In a groundbreaking case, a Wisconsin jury is set to decide the fate of a lawsuit accusing Ascension St. Elizabeth Hospital and medical providers of medical malpractice and battery, leading to the death of 19-year-old Grace Schara, who had Down syndrome.
The lawsuit, filed in Outagamie County Circuit Court, is being brought by Scott Schara, Grace's father and administrator of her estate, against Madison, Wis.-based Ascension Health and medical providers working for the hospital.
The defendants are accused of a series of alleged violations, including the administration of a lethal drug cocktail—Precedex, Ativan and morphine—and the imposition of a "Do Not Resuscitate" (DNR) order without the family's consent.
Grace's ordeal began on Oct. 1, 2021, when she tested positive for COVID-19.
The lawsuit alleges urgent care and hospital staff allegedly neglected Grace’s unique needs due to Down syndrome, opting for inappropriate treatments, including the unauthorized use of sedatives.
The lawsuit contends that Grace's agitation resulted from the healthcare professionals' failure to consider her disability, which led to the administration of unnecessary drugs.
The legal action further asserts that hospital staff denied family access and advocacy, violating patient visitation agreements.
Grace's father was allegedly forcibly removed from the hospital, leaving Grace without family support for extended periods. The lawsuit claims the hospital violated its own policies and procedures.
According to court documents, one of the pivotal moments occurred on Oct. 13, 2021, when, during a phone call with Grace's parents, Dr. Gavin Shokar, the lead individual defendant, unilaterally entered a DNR order on Grace's chart. Subsequently, medical staff refused resuscitation efforts, leading to Grace's death at 19:27, the Scharas claim. The family, unaware of the DNR order, pleaded for intervention during a FaceTime call.
The lawsuit, which includes claims of negligent infliction of emotional distress, seeks to establish precedent in cases where patients' right to informed consent is denied, resulting in injury or death. Schara, emphasizes the broader implications of the case, aiming to challenge legislative immunity protecting the medical profession.
The trial is scheduled to begin on Nov. 4, 2024.
According to the legal filing, Dr. Gilbert Berdine, an independent evaluator, concluded that the defendants violated the standard of care in multiple ways, including removing family and advocacy access, issuing a DNR order without proper consent, failing to recognize oversedation and neglecting to resuscitate after revocation of the DNR order.
The defendants are accused of wrongful death, medical negligence, medical battery and negligent infliction of emotional distress.
The Schara estate is being represented by Cedarburg-based attorney Joseph W. Voiland and Michael E. Edminister of Akron, Ohio.
The lawsuit has the potential to prompt significant reforms in the legal exposure of doctors for patient deaths, challenging existing norms surrounding informed consent and patient rights.
“This bellwether case is about something much bigger than mere malpractice, and its impact will reverberate nationally,” Schara told Children’s Health Defense.
“Our goal is simple: Save lives. That’s why this case is first about the lack of informed consent — a battery — leading to negligence and malpractice, which then resulted in wrongful death.”
A Wisconsin jury will determine whether Grace was a victim of battery following a judge's decision to allow a trial against Ascension St. Elizabeth Hospital and its providers.
The court's ruling has the potential of setting a landmark precedent for physician battery cases.
“Grace’s death is one of many,” Schara said.
Following Grace’s death, Schara created a documentary titled "Breaking the Oath: Unauthorized," which documents the stories of Grace and others.
He also launched a podcast titled “Deprogramming with Grace’s Dad.”
“The path after Grace’s death has ultimately led Scott to discovering he has been programmed to believe things that are not true – lots of things. Scott would like this podcast series to open eyes and hearts to start the process of deprogramming yourself,” the podcast’s website reads.