Source: Children’s Health Defense

Witness testimony continued this week in the wrongful death trial of Grace Schara, a 19-year-old with Down syndrome who died in a Wisconsin hospital days after being admitted for a COVID-19 infection. Grace’s sister and expert witnesses testified that doctors violated the standard of care and principles of informed consent.

Grace’s family sued Ascension St. Elizabeth Hospital in April 2023 and filed an amended complaint in July 2023, alleging the hospital’s COVID-19 treatment protocols directly resulted in Grace’s death in October 2021, a week after admission.

The trial began last week at the State of Wisconsin Circuit Court for Outagamie County. The lawsuit names several defendants, including some Ascension doctors and nurses and the Wisconsin Injured Patients and Family Compensation Fund.

Grace’s older sister, Jessica Vander Heiden, testified Tuesday that she was unaware that the hospital had placed a “do not resuscitate” (DNR) order in Grace’s chart until shortly before her death and that, in Grace’s final moments, hospital staff refused to intervene and did not honor her family’s repeated requests to revoke the DNR.

Expert witnesses for the plaintiffs testified that there were multiple violations of the standard of care by Ascension doctors and nurses.

Dr. Gilbert Berdine, an associate professor of medicine at Texas Tech University Health Sciences Center, said that this was the first malpractice case where he testified as an expert witness for plaintiffs and explained why he chose to do so.

“The breaches of the standard of care were egregious, and I could not live with myself without answering the call to review and give advice on this case,” Berdine said.

Hospital staff ignored family’s ‘pleading, screaming, yelling’ 

During her testimony, Vander Heiden said that on Oct. 11, 12 and 13, 2021 — Grace’s final three days of life — she was present in Grace’s hospital room but was unaware of the DNR order that had been added to her sister’s chart.

Vander Heiden responded to testimony last week by defendant Hollee McInnis, an Ascension nurse who provided care for Grace, that patients with a DNR order are typically fitted with a purple wristband denoting their DNR status. McInnis testified that she did not recall whether Grace wore such a wristband. Vander Heiden said her sister was not wearing a purple wristband.

According to Vander Heiden, when she found out about the DNR order, hospital staff told her that “they could not do anything about it.”

“A nurse read off the computer screen that the doctor had labeled her ‘Do Not Resuscitate’ and they claimed they could not do anything about it,” Vander Heiden said.

As Grace’s condition declined shortly before her death, Vander Heiden said she and Grace’s parents, who were connected on FaceTime, “were pleading, screaming, yelling” for hospital staff to revoke the DNR.

“It actually went on for almost 10 full minutes, trying to get someone to help save her, and no one stepped in that room,” Vander Heiden testified. “They literally stood outside Grace’s room stationary. They would not move.”

This was despite the presence of “roughly 30-plus nurses” in the hallway outside Grace’s room, Vander Heiden said.

During this time, and up to Grace’s death, Vander Heiden said McInnis was nowhere to be found — nor was Dr. Gavin Shokar, a defendant who was the primary physician in charge of Grace’s care. Last week, McInnis testified that she was treating no other patients at the time.

During last week’s proceedings, Grace’s parents testified that they never agreed to a DNR, while witnesses for the hospital, including Shokar and McInnis, provided conflicting testimony on this point.

On Thursday, Dr. David Fisk, an infectious disease doctor and witness for the defense, acknowledged that DNRs are typically signed by the overseeing physician and co-signed by the patient or a representative. He said there are instances where two doctors can place a DNR order, “but that’s very unusual.”

‘The worst kind of breach of the standard of care’

Vander Heiden testified that during her stay with Grace at the hospital, she was not told about the benefits or risks of the medication being administered to her sister, and did not provide informed consent for the drugs, which included the sedatives Precedex, lorazepam and morphine.

“I wasn’t told about anything,” Vander Heiden testified, including alternative courses of treatment available to Grace.

Instead, Vander Heiden recalled that McInnis and another nurse, Samuel Haines, who also testified last week, repeatedly told her that Grace was about to die and that if she was placed on a ventilator, her chances of survival were 1%.

According to Vander Heiden, on Oct. 13, shortly before Grace’s death, the situation “didn’t seem like it was an emergency or urgent in any way,” and Shokar and McInnis did not indicate that Grace required emergency treatment. The previous evening, Grace’s oxygen levels were in “the high 90s” and Grace appeared to be in good spirits.

But on Oct. 13, doctors placed Grace on a feeding tube. Once the feeding tube was placed, Vander Heiden recalled that Grace appeared “very wiped out.” Later that day, Grace was given morphine, and according to Vander Heiden, she began showing signs of distress, including feeling cold to the touch.

“They were starting to drop,” Vander Heiden testified, referring to Grace’s oxygen levels. “This all happened after the morphine.” However, three oximeters in Grace’s room provided conflicting readings. According to Vander Heiden, McInnis did not intervene and suggested covering Grace with a blanket, which she did not provide.

According to Vander Heiden, Grace’s pulse was soon so low that a phlebotomist who came to draw blood was unsuccessful. “She had a hard time even finding a vein,” Vander Heiden testified.

Witnesses for the Schara family corroborated Vander Heiden’s testimony. Berdine testified on Friday that the breaches of the standard of care he identified when reviewing the case “are too numerous to count.”

Berdine said several of these breaches related to the lack of informed consent, including for the DNR order on Grace’s chart.

“Well, that’s the worst kind of breach of the standard of care because you’re supposed to be delivering medical care, and now, you’re entering an order to not deliver medical care,” Berdine said.

Berdine said that a DNR order can be revoked at any time by the patient, the patient’s family, or a power of attorney for the patient “as soon as it escapes the person’s mouth.” He said doctors and medical staff are obligated to “err on the side of saving the patient when there’s confusion.”

Registered nurse Susan Eichinger, another witness for the plaintiffs, agreed. She testified on Monday that the placement of a DNR without informed consent was “a principal breach” that indicated the lack of communication by the hospital with the Schara family.

“There’s nothing in the medical record that indicates these conversations took place. A care plan could have been created talking about end-of-life care. But the main thing is that there are no conversations documented,” Eichinger said.

‘The worst clinical decision I have ever witnessed’

Berdine also questioned the mixture of drugs administered to Grace.

“I find it indefensible that this patient was given medications, very dangerous medications, not theoretically dangerous medications, but medications proved by the medical record to be dangerous, to this patient without informed consent,” Berdine testified.

He said he hadn’t seen a similar case in his years of practice.

“The administration of morphine … to a patient who was unconscious, unresponsive, had lost her blood pressure, had no palpable pulse and whose respiratory pattern was screaming to anybody who would look … is or was the worst clinical decision I have ever witnessed in over 46 years of medical practice,” Berdine testified.

Berdine said that even after they gave Grace morphine, there were treatment options available that could have reversed her condition. For example, they could have given her Naloxone, a medication used to reverse the effects of opioids.

Witnesses for the defense testified that Grace was not oversedated to a life-threatening extent at any point during her stay.

But according to Berdine, Grace was oversedated three times during her hospital stay, and even though her first oversedation event involving Precedex was a “near-death experience,” Ascension doctors and nurses continued to administer the drug — and increased its dosage.

According to Berdine, the sedatives administered to Grace had a “synergistic effect,” where “the total effect is greater than the sum of the parts.” He said the repeated oversedation with these drugs led to metabolic acidosis — a potentially life-threatening condition where the blood is too acidic — and hypotension, or low blood pressure.

Berdine said the administration of lorazepam was wrong as it slowed her breathing at a time when “Grace needed all the ventilation she could muster,” as “it was the only thing keeping her alive.” He added that Grace’s rapid breathing rate was helping to keep her alive, but that the morphine further slowed her breathing.

“In the face of metabolic acidosis and somebody whose body is screaming at you that they’re desperately compensating for metabolic acidosis, the worst possible thing you could do would be to slow their rate of breathing,” Berdine said.

Grace’s oxygen levels declined faster after her father was ejected from her room

Emily Fisher, a registered nurse at Ascension, testified on Tuesday that the hospital was justified in evicting Grace’s father, Scott, from the hospital on Oct. 10, 2021, because he “refused attempts” by nurses “to provide education” and appeared “ill and fatigued” with a possible COVID-19 infection.

Berdine disagreed. He said Scott’s eviction was enforced with “no written notice,” and it denied Grace the opportunity to have an advocate by her bedside who could also provide comfort and assist with tasks such as adjusting her mask or feeding her.

“Particularly after the father, Scott, was evicted, [feeding] became impractical because there was nobody who had the time to do it,” Berdine testified.

According to Berdine, Scott’s eviction also had a tangible, negative impact on her health. “Statistically, Grace’s oxygen levels dropped three times as fast after he was evicted, than prior to his eviction,” Berdine testified.

For Eichinger, Scott’s eviction was one of several breaches indicative of a broader pattern of poor communication by Ascension.

“Based on the evaluation of the record and the depositions, and that this was a persistent attitude of dismissal, and he was marginalized as far as I can see because he wasn’t mentioned in any capacity as a helpful way,” Eichinger testified.

The trial is expected to conclude next week. CHD.TV is livestreaming the trial daily.

Related articles in The Defender

• Jury Hears Conflicting Testimony in Trial Alleging Hospital’s Actions — Not COVID — Caused Teen’s Death
• Trial Gets Underway in Death of Teen Whose Family Alleges Was Killed by Hospital COVID Protocols
• Lawsuit Alleging Hospital’s COVID Protocol Caused Death of 19-Year-Old to Move Forward After Judge Grants Partial Win in Gag Order Motion
• Landmark Lawsuit Alleging Medical Battery Killed 19-Year-Old With Down Syndrome Will Go to Trial

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