(This story was updated to add new information.)
After deliberating for about two hours, a jury in Outagamie County Circuit Court in Appleton on June 19 decided in favor of Ascension in the high-profile wrongful death case involving the 2021 death of a 19-year-old patient at an Ascension hospital in Appleton.
Grace Schara, 19, died Oct. 13, 2021, seven days after she was admitted to Ascension NE Wisconsin-St. Elizabeth Hospital for symptoms of COVID-19. Scott Schara, her father, sued the hospital a year and a half later in a wrongful death case that includes claims of medical negligence, violation of informed consent and, initially, battery.
The family argued that Grace died from a drug overdose from precedex, lorazepam, morphine as a result of an illegal do not resuscitate order.
The jury disagreed.
Of the 13 claims answered by the jury in the verdict, only two of them had a dissenter — and there was only one dissenter for each of the two claims. A civil case, unlike a criminal case, doesn’t require an unanimous verdict based on proof beyond a reasonable doubt. Instead, 10 of 12 jurors needed to agree on each claim based on the preponderance of evidence.
“Personally, of course, I’m disappointed,” Scott Schara, Grace’s father, said after the verdict. “But God knew this was going to … he knew the verdict before we ever stepped one foot in this court, so we know God’s will was done, even though we’re personally disappointed.”
The Schara family said it will hold a press conference at 9 a.m. June 20 in Appleton to discuss the verdict.
An Ascension Wisconsin spokesperson released this statement:
“The loss of a child is heartbreaking and we extend our deepest sympathies to the family. Throughout this process, we have remained confident in the care provided by our team and in the values that guide our work each day. The health, safety and well-being of our patients, associates and community members is our top priority, and we are committed to honoring human dignity and acting with integrity and compassion for all persons.”
Jurors weighed the evidence presented during the 13-day trial to determine if the actions of the hospital, Dr. Gavin Shokar and registered nurse Hollee McInnis, both whom cared for Grace Schara the final two days of her life, constituted a wrongful death, medical negligence and a violation of informed consent.
The suit also sought a declaratory judgment from Judge Mark McGinnis, stating the “do not resuscitate order in question and non-consensual injection of certain drugs” into Grace’s body were in violation of the hospital’s policies and procedures.
It also sought to change the cause of death on Grace’s death certificate from “acute respiratory failure with hypoxia as a result of COVID-19 pneumonia” to “drug overdose from precedex, lorazepam, morphine as a result of an illegal do not resuscitate order.”
Before the start of closing arguments on June 19, McGinnis read the 18-page verdict form to jurors — but it didn’t include the battery charge.
To prove battery means proving intent and involves physical contact between an individual — in this case, Grace Schara and the defendants.
Plaintiffs argued the administration of intravenous drugs by hospital staff without the consent of Grace’s parents constituted battery. Failure of the battery claim to be included on the verdict form indicates attorneys for the plaintiffs didn’t sufficiently argue that point, allowing the judge to dismiss the claim before the start of jury deliberations.
Successfully arguing the civil battery claim attached to a wrongful death case would have allowed jurors to award damages unrestricted by the financial cap that applies to medical malpractice cases in Wisconsin.
After closing arguments ended, jurors began deliberations mid-afternoon June 19, capping off extensive medical testimony from more than 20 witnesses. Closing arguments echoed opening statements, occasionally peppered with video replays of witness testimony for emphasis, in a trial that got national attention and dabbled in conspiracy theories related to COVID-19.
The family’s closing arguments
Michael E. Edminister, an attorney for the Schara family, reiterated during closing arguments that protocols associated with the medical profession’s standards of care had been breached more than a dozen times during Grace’s seven-day stay at St. Elizabeth.
Edminister said it included the failure of staff to inform Grace’s parents, her powers of attorney, that she was receiving drugs, specifically precedex, morphine and lorazepam; asking Scott Schara to leave Grace’s room, which left her without an advocate; and placing an illegal do-not-resuscitate order on Grace’s chart.
Grace, who had Down syndrome, had never been left alone before her hospital stay, Edminister reminded the jurors. Grace’s sister was able to take her father’s place at Grace’s bedside, but only after the family hired an attorney to argue its case to the hospital, he said.
Edminister reminded jurors that nurse McInnis testified she couldn’t remember if Grace was wearing the purple, do-not-resuscitate bracelet put on DNR patients. He also questioned how the family was unaware their daughter had been labeled a DNR patient, meaning lifesaving measures would not be taken to save her life.
“There should never be confusion over whether a 19-year-old girl is a DNR or not,” Edminister told the jurors during closing arguments.
He highlighted testimony from Dr. Gilbert Berdine, an associate professor of internal medicine and medical education at the Texas Tech University Health Sciences Center, who testified on behalf of the Schara family.
Berdine testified it was his belief that Grace died when she failed to be diagnosed and then be treated for metabolic acidosis, a condition that occurs when too much lactic acid builds up in the body. Lactic acid is produced by muscle and red blood cells when a body is low on oxygen, and consequently low on energy.
Berdine said even if Grace’s parents declined to grant permission for her to be placed on a ventilator, she could have been given reversal drugs, such as narcan, when her heart stopped beating Oct. 13.
“Whether or not the defendants have to own their mistakes is now up to you,” Edminister told the jurors.
Closing arguments for the defense
Two attorneys from the Waukesha-based Otjen Law Firm delivered closing arguments for the defense: Jason Franckowiak, who represented defendants Ascension Health and McInnis; and Randall Guse, who represented Ascension Medical Group – Fox Valley Wisconsin, Inc. and Shokar.
Franckowiak cast doubt on Berdine’s testimony, stressing Berdine admitted he had never worked in an intensive care unit administering drugs to patients or titrating drugs based on a patient’s changing vital signs, like oxygen levels or heart rate.
He also stressed how several medical professionals testified it is standard practice to administer precedex, lorazepam and morphine simultaneously in an intensive care setting.
“Giving these drugs would not have tripped any red flags,” Franckowiak told jurors.
Shokar testified on several occasions before closing arguments that he had two in-depth conversations with Scott Schara before changing Grace’s code status to do not resuscitate. He said the conversations occurred Oct. 12 and Oct. 13, the day Grace died.
Shokar said he told Scott Schara that administering CPR “is not a guarantee” to saving someone’s life and that only 23% of patients get resuscitated, “and that’s if you have everything going for you.”
Shokar said patients like Grace, who have an irreversible conditions such as lung damage who are not being treated for that damage, can end up in a vicious cycle. Shokar was seeking pre-authorization to place Grace on a ventilator to assist her breathing due to the lung damage.
“Even if you somehow get the heart to restart, it will stop again,” Shokar said. “And you end up in this vicious cycle where you are just jamming on someone’s chest, breaking their ribs, causing trauma, until they die. I 100% believe it was consented to, given how extensive the conversations and the detail that went into those conversations.”
Jessica Van Egeren is a health care reporter and assistant breaking news editor with the Milwaukee Journal Sentinel. She can be reached at jvanegeren@gannett.com. Kelli Arseneau contributed to this report.
This article originally appeared on Milwaukee Journal Sentinel: Jury rules in favor of Ascension in wrongful death trial in Appleton
Reporting by Jessica Van Egeren, Milwaukee Journal Sentinel / Milwaukee Journal Sentinel
USA TODAY Network via Reuters Connect
