Candler resident's lawsuit against Mission Hospital to continue after her death

ASHEVILLE - Donna Smith spent the last year of her life battling two giants: her long list of illnesses and Mission Hospital’s lawyers. Despite dying July 6 at age 62, ending her struggles with health, her lawsuit will continue against Mission.

On June 22, 2022, Smith, a Candler resident, was headed home from her doctor appointment at Mission Hospital. She used a power wheelchair to get around, so driving was not an option for her. She relied on a transportation service provided by the hospital to take her to and from her appointments.

Her trip home from the hospital turned when the bus driver, Suzanne Lowery, refused to secure Smith, according to the complaint. Based on the same filing, during the ride, Lowery allegedly stopped short, throwing Smith violently forward, causing her to sustain multiple fractures. According to her medical chart cited in in a later legal filing, doctors deemed her too sick for an operation.

She lived with the fractures for the rest of her life.

Smith Complaint by Mitchell Black on Scribd

Even before her lawyer, Walt Wood, filed the lawsuit, he was concerned about preserving Smith’s testimony, given her medical condition, according to a June 7 court filing. Among Smith’s illnesses were COPD, liver disease and type II diabetes. Wood was not sure Smith would survive the year. According to the legal filing, Wood spoke Feb. 17 to Mission Director of Risk Management Chris Shelton. During this conversation, Wood shared his worry that Smith “may not make it until the end of the year and (he) did not want to take the chance of not preserving (Smith’s) testimony.”

Less than a month later, Smith’s health was “declining rapidly.” According to court documents, Wood moved forward with filing the lawsuit so he could preserve Smith’s testimony. He filed the suit March 29 in Buncombe County Superior Court to Judge Jacqueline Grant. The suit accuses Lowery of negligence and implicates HCA and Mission by association because they were doing business as the transportation service CarePartners PACE. HCA acquired Mission in 2019.

“This was a vulnerable adult who was not mobile and was confined to a wheelchair,” Wood said to the Citizen Times July 12. “In the course of transporting her, the driver did not provide and apply the proper restraints for the power wheelchair and the passenger. (The driver) drove off and engaged in a hard stop, and Ms. Smith was thrown to the front of the vehicle and sustained grievous injuries that, given her condition prior to that, made her life worse.”

He continued, saying the accident “made the end of her life more painful.”

Lowery, HCA and Mission are represented by Asheville-based attorneys Phillip Jackson and David Hawisher. The defense attorneys responded to the complaint Smith filed two months later, arguing that by naming “HCA Healthcare, Inc.” in his complaint, Wood did not name the correct legal HCA affiliate. A whistleblower lawsuit unsealed earlier this year brought by two Mission Hospital emergency room doctors accusing Mission and HCA of violating the False Claims Act also named “HCA Management Services, LP,” and “HCA, Inc.”

HCA Response to Smith by Mitchell Black on Scribd

Mission Hospital spokesperson Nancy Lindell said in a July 13 statement to the Citizen Times, "We do not comment on ongoing litigation and will defend ourselves through the legal process." Lowery declined to comment.

In their responses to the complaint, the defense lawyers also argued that their clients complied with the standard of care. They asserted that their clients' actions did not lead to Smith’s injuries and raised the possibility her injuries were caused by others, including Smith herself.

Wood broached scheduling a deposition for Smith with Jackson in an April 17 phone call, according to a legal filing. Wood wanted to put Smith through only one deposition because her medical condition deteriorated, and he did not want to put Smith “through that under her dire circumstances.” He wanted to move expeditiously.

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The defense attorneys wanted to take two depositions of Smith: a fact-finding deposition that is not admissible at trial known as a “discovery deposition” and a deposition that can be used during trial known as a “trial deposition.” In a motion, the defense attorneys objected to taking a single deposition because doing so would “prevent defendants from adequately preparing for Ms. Smith’s cross-examination.”

Hawisher emailed Wood May 31, writing that if Smith died between depositions, they could use her discovery deposition at trial, and that they would be comfortable with videotaping the first deposition under that agreement.

In a June 1 motion, the defense asked the court to enforce that the first deposition they took of Smith would not be admissible for trial. In the same motion they also asked the court if they could give a non-videotaped discovery deposition prior to the trial deposition. They did not include Hawisher’s position in this legal filing.

Plaintiff Response to Protective Order by Mitchell Black on Scribd

Grant ultimately ordered June 8 that both depositions be videotaped and that if Smith died or became incapacitated between depositions, they could use the first one they taped. Depositions were scheduled for June 9 and 15.

According to Wood, Smith was unable to complete the June 9 deposition. She died about a month later. Whether what Smith was able to convey in her deposition will be admissible at trial remains to be seen.

Order by Mitchell Black on Scribd

“We want to make sure that there is justice for what she went through unnecessarily,” Wood said. “We are undeterred.”

Mitchell Black covers Buncombe County and health care for the Citizen Times. Email him at mblack@citizentimes.com or follow him on Twitter @MitchABlack. Please help support local journalism with a subscription to the Citizen Times.

This article originally appeared on Asheville Citizen Times: Lawsuit against Mission Hospital to continue after patient's death