bank where she worked many years. She had gotten acutely ill, went to the ER and was found to be hyponatremic. During the hospitalization her sodium was corrected quickly. She deteriorated in the hospital, apparently becoming nearly comatose and was transferred to Tupelo at the insistence of her son.
She did improve subsequently but has never returned to her normal state of being and is now disabled due to the mental deficits and inability to perform the task required of her to work at the bank. Her only medical diagnosis really has been SIADH and polydipsia and some psychosis initially following the hospitalization. I think it is reasonable to get a second opinion as to SIADH may have been the initial cause of the hyponatremia. However, I think the sodium was corrected quickly and she may have developed [CPM] which may have led to her chronic disability that she is now managing.

         Dr. Story's records also indicate that Shirley was "able to articulate well with normal/speech language" during the visit and "[had] appropriate memory for current and past events." Dr. Story referred Shirley to Feiyu Chen, M.D., a neurologist at the Semmes Murphey Clinic in Memphis.

         ¶5. On August 24, 2010, prior to Shirley's visit at the Semmes Murphey Clinic, a patient profile was filled out either by Shirley or someone on her behalf. The patient profile describes Shirley's "chief complaint" as follows:

Fatigue and delirium initially 10/08/08 and discovered had suffered from a critical sodium and potassium drop that led to a coma at the North MS Health (Clay County Medical Center), West Point, MS 10/08/08. Transferred to critical care unit North MS Health Tupelo, MS. Family told best case scenario she was not expected to leave the hospital because of in such severe condition upon arrival from the West Point hospital and that the best case scenario would probably be a vegetative state the rest of her life if she were to be able to leave the hospital. Indicated that they appeared misdiagnosed, brain flooded with IV (liquids) too quickly and then removed too quickly based on the safe levels, it was too rapid of administration trying to increase the levels. Behavioral issues resulted and she was nowhere close to performing a normal life compared to time prior to this disabling condition.

         Shirley was seen by Dr. Chen on the following day. Dr. Chen's report from this visit indicates that he initially was suspicious of CPM, but Shirley was "doing fine right now from a neurological standpoint." Dr. Chen ultimately did not think that Shirley had CPM.

         ¶6. Shirley's health continued to decline until she ultimately passed away on January 18, 2011. An autopsy was performed on January 24, 2011, but the autopsy report was not issued until July 11, 2011. The report lists Shirley"s cause of death as "[CPM] following rapid sodium correction."

         ¶7. Pollan filed a wrongful death suit against the defendants on January 10, 2013, in the Clay County Circuit Court. The complaint alleged that the defendants negligently failed to render proper medical treatment to Shirley specifically concerning her blood sodium levels, which caused her to develop CPM. Pollan's claims for damages were separated into wrongful death claims, survival claims, and estate claims. Each of the defendants filed an answer to the complaint in March 2013, and each defendant raised the statute of limitations as a defense.

         ¶8. On March 6, 2015, after discovery had concluded, Dr. Wartak filed a Motion for Partial Summary Judgment, which the other defendants joined. The defendants argued that the statute of limitations for Pollan's survival claims began to run, at the earliest on October 14, 2008, when Shirley was discharged from NMM-Tupelo. Alternatively, the defendants alleged that, at the latest, the statute of limitations began to run on November 17, 2008, when Shirley visited her primary physician and attributed her neurological problems to her admission to NMMC-West Point. Because Pollan's complaint was filed more than two years after either of those dates, the defendants claimed that Pollan's survival claims were time-barred. In response, Pollan asserted that the statute of limitations began to run no earlier than July 11, 2011, when Shirley's autopsy report confirmed that her cause of death was CPM.

         ¶9. On November 3, 2015, the trial court issued an order granting the defendants' motion for partial summary judgment. The trial court determined that the statute of limitations for Pollan's survival claims had begun to run on August 24, 2010, when Shirley's patient profile at the Semmes Murphey ...


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