Jury awards $3.5M over death of discharged patient

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The family of a man who drowned after walking into the ocean during a hurricane shortly after he was discharged from Grand Strand Regional Medical Center has won a $3.5 million medical malpractice verdict against the employer of the physicians who discharged him from the hospital.

Brink Hinson of Finkel Law Firm in Columbia, who represented the family, said that the medical staff who treated Matthew Scheer failed to contact his father, as they should have done when Scheer was discharged, because they didn’t properly understand the rules imposed by the Health Insurance Portability and Accountability Act, which regulates the safeguarding of private medical information.

Hinson said that David Scheer took his son to GSMC in October 2015 because his son was suffering from an acute psychotic episode. The attending physician ordered a psychiatric consultation, but none was ever performed.

A few hours later, David left the hospital temporarily, after informing hospital staff that he was his son’s emergency contact. While he was gone, Matthew had an outburst in which he yelled at and acted aggressively toward the hospital’s staff. A physician discharged Matthew a few minutes later, but never informed his father. The doctor later testified that she believed HIPAA privacy regulations didn’t allow her to do so.

About 30 minutes later Matthew drowned himself in the Atlantic Ocean, in the early morning hours during a heavy storm caused by Hurricane Joaquin. The family brought survival and wrongful death actions against GSMC, the two attending physicians, and their practice group, Southern Myrtle Inpatient Services. The family alleged that SMIS had failed to adequately train its employees about what information could or could not be disclosed under HIPAA.

“This case was about a doctor not being trained that she had the ability, and the obligation to pick up the phone and speak to a close family member who was in a position to lessen Matthew’s danger to himself and others,” Hinson said.

The family reached a $600,000 settlement with GSMC in August 2018, while SMIS rejected a $1 million offer of judgment. After a five-day trial and nearly nine hours of deliberation, the jury returned its verdict against SMIS on May 24. The jury found that SMIS had acted negligently, and that its negligence had proximately caused Scheer’s death, but it did not hold either of the physicians legally responsible.

The jury awarded $3.5 million in actual damages and $250 in punitive damages.

Hinson said after the decision he spoke to a few members of the jury, who told him their concern was the doctors were not properly trained about what they can and cannot disclose under HIPAA.

“You can’t scare a physician into thinking that there are never times when you can and should divulge patient information for the safety of the patient or public safety,” Hinson said. “And that, essentially, was the crux of the case. You have to understand that while privacy and patient health care information, generally speaking, needs to be kept confidential, there are absolutely exceptions within the law for common sense and for patient safety. HIPAA shouldn’t be a barrier to patient safety.

“You can’t leave out the crucial part about permissible disclosures. You can’t only talk about the don’t without talking about the do’s. I think HIPAA has been misconstrued into this thing that is all about privacy and that’s not what it is. It’s actually about the portability of healthcare information.”

William Padget, also of Finkel Law Firm, also represented the Scheer family.

Jack Gresh and Lauren Spears of Hall Booth Smith in Charleston represented SMIS. Gresh declined comment, saying that post-trial motions have not been decided.

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VERDICT REPORT — MEDICAL MALPRACTICE

Amount: $3,500,250

Injuries alleged: Death

Case name: David L. Scheer, et. al. v. Southern Myrtle Inpatient Services LLC, et. al.

Court: Horry County Circuit Court

Case No.: 2017-CP-26-01571

Judge: John C. Hayes III

Date of verdict: May 24

Demand: $1 million offer of judgment

Special damages: $3.5 million in actual damages, $250 in punitive damages

Attorneys for plaintiff: Brink Hinson and William Padget of Finkel Law Firm in Columbia

Attorneys for defendant: Jack Gresh and Lauren Spears of Hall Booth Smith in Charleston