Shaw v. Osborne (In re Osborne)

In re: Debra Ann Osborne Debtor.

Khalliah Monique Shaw, Plaintiff, v. Debra Ann Osborne, Defendant/Debtor.

Case No. 17-51682-AEC

Adv. Proc. No. 17-05057

UNITED STATES BANKRUPTCY COURT MIDDLE DISTRICT OF GEORGIA MACON DIVISION

Entered: October 1, 2020

September 30, 2020

Chapter 7

MEMORANDUM OPINION

Plaintiff Khalliah Monique Shaw ("Plaintiff" or "Ms. Shaw") commenced this adversary proceeding for a determination that an unliquidated debt arising from a medical malpractice claim owed by the Defendant and Debtor Debra Ann Osborne (the "Debtor" or "Dr. Osborne") is not dischargeable under 11 U.S.C. § 523(a)(2)(A).¹ The Court conducted a trial, heard the testimony of several witnesses, and received exhibits into evidence. After trial, each party submitted proposed findings of factand conclusions of law. After due consideration of the foregoing, the Court concludes, for the reasons that follow, that the debt is not excepted from discharge under 11 U.S.C. § 523(a)(2)(A).

The Court has jurisdiction over this matter under 28 U.S.C. §§ 157 and 1334(b). This is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (I). Venue is proper under 28 U.S.C. § 1409.

I. Findings of Fact.²

1. During all times relevant to this adversary proceeding, River Edge Behavioral Health Center ("River Edge") was a medical treatment facility with locations in Milledgeville, Georgia and Macon, Georgia.

2. Plaintiff received treatment at River Edge's Milledgeville location, beginning on December 19, 2013 and lasting into January 2014.

3. At that time, the Debtor, a psychiatrist, was Medical Director of River Edge, and worked primarily at River Edge's facility in Macon.

4. The Debtor held no ownership interest in River Edge and collected a fixed salary in exchange for her work as a physician and as Medical Director, with no incentives or bonuses related to volume of patient care.

5. As a Medical Director, the Debtor held a number of responsibilities (Plaintiff's Ex. 6), including to:

a. provide clinical supervision and leadership in the clinical treatment team process;

b. comply with and revise medication management protocols;

c. provide pharmacologic services to clients in accord with accepted standards of care; andd. provide supervision of Advanced Practice Registered Nurses and/or Physician Assistants.

6. One Advanced Practice Registered Nurse was Julie Sanders ("Sanders"), who worked primarily in River Edge's Milledgeville location.

7. Sanders held no ownership interest in River Edge and collected an hourly salary, with no incentives or bonuses related to performance.

8. As an Advanced Practice Registered Nurse, Sanders holds a doctoral degree in the field of nursing.

9. The Debtor served as the delegating physician for Sanders under the River Edge Nurse Protocol Agreement (the "Protocol Agreement"), which among other things authorized Sanders to prescribe medication, including lamotrigine(Plaintiff's Ex. 3A).

10.The Debtor considered the Protocol Agreement a "supervisory agreement."

11.The Debtor was aware that Sanders could not write prescriptions were it not for the Protocol Agreement.

12.The Protocol Agreement required the Debtor to, among other things:

a. ensure that Sanders received appropriate pharmacology training at least annually (Plaintiff's Ex. 3A, p. 5³, ¶ 14);

b. periodically review patient records of treatment by Sanders, including an annual review of 10% of all such patient records (Id., p.5, ¶ 12);

c. be available for consult with Sanders (Id., p.3, ¶ 2); and

d. evaluate and follow-up with patients treated by Sanders "on a time interval determined by [the Debtor] in accordance with theparameters of the acts delegated to [Sanders] and pursuant to such standards as may be from time to time determined by the Composite State Board of Medical Examiners." (Id., p.4, ¶ 3).

13.The Protocol Agreement provided that the Debtor's practice address was River Edge's Macon facility (Id., p.1).

14.The Protocol Agreement provided that Dr. Brin Foster was the "Other Designated Physician." Dr. Foster practiced primarily at the River Edge Milledgeville location (Id., Form A).

15.Applicable regulations required the Debtor "to make certain that the medical acts provided by [Sanders] under the Protocol Agreement [were] commensurate with Sanders' education, training, experience and competence of [Sanders]." Ga. Comp. R. & Regs. 360-32-.05(3)(a)(1).

16.Applicable regulations provided that "as the delegating physician, [the Debtor] is responsible for all the medical acts performed by [Sanders]." Ga. Comp. R. & Regs. 360-32-.05(4).

17.In the Protocol Agreement, Sanders represents that she is a "registered professional nurse licensed by the Georgia Board of Nursing and recognized by said Board as a nurse practitioner." (Plaintiff's Ex. 3A, p.2).

18.The Protocol Agreement required Sanders to "exercise the requisite standard of care, defined as the exercise of at least that degree of skill, care and diligence as would ordinarily be rendered by advanced practice registered nurses generally under like and similar circumstances." (Id., p. 3, ¶ 3).

19.Under the Protocol Agreement, Sanders was to use prescription forms that contain the name, address, and telephone number of the Debtor (Id., p. 5, ¶ 10).

20.Sanders has sometimes introduced herself to patients as "Dr. Sanders," on account of doctorate of nursing degree.

21.When introducing herself to a patient as "doctor," Sanders generally would explain that her reference to "doctor" is due to her doctorate of nursing degree, and that she is not a medical doctor.

22.Staff at River Edge usually called Sanders by her first name, but sometimes referred to her as "doctor."

23.Plaintiff heard staff refer to Sanders as "Dr. Sanders." Plaintiff was told that she would see "the doctor" on a certain morning, and on that morning she was visited by Sanders.

24.Several diplomas and certificates on display in Sanders' office indicated she was a nurse.

25.Sanders introduced herself to Plaintiff as "doctor."

26.Sanders failed to qualify this representation or explain to Plaintiff that she was not a medical doctor.⁴

27.Sanders testified that she never intended to mislead anyone into thinking that she was a medical doctor.

28.During Plaintiff's treatment at River Edge, she visited Sanders' office, but Plaintiff did not notice the diplomas and certificates.

29.Sanders wore nothing that indicated she was a medical doctor, including a white coat or stethoscope.

30.Plaintiff believed that Sanders was a medical doctor and, as a result, did not ask to see a medical doctor at River Edge.

31.As part of her treatment of Plaintiff, Sanders prescribed lamotrigine.

32.Lamotrigine carries a 'black box' warning, the most serious warning required by the U.S. Food and Drug Administration. The warning indicates that an adverse reaction to lamotrigine may lead to death or serious injury (Plaintiff's Ex. 10, 11).

33.The labels on the prescription bottles for the lamotrigine indicated "Dr. Julie Sanders" and "Dr. Julie Use Osborne Sanders" as the prescriber (Plaintiff's Ex. 15).

34.Sanders prescribed lamotrigine to Plaintiff in phases of escalating dosage over the course of several weeks.

35.The increasing dosage of lamotrigine exceeded the manufacturer's limitations and was not appropriate for Plaintiff's condition; such use and dosage of the medicine was not within the standard of care.

36.After several weeks of taking the lamotrigine as prescribed by Sanders, Plaintiff developed severe complications and was subsequently hospitalized and diagnosed with Stevens-Johnson Syndrome and toxic epidermal necrolysis.

37.Plaintiff paid $12.75 to River Edge for the lamotrigine prescriptions and provided insurance information to River Edge for her treatment.

38.At some point after the conclusion of Plaintiff's treatment by Sanders, the Debtor sought to relinquish her duties as Medical Director and delegating physician to nurse practitioners.

39.River Edge denied the request and, as a result, the Debtor left River Edge in April 2014.

40.In June 2017, Plaintiff initiated litigation against the Debtor, Sanders, River Edge, and other parties in state court.

41.The Debtor was unaware of Sanders' treatment of Plaintiff until she was served with the summons and complaint in the state court action.

42.The Debtor never spoke to or treated Plaintiff during the time she received services at River Edge.

43.Before learning of Sanders' treatment of Plaintiff, the Debtor had received no indication of deficient performance by Sanders, including writing inappropriate prescriptions, and was unaware that Sanders had ever represented herself to Plaintiff as a "doctor."

44.The Debtor did not establish a formal system for review of patient records treatment by Sanders or any other nurse practitioner at River Edge.

45.Generally, the Debtor reviewed records of patients treated by nurse practitioners to assess the adequacy of care given, only when a nurse practitioner asked a question or a requested a consult.

46.The Debtor did not give any training to Sanders (or anyone else) as to use of lamotrigine, and was not aware whether Sanders had experience or training for the prescribing of lamotrigine.

47.Initially, the Debtor did not have an opinion as to the quality of Sanders' medical treatment abilities. Later, through review of medical records and communications with Sanders, the Debtor came to respect Sanders' work.

48.The Debtor was not aware of any specific training Sanders may have received; instead, the Debtor relied generally on Sanders' having appropriate licensure qualifications.

49.The Debtor considered herself available for consult with Sanders when Sanders needed it.

50.The Debtor also believed that Dr. Foster would generally be easily accessible to Sanders for a consult, because both of them practiced in the Milledgeville location of River Edge.51.The Debtor believes that River Edge pressured her and other professionals to see more patients in less time, and that River Edge's operation was focused on profit maximization.

52.The

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