THOMAS A. BENDER, M.D. ORTHOPAEDIC SURGEON

3345 WHITFIELD AVENUE CINCINNATI. OHIO 45220 TELEPHONE 513-221-3232

FAX 513-961-3708

Robert J . Ewbank, Esq. Ewbank & Kramer 114 W . High Street Lawrenceburg, IN 47025

Dear Mr. Ewbank:

October 24.2014

Re: State of Indiana v Kathy Hess CMLS14-070

I have reviewed the medical documentation that pertains to the death of Dionne J . Scalf.

This individual expired on 12/20/13 at 13:33.

I have reviewed the documentation that you have provided including the following:

1. Probable Cause Affidavit 2. Supplementary Report of Death by Officer 8eetz. 3. Autopsy Report 14 - A000001 4. Certificate of Death 5. AIT Lab Report 6. Report of Dr. Hawley - Pathologist 7. Autopsy Photographs B. Medical Records:

a. Dearborn County Hospital b. Woodland Hills Nursing Home c. Partner's In Health

9. Defendant's Interrogatories to Plaintiffs Expert

You have asked my opinions concern ing the etiology of the eighth thoracic vertebral fracture. You have asked me to provide information of the acute versus chronic nature of the fracture . You have asked me to provide opinions as to the ergonomics or pathophysiology on a biomechanical basis for this fracture to have occurred. You have asked me to provide an opinion as to whether the fractured TB vertebral body could have resulted in the resident's death .

Dr. Hawley has reported the description of a displaced fracture of the TB vertebral body. There was a tear of the anterior longitudinal ligament. The posterior longitudinal ligament was not obviously described as torn, or at least did not allow access to the epidural space and spinal cord for comment about the middle and posterior columns of the spine. There was recent hemorrhage adjacent to the fracture but no evidence of subacute bleeding. There appeared to be no description of compression of the TB vertebral body, but a horizontal fracture cleavage through the vertebral body associated with the anterior longitud inal ligament tear was described . It is not evident that an additional dissection was made or analysis of the spinal cord or the posterior supporting structures of the middle and posterior columns of the thoracic spine centered on TB. Other than the anterior position of the fracture with 1-2 mm of displacement, there was no description of the integrity, or lack thereof, posterior elements.

In terms of the medical documentation and information that has been provided concerning the habits and nature of Ms. Scalfs lifestyle, coupled with her pre-morbid conditions including a large thoracic kyphosis and osteopenia clinically evident prior to her demise, it is my opinion that the

Ms. Scalf sustained an acute fracture of the T8 vertebral body within less than 10-15 minutes before her total cardiac collapse leading to death. Based upon what is described as escorting the resident to the restroom and placing her on the commode, I am unable to identify a biomechanical pattern for this fracture to have occurred while the resident was under the direct supervision of Kathy Hess. Even as the resident handled the walker with both upper extremities and was stabil ized from behind with axillary support provided by Kathy Hess; I cannot conceptualize how the flexion/extension axis in the thoracic spine, centered at least 2 or likely 4-5 centimeters in front of the T8, would have converted to an axis behind the pedicles into the facets of the mid-to-Iower throracic spine centered at T8 in the described process of assisted-ambulation from the resident room to the adjacent restroom. Based upon what I can conceptualize considering the time frame of circumstances prior to Ms. Scalf's cardiac episode, escorting a nursing home resident to the restroom as the resident ambulated with a walker, as reported, wou ld not have caused the T8 spinal fracture to occur. Even supporting the resident under her axilla either posteriorly from behind to safely guide her gait or even assisting her onto the commode from the front tethering her arms would not have resu lted in this T8 spinal fracture. I am aware of the fact that the resident did have a cardiac event while seated on the commode after she produced a small amount of bowel movement. The cardiac event then occurred. The resident was emergently placed on a rollator and brought back to her bedside by Kathy Hess. CPR was initiated on the bed at first with a short backboard. When the life squad arrived the resident was placed on a long backboard and transported to Dearborn County Hospital.

In terms of the type of spinal fracture described by Dr. Hawley and visualized in the photographs, the resident had an "extension-type" spinal fracture. There needed to have occurred a translation of the resident's flexion/extension axis from approximately 2-5 cm in front of the T8 vertebral body to an area at least through the middle column and posterior column of the T8 vertebral spine. The biomechanical pattern for this spinal extension fracture to occur would necessitate that the center of rotation biomechanically moved behind the ped icles into the facet joints or possibly behind the posterior spinous process of T8. With the recognition of the rib fractures coupled with the extension spinal fracture, it is my opinion that the resident sustained the extension fracture of the T8 vertebral body during CPR. This fracture occurrence was due to the resident's underlying osteopenic bone, her large thoracic kyphosis, the use of a short backboard during CPR, and the extension of her upper torso to provide temporary mechanical ventilation through a patent airway. Whether it was the actual chest compression on the short backboard traumatically reversing Ms. Scalf's chronic kyphotic spinal deformity against the edge of the backboard or the spinal extension/positioning of the kyphotic spine to provide ventilation assistance cannot be completely differentiated.

It is my opinion that the T8 spinal fracture did not result in hemorrhage and exsanguinations leading to cardiac volume loss and death. It is my opinion that the T8 spinal fracture did not cause respiratory arrest. It is my opinion that a spinal cord injury as a result of the T8 spinal fracture has never been objectively verified.

The opinion that the T8 spinal fracture li kely occurred during Ms. Scalf's CPR is supported by the contemporary medical literature.

In summary, the resident sustained a T8 spinal fracture on or about the time of her resuscitation for the cardiac event that occurred on 12/20/13. I am at a loss to identify any other biomechanical malposition of the flexion/extension axis of Dionne Scalfs thoracic spine to have occurred other than during CPR. The two most likely pathological positions during CPR wou ld have been the short backboard causing a stress-riser and/or the extension of the neck and upper torso to provide ventilation. Therefore, I am unable to corroborate Dr. Hawley's opinion that the death of Dionne J . Scalf was due to blunt injury to the chest (thoracic spine).

Th is narrative is an opinion based upon review of the medical documentation, current medical literature, and formulating a visual reali ty of what circumstances occurred on 12/20/13. The above analysis is based upon the available medical documentation furnished at this time. This process

is dependent upon the catalogue of medical records. It is assumed that the information provided to this examiner is correct. If more information or medical documentation becomes available at a later date, I reserve the right to refine my opinions based upon that additional documentation. Such information mayor may not change the opinions rendered in this narrative.

The opinions that I have expressed in this narrative are based upon reasonable medical probability and certainty, and are focused on the issues requested .

I declare that the information contained within this document was prepared and is the work product of the undersigned; and is true to the best of my knowledge.

Thomas .A •. Bender, M.D.

TAB: ram

GEORGE R. NI CHO LS. II. ~ 1.D . PRESIDENT

FEI.I.O\,\1 CA P. AAI'S. ASC I' DJI'LO;YI ATE AMEIUCAN I~OA IU) OF I'ArI-iOLOGY (AI'. CP. Fl' )

COMMONWEALTH MEDICAL LEGAL SERVICES . INC.

October 20, 2014

Robert J. Ewbank Ewbank & Kramer 114 W. High Street Lawrenceburg, IN 47025

RE : State of IN v Kathy Hess CMLS14-070

Dear Mr. Ewbank:

You have asked me to perform an independent cause of death determination in this case.

At your request I have reviewed the followin g materials concerning the above captioned

decedent:

1. Probable Cause Affidavit 2. Supplemental Report of Death by Officer Beetz 3. Autopsy Report 14:AOOOOOl 4. Certificate of Death 5. AIT Lab Report 6. Report of Dr. Hawley - Pathologist 7. Autopsy Photographs 8. Medical Records:

a. Dearborn County Hospital b. Woodland Hills Nursing Home (Incident Report) c. Partner's In Health

9. Defendant's Interrogatories to Plaintiff's Expert 10.10/01/2014 Slide examin ation

I, George R. Nichols, 11, M.D., am a licen sed phys icia n certified in anatomic pathology, clinical

pathology and forensic pathology.

The contents of thi s report are based upon extensive training and experience in clinical and

forensic pathology. The opinions are expressed with reasonable medical and/or scientific

certainty or probability.

BRQWNsnQRO OFFICE PARK ' 6013 BlwwNsnORO PARK BLVD. SU ITE D ' I.OUISV I LLE. KY 4020 7 I'I'IONE: (50 2) 899-9837 ' Tnll Free ! -877 -333-2614 • FAX, ('.i 02) H99·n40

EM f\ll.: RFAPERGRN @AOL.CO M WEBSITE : WWWFRONTPAGEACCESS COMICOMMONWEAITH _MEPlCAI

October 20, 2014 Robert J. Ewbank Page 2

As you know Dionne J. Scalf collapsed at a nursing facility where resuscitation, including chest compression CPR, was administered. She died at 13:33 on Dec. 20, 2013. The initial death certificate signed by Daniel J. Barkdoll determined the death as hypertensive/atherosclerotic heart disease and sudden death by natural means.

An autopsy was performed at the request of the Dearborn County Coroner by Dr. Steve Ellison on Jan, 2, 2014. Autopsy report 14:A000001 describes the physical condition of Dionne J. Scalf. Externally kyphosis is present which is characterized as "back deformities and has a hunched appearance" due to osteoporosis. Internally, a fracture of the 8th thoracic vertebra is identified with palpable "hinge type motion". "Fresh hemorrhage" is also described as being pressure "around the fracture, dissecting under the thoracic pleura". The thoracic vertebral column was removed and retained for consultation.

Gross organ examination determined no natural cause of death.

Microscopic tissue examination determined no natural cause of death.

The vertebral bone showed "hemorrhage at the fracture site".

Toxicology testing of "autopsy blood" was performed by AIT Laboratories. It reported hydrocodone and hydromorphone to be present at supra-therapeutic and therapeutic levels respectfully.

The vertebral tissue materials were transported to Indianapolis for examination by Dr. Dean Hawley. There a wedge of 2 vertebral bodies was removed for further study and prior to that the specimen was manipulated to confirm abnormal mobility at the fracture site.

Dr. Hawley described displaceable fracture with tears of anterior ligament (longitudinal spinous) and hemorrhage along the periosteum and pleura. The displacement is 1- 2 mm with a described but not measured displacement of the vertebral body into the spinal canal. There is no description of bleeding within the spinal canal and no description of the enclosed spinal cord. Consultation report C14-1001 makes no assessment of traumatic disorder within the spinal canal. Rather it describes a boney vertebral fracture, with 1-2 mm displacement, and surrounding soft tissue bleeding. Injury to thoracic spinal cord and its covering membranes is not addressed. And remember the fracture is at the level of T 8.

Despite the above findings, in the consultation report Dr. Hawley concluded that this fracture (T 8) "produced significant respiratory distress" and it "may well have produced contusion or damage to the spinal cord".

October 20, 2014 Robert J. Ewbank Page 3

I will discuss each conclusion:

1. Respiratory arrest due to Ts fracture: The muscles of respiration are controlled by nerves which exit the cervical spine, not the thoracic spine. If the injury described by Dr. Hawley were to possibly cause any physiologic disturbance it would have occurred at a spinal level far removed (approximately 12 inches). Spinal injury requiring ventilatory support occurs in the neck not in the mid-back.

2. Did a spinal cord injury occur? Dr. Hawley had the opportunity to actually examine the spinal cord, arachnoid, dura and spinal nerve roots. This examination was not performed despite the presence of these tissues in front of Dr. Hawley. Rather than dissect and examine to determine the actual condition, Dr. Hawley chose to not provide adequate consultation and to report "possible contusion or damage to the spinal cord". Dr. Hawley was compelled to fully examine the tissue specimen. Was the spinal cord actually injured? Was a spinal cord subdural hematoma present? The issue of neurologic abnormality was literally in his hands which he fumbled.

Dr. Hawley further makes statements of mechanism of injury which are at variance with published literature which I have attached. Perhaps Dr. Hawley, like I, will defer to the discussion of the mechanism of this injury to an orthopedic surgeon who treats living people who sustain this same injury.

Last, I have no explanation for Dr. Hawley's opinion that the death of Dionne J. Scalf was due to blunt force injury to the chest (thoracic spine). Does he propose internal blood loss of sufficient amount as to produce hypovolemic shock and death? I have seen no quantification or even estimation of blood loss. Clearly, from a physiologic stand-point that would be the only possible acute cause of death related to this injury. Even if the spinal cord were severed at T s there would be paraplegia, loss of bladder and bowel control and then later (hours) possible development of neurologic shock.

I have studied the microscopic tissue slides which show osteoporosis (thinned bone) with fracture and hemorrhage, atrophy and glioSiS of the brain (aging changes), renal arterial­arteriosclerosis (hypertensive kidney disease), resuscitative changes within the lungs (acute hemorrhage and fat emboli) and chronic not acute heart abnormalities. The heart shows evidence of hypertension producing variable size of myocytes and scar formation (myofibroSiS).

The investigative records here show a sudden event either following or immediately preceding collapse of Dionne J. Scalf; with unconsciousness and unresponsiveness until death. There was

,...... no interval of injury with a delayed collapse and death.

October 20, 2014 Robert J. Ewbank Page 4

Please refer to my letter to you of April 29, 2014 and attachments to further explain the injury and its potential effects (enclosed).

From all that I have reviewed I conclude the following in the death of Dionne J. Scalf:

• cause of death is cardiac rhythm disturbance • due to hypertensive and ischemic heart disease, producing

• resuscitation with chest compressions • resulting in rib and thoracic vertebral fracture • causing minor blood loss and no identified spinal cord injury • anatomic site of vertebral fracture approximately 12 inches or 11 vertebral bodies from

area of cervical spinal cord which will produce respiratory failure

• manner of death is natural, clearly not homicide

• erroneous conclusions by forensic pathology consultant

Sincerely,

George R. Nichols, II, M.D.