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Vearrier v. Karl

August 14, 2009


The opinion of the court was delivered by: Karen E. Schreier Chief Judge


Plaintiffs filed this action, alleging negligence in the medical treatment of their daughter, Paige Vearrier. Five of the six defendants move the court for summary judgment in their favor.


Following are the facts, viewed in the light most favorable to plaintiffs, the nonmoving parties:

On April 25, 2002, Paige Vearrier was born at Sioux Valley Hospital. Paige was born with gastroschisis, a condition where the intestines develop outside the abdomen on one side of the umbilical cord. She was immediately operated upon by defendant Dr. Stephen Karl, and she underwent a second surgery by Dr. Karl on July 19, 2002, to relieve persistent abdominal distention.

Dr. Karl saw Paige on December 4, 2002, regarding plans for a third surgery. Dr. Karl recommended postponing surgery for three months because Paige had recently suffered from pneumonia and because of her liver cirrhosis and jaundice which had resulted from Paige's intestinal problems. In preparation for surgery, labs were completed and the results were available on February 12, 2003. No further lab work was done prior to surgery. Dr. Karl met with Paige on February 24,2003, noting that her liver functions "have returned virtually to normal," that the jaundice had alleviated, and that Paige was "now ready for her surgery." Docket 110, page 3. On February 25, 2003, Paige underwent a third surgery with Dr. Karl to reconnect her intestines. Defendant Dr. Robert Lunn was the anesthesiologist. The surgery lasted from 10:05 a.m. to 12:45 p.m. At the start of the surgery, Paige's temperature was 38.6 degrees Celsius, and her maximum temperature during the surgery was 39.3 degrees Celsius.

Paige had been taken directly to the Pediatric Intensive Care Unit (PICU) after her two previous surgeries. After this surgery, however, Paige was taken to the Post Anesthesia Care Unit (PACU). Plaintiffs contend that both Dr. Karl and Dr. Lunn decided to move Paige to the PACU. Id. at 4. Registered Nurse Lisa Kunkle was responsible for Paige's care in the PACU. At 1:30 p.m., Kunkle documented that she notified Dr. Lunn that Paige had "cool feet and hands, bluish, increased heart rate." Id. at 5. Dr. Lunn claims that he came to the PACU to see Paige and concluded that while "her capillary refill and perfusion didn't look as good as I would have liked," this was not uncommon in the PACU. Id. At 1:35 p.m., Dr. Lunn ordered 50 cc of Albumin be given to Paige. Id. at 6. At 1:59 p.m., Kunkle took Paige's vital signs; she did not take vital signs again until 2:14 p.m. Id.

At 2:30, Kunkle documented that she paged Dr. Lunn to evaluate Paige. Dr. Lunn claims that he visited Paige to evaluate her for transfer to a hospital room, but a personal visit is not reflected in her medical documents. Id. Kunkle does not remember if Lunn evaluated Paige in person. Id. at 7. A discharge evaluation can be done over the phone. Id. The documentation reflects that Lunn approved Paige's transfer from the PACU to a hospital room. At 2:45 p.m., Paige was transferred to a hospital room, where Registered Nurse Nielsen, the pediatric floor nurse, documented that Paige was "listless and pale" and "[u]nresponsive," her hands and feet were cold, and she had decreased blood pressure. Id. Dr. Lunn was paged. At 2:47 p.m., Paige had a seizure, and Kunkle paged Dr. Lunn. Id. At 2:50 p.m., Nielsen documented Paige's seizure was continuing and that Dr. Lunn and Dr. Melanie Madsen were at her side. Nielsen administered several drugs at 2:50 p.m., 3:00 p.m., and 3:05 p.m. Id. at 8. Paige was admitted to the PICU at 3:10, where she had another brief seizure at 3:15 p.m. Id. at 9 Paige was put into a medically-induced coma and remained in a coma for ten days. From February 25, 2003, to March 25, 2003, Paige remained in Sioux Valley Hospital. Id. at 10.

On June 10, 2008, at defendants' request, Dr. Richard T. Katz evaluated Paige, concluding that she suffered from anoxic encephalopathy, profound mental retardation/developmental delay, profound cerebral palsy without achievement of any major motor milestones, gastroschisis and subsequent complications, asthma, intractable seizure disorder, cortical blindness, hearing loss, scoliosis, and bilateral hip subluxation. Dr. Katz estimated Paige's lifespan as 21 years.

Mary and Tracy Vearrier, Paige's parents, filed this lawsuit alleging that Karl and Lunn were negligent and that their medical care failed to meet the accepted standards of care, and that Pediatric Surgical Associates (PSA) and Anesthesia Physicians (AP) are vicariously liable for the negligence of their employees. Docket 1, ¶¶ 42-49. The complaint also alleges that defendant Sioux Valley Hospital and defendant Sioux Valley Hospitals and Health Systems (SVHHS) are vicariously liable for the negligence of their employees.

Id. ¶¶ 50, 51. All defendants move for summary judgment, except Sioux Valley Hospital.


Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Only disputes over facts that might affect the outcome of the case under the governing substantive law will properly preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986). Summary judgment is not appropriate if a dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.

The moving party bears the burden of bringing forward sufficient evidence to establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986). The nonmoving party is entitled to the benefit of all reasonable inferences to be drawn from the underlying facts in the record. Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980). The nonmoving party may not, however, merely rest upon allegations or denials in its pleadings, but must ...

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