Canton woman’s lawsuit will test COVID immunity law for health care providers
Mission Hospital and HCA are accused of gross negligence and reckless misconduct.
Peter Lewis/Asheville Watchdog photo
A Canton woman has filed a lawsuit against the Hospital Corporation of America in which she claims “egregious acts of medical and corporate negligence” during the birth of her son led to his suffering a permanent hypoxic brain injury that will allegedly leave him to deal with cerebral palsy and “associated delays and disabilities” for the rest of his life.
The resolution of the suit could come down to how courts feel about the applicability of a COVID-era law that shields health care facilities and providers from civil liability over “harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services.”
The suit, filed in Buncombe County on Sept.23, alleges that Mission Hospital “knowingly and intentionally” placed “profits over patient safety by reducing the number of surgical teams working and available at the hospital or on call overnight.”
On March 19, 2020, Ashley Smathers was admitted to Mission Hospital’s labor and delivery unit in anticipation of the birth of her son, Stone.
Ashley, wife of Canton Mayor Zeb Smathers, was an otherwise healthy 32-year-old woman and had experienced a normal pregnancy but labored unsuccessfully for more than three hours, pushing for two.
According to the suit, during that process Stone’s fetal heart monitor began to show “increasingly concerning signs” of distress consistent with a lack of adequate oxygen supply.
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A c-section was ordered by Ashley’s attending physician, however, that didn’t happen for nearly five hours.
The suit goes on to allege that the accepted standards of care required Mission to “complete this c-section order as soon as possible and within 30 minutes,” and that Mission’s gross negligence and reckless disregard for patient safety caused permanent injuries.
Subsequently, a surgical team was “forced to perform an emergency hysterectomy to save her life,” a procedure that ensures she will never be able to bear another child again.
“She lost at least ten liters of blood on the operating table,” the suit reads, describing a litany of horrors the family endured during their son’s March 2020 birth.
For the rest of his life, Stone will live with “a diagnosis of cerebral palsy with associated delays and disabilities,” per the suit.
HCA has been the target of frequent lawsuits in recent months and has been the subject of especially intense scrutiny over its $1.5 billion deal to purchase Mission Hospital, along with five community hospitals. HCA has also faced criticism over the quality of patient care.
The suit calls for damages in excess of $25,000, which is the minimum amount needed to move the case to Superior Court, although it’s probable that the actual damages being sought will be much higher given the ongoing medical expenses the Smathers family will likely bear in connection with Stone’s ongoing care.
“I think the complaint speaks for itself,” said Robert Zaytoun, a Raleigh-based attorney whose firm filed the complaint. “It's specific. The Smathers are like anybody else. If they've been wronged by healthcare providers, they are entitled to rely on the civil justice system to compensate them and that's what they intend to bring about here.”
Deeper into the suit, the plaintiffs seem to anticipate what could be a controversial defense that would let Mission and HCA escape responsibility for any harm they may have caused to Stone.
On May 4, 2020, just as states were coming to grips with the reality of the emerging Coronavirus Pandemic, the North Carolina General Assembly passed a wide-ranging 70-page Senate bill that offered economic support, regulatory relief and educational modifications meant to guide and assist residents through what were then considered uncharted waters.
In that bill is an immunity clause for the health care industry that grants immunity from civil liability for acts or omissions that result in harm or damages.
“I think it was intended to genuinely protect hospitals that were in the throes of their health care providers dealing with a massive COVID crisis that we were in,” Zaytoun said. “Do I think anybody should ever have immunity? Personally no, but I can understand that extraordinary times call for extraordinary measures and there was a time when our hospitals were overwhelmed and our healthcare workers were just getting beaten to death — but that's not this case, in our view, based upon our factual investigation.”
Western North Carolina legislators that voted for the bill say it wasn’t supposed to be used this way.
“From what I understand from Mr. Smathers, his son’s injuries had nothing to do with COVID,” said Sen. Kevin Corbin (R-Franklin). “I don’t think COVID had anything to do with it. Of course, it’s up to the courts to decide, but I don’t think that was the intent of the bill. Those of us who voted for it, the purpose was to shield [medical providers] from liability due to COVID.”
Perhaps the harshest criticism came from Asheville Democratic Rep. Brian Turner, who told The Smoky Mountain News on Sept. 26, “I do not believe that was the intent of the legislation and I think if HCA tries to shield themselves behind that, it is unconscionable.”
Rep. Mike Clampitt (R-Swain) wasn’t in the General Assembly when the bill was passed, but echoed Corbin by saying that wasn’t the intent of the bill. Rep Mark Pless (R-Haywood) wasn’t in the General Assembly either, but agreed with Corbin, Turner and Clampitt.
“The intent, it had nothing to do with anything except COVID and obviously this wasn’t COVID,” said Pless. “They’re using this to cover up a lot of things but that was not the intent the legislature told me they had when this was put into place.”
Nancy Lindell, Public and Media Relations Manager for HCA’s North Carolina Division, did say that “Our hearts go out to the Smathers family. We also believe the care we provided was appropriate and we will defend ourselves through the legal process.”
What Lindell didn’t do was answer why the c-section allegedly took five hours from the time it was first ordered, and if HCA planned to use the COVID immunity law as a defense.
“As a trial lawyer, we hope for the best and plan for the worst,” Zaytoun said, “so I would assume that they will use it, and we'll deal with it.”
In the suit, plaintiffs put forth a number of reasons why the immunity provision should not apply to the Smathers suit.
First, Stone was born on March 21, 2020, but the bill was enacted on May 4 of that year and applies retroactively. Smathers alleges that the retroactive application removes a vested right and violates the due process and equal protection clauses of the U.S. and North Carolina constitutions.
Moreover, the suit claims that the care provided to Stone wasn’t impacted by COVID; that Mission Hospital was not treating a single COVID patient when Ashley was admitted; that Mission did not treat any COVID patients in the labor and delivery ward during Ashley’s delivery; that Mission never informed Smathers that the care they would provide had been impacted by COVID; that Mission did not experience staffing shortages due to COVID during Ashely’s delivery; and, that the actions of HCA constituted gross negligence and reckless misconduct.
A trial date has not yet been set.
News Editor Kyle Perrotti contributed to this report.
