A recent motion in a lawsuit filed by the widow of former educator John G. Hinson, who died while hospitalized in 2007, claims Memorial Hospital withheld documents pertaining to dosages of the painkiller he was given while there.

On Nov. 13, a motion to strike was filed through the Decatur County Clerk of Court’s office by the plaintiff in the case of Michelle W. Hinson v. Hospital Authority of the City of Bainbridge and Decatur County.

A motion to strike is to request a judge’s order to remove, eliminate or make immaterial certain or entire portions of the opponents’ legal complaint or replies in the trials. Once the motion is accepted, the jury has to ignore or not consider those stricken parts of trials.

Michelle Hinson, the plaintiff, is the surviving spouse of John G. Hinson, former principal of Bainbridge High Westside-Performance Learning Center. John Hinson went to Memorial Hospital and Manor in Bainbridge with kidney stones on June 11, 2007, and died approximately 14 hours later on June 12, 2007.

The Superior Court lawsuit, filed on Dec. 14, 2007, alleges that Hinson died as a result of an overdose of Dilaudid. Dilaudid, also known by the generic name hydromorphone hydrochloride, is a narcotic pain reliever, or opioid, that is similar to morphine, according to Abbott Laboratories of Chicago, Ill., which markets the drug.

The argument for the motion to strike claims that Memorial Hospital deliberately withheld information that was requested in the discovery process—a pre-trial effort by attorneys to obtain information, where neither party should be able to hide information.

According to the filing, the motion “arises from Defendant’s willful, blatant, inexcusable failure to follow the discovery rules. As a result of Defendant’s actions, Plaintiff has been denied multiple opportunities to discover information.” It contends that the Memorial Hospital’s answer to the original lawsuit failed to provide two documents pivotal to the plaintiff’s complaint that Hinson died as a result of an overdose of the narcotic Dilaudid.

The first document the motion refers to is a memorandum from the chairman of Memorial Hospital and Manor Pharmacy and Therapeutics Committee to the members of the medical staff regarding Dilaudid—specifically dosing guidelines. The motion states the document was distributed on June 5—six days prior to Hinson’s admittance—and contends that due to the denial of access to the document, they were unable to question 18 witnesses, physicians, nurses, pharmacists and others about the Dilaudid memo.

The importance of the document was referenced by pointing out several depositions (testimony under oath). Referring to a deposition taken from Paul J. Bennett, M.D., who prescribed Dilaudid to Hinson, the motion notes a discrepancy between the doctor’s specific knowledge of the potency of the drug, when compared with morphine, and the information provided in the memo. The motion states that, “In the June 5, 2007, Dilaudid Memo, the routine dosing guidelines call for Dilaudid .5 to 1 milligram IV every three hour PRN (when necessary) pain. Prior to John’s death, Bennett issued an order that called for John to receive Dilaudid 3 milligrams IV every hour PRN pain.”

In several depositions with members of the Memorial Hospital Pharmacy and Pharmacy and Therapeutics Committee, questions were asked relating to equianalgesic information (equivalency charts comparing drugs). The motion contends the plaintiff was unable to ask specific questions pertaining to equianalgesic information and dosing guidelines provided in the memo specifically in relation to the amount of Dilaudid given to Hinson.

“Unfortunately, Plaintiff was precluded from asking these questions during her deposition because her employer deliberately failed to disclose the document as required by law,” the motion states.

The second document the motion says Memorial Hospital failed to provide is Hinson’s complete medical chart. It points to a discrepancy between testimony given regarding a specific dose of Dilaudid given to Hinson and what was shown in Hinson’s medical records as originally provided to the plaintiff on Feb. 1, 2008.

The motion reads, “On Aug. 5, 2008, Defendant Memorial Hospital disclosed, for the first time, a different version of John G. Hinson’s medical record… (further noting) The hospital states, by and through its attorney, on June 11, 2008, that it has answered ‘every piece of discovery.’”

The discrepancy refers to a specific dosage of Dilaudid given to John Hinson at 1:30 a.m. that did not appear in the original medical administration record. In the deposition with the nurse, she stated the next time she worked she received a note pointing out where she had failed to document the 1:30 a.m. dosage of Dilaudid given to Hinson. She stated she went back and entered the information.

Hospital responses to motion to strike

On Jan. 9, Memorial Hospital and Manor’s legal council in the Hinson vs. Hospital Authority of the City on Bainbridge and Decatur County filed a response to the motion to strike set forth by the plaintiff.

The response first notes that during the discovery process, Memorial Hospital has been served with three sets of interrogatories, nine sets of requests for production, six sets of requests for admissions and approximately 30 deposition have been taken—alluding to the “overwhelming amount of discovery that has been conducted.” It also notes that the court has not once had to step in a discovery dispute.

Addressing the charge in the motion stating they “willfully and inexcusably” failed to provide with rules of discovery, it notes that the plaintiff never filed a motion to compel—asking the court to order the party not complying to produce information requested. It points out that the plaintiff did not dispute responses from the hospital, stating that dosing information, opioid potency and opioid equianalgesic dosing information exceeds the scope of discovery allowed by Official Code of Georgia Annotated.

“Interestingly, Plaintiff’s counsel never followed up on these, or, for that matter, any of Memorial’s responses. Plaintiff never filed a motion to compel,” the response reads.

It contends that the motion to strike, “intends to mislead the court into thinking that Memorial and its counsel knew of the existence of this document [Dilaudid memo] and intentionally and willfully withheld production of the same.” It argues that when the existence of the document was discovered through testimony provided in a deposition by a member of the hospital’s Pharmacy and Therapeutics Committee it was provided to the plaintiff.

“At no time, has Memorial intentionally withheld the production of any non-privileged document. Thus we have a document with refers to Dilaudid which Memorial learned about during a physicians deposition, which was then provided to Plaintiff, nothing more and nothing less,” the response states. Responding to the accusation that plaintiff was unable to thoroughly question key witnesses regarding the Dilaudid memo, it is noted that since the document was produced they have not asked to redo the depositions for any witnesses.

Addressing the statement that the hospital failed to provide the complete medical history of John Hinson’s complete medical record, the response states that the original record given is the official, certified medical record. The document explains that a risk management investigation took place after Hinson’s death locking the medical record—where no additional charting or editing could be done. During that time, as was discovered during a deposition, it appears Hinson’s nurse, “went into the computer and made additional entries to the medical record.”

The response contends that once the discrepancy was discovered, the hospital provided a complete copy of all the documents which dealt with Hinson’s medical records were given to the plaintiff.

In requesting that the court deny the plaintiff’s motion to strike, the response cited a number of previous court decisions that support the use of a motion in only the most flagrant cases, “where the failure is willful, in bad faith, or in conscious disregard of an order.”

The document disputes the plaintiff’s contention that the Dilaudid memo was a policy at the hospital and states that the memo was, “nothing more than a guideline which was shared with staff physicians to consider as they deemed appropriate.” It states that a patient in Memorial Manor had an, “unfortunate response to Dilaudid” and the information was provided to the Pharmacy and Therapeutics Committee by a doctor not employed by the hospital. The memo was then distributed to member of the hospital’s medical staff to be considered as they saw fit.

What’s next

The case is still in the pre-trial discovery phase, which was recently extended until April 1 by now-retired Judge J. Richard Porter III. Now that the hospital has filed a response, the new judge in the case, Judge J. Kevin Chason, will have the decision whether to accept or deny the motion.

If Judge Chason rules in favor of the motion, there is no set action to be taken. The ruling could vary from a simple verbal reprimand to requiring the hospital to finance new depositions or the extreme act of striking the defensive pleadings.