Family of Butler woman awarded nearly $18M in wrongful death case

Published 3:06 pm Friday, September 15, 2023

By Justin Story, Bowling Green Daily News

Ashley Nicole Phelps left behind a husband and three daughters when she died in 2018 at age 30 after contracting pneumonia in the wake of a stem cell transplant following a battle with cancer.

Attorneys representing the estate of the Butler County woman in a lawsuit against her health care providers argued that her pneumonia and the complications that developed from it would not have happened if her doctor who performed the transplant had simply prescribed an antibiotic to treat the illness right afterward, and a jury agreed, resulting last week in the awarding of nearly $18 million to her surviving family.

Following a seven-day trial in Jefferson Circuit Court, a jury found Dr. Robert Emmons of University of Louisville Medical Center and Dr. Vidya Seshadri of Graves Gilbert Clinic at fault for Phelps’ death, and the judge who presided over the case awarded her estate $17,796,138.30.

Phelps’ husband, Ben Phelps, the administrator of her estate, will recover the money from Emmons, an oncologist with James Graham Brown Cancer Center in Louisville, and University of Louisville Physicians Inc.

“Ben’s biggest thing is the doctors taking responsibility because (Ashley Phelps) was a successful surviving cancer patient who died of pneumonia that was not supposed to happen,” said attorney Mark Alcott, who represented the estate. “When a jury vindicated his wife, he just put his head in his hands and he sobbed. He felt like the world finally understands what he’s gone through.”

Court records indicate that Phelps’ post-transplant care regimen did not include a prescription for Bactrim, an antibiotic that can treat the pneumocystic pneumonia that Phelps contracted.

Attorneys for Phelps’ estate argued that other doctors who specialized in cancer treatment at the hospital in Louisville included Bactrim in their patients’ post-treatment plans, and that Emmons failed to meet the standard of care for Phelps by not following suit.

Ashley Phelps had been diagnosed in 2014 with Hodgkin’s lymphoma, but her cancer went into remission following a cycle of chemotherapy and she later gave birth to her third child.

The cancer returned in 2017, resulting in more chemotherapy treatments and prompting a stem cell transplant, which was performed by Emmons in March, 2018.

The transplant left Phelps immunocompromised and at increased risk for infection.

According to court records, Emmons devised the post-transplant care for Phelps and communicated the plan to Seshadri, an oncologist in Bowling Green.

Prior to her discharge from the hospital in Louisville, Phelps was prescribed Acyclovir, an antiviral medication used to treat shingles and chicken pox, and her post-transplant care in Bowling Green called for up to 16 cycles of an antibody drug called brentuximab vedotin to treat the cancer.

However, the post-transplant plan did not include a prescription for Bactrim.

Alcott said that while that particular pneumonia is rare for a patient in Phelps’ condition to develop, it carries a high mortality rate.

Other doctors in U of L’s bone and marrow transplant division prescribed Bactrim to patients like Phelps who had undergone stem cell transplants, but Emmons, who had joined the program from a hospital in Louisiana earlier in 2018, did not do so.

Attorneys for Emmons argued that he acted reasonably and appropriately in his evaluation, treatment and care of Phelps, and that there was no policy in place at the hospital regarding the use of prophylactic antibiotics such as Bactrim for patients like Phelps.

“What (Emmons) was saying is, if she ends up getting the pneumonia, we’ll see the symptoms and we can treat it,” Alcott said. “But you have to catch it.”

Less than a month after being discharged from the hospital in Louisville and within a week of starting her treatment in Bowling Green, Phelps developed complications that presented initially as an elevated heart rate and a headache.

Court records show that Phelps also suffered abdominal pain, nausea and cramps, eventually being admitted to The Medical Center and treated with steroids.

A month later, on July 15, 2018, Phelps was back in the emergency room of The Medical Center complaining of shortness of breath, and two CT scans of her chest showed abnormal activity, including an inflamed lung.

Phelps’ health problems persisted, leading to an evaluation by Emmons on Aug. 17, 2018, with court records showing that the doctor failed to obtain a copy of the CT scans.

Two days later, Phelps went to the emergency room at TriStar Greenview Regional Hospital complaining of a cough and breathing problems, and was flown on Aug. 23, 2018, to University of Louisville Hospital, where she was diagnosed with pneumonia.

Phelps was then treated with Bactrim, but her condition deteriorated and she died on Sept. 5, 2018, from complications arising from her pneumonia.

Phelps’ legal team, which consisted of Alcott and attorney Chad Gardner, argued at trial that Phelps was harmed by a lack of communication between Emmons and Seshadri when her health problems surfaced.

“Between the two doctors and their poor communication, they weren’t figuring out what was going on with her,” Alcott said. “They thought it was a reaction to the immunotherapies they were treating her with after the transplant. The doctor kept giving her steroids to keep the inflammation and the fever going away … by the time another doctor at Greenview figured it out, she went into complete respiratory failure and they couldn’t prevent her from dying.”

Alcott said Dr. Robert Jon Soiffer of Boston’s Dana-Farber Cancer Institute testified as an expert witness on Phelps’ behalf and told jurors at trial that it was unreasonable for a doctor to not prescribe Bactrim to a person like Phelps who had a compromised immune system following a stem cell transplant.

Seshadri and Graves-Gilbert Clinic were named as defendants in a lawsuit filed in 2019 in Warren Circuit Court by the Phelps estate, and an out-of-court settlement was reached in that case.

Emmons was named as a defendant in that case as well, but it was transferred to Jefferson Circuit Court due to that being the county where he practices.

The jury that heard the medical malpractice case in Jefferson County decided on an award of more than $44 million and assigned 60 percent of the fault to Seshadri and 40 percent to Emmons.

Since Seshadri settled all claims against her out of court, the Phelps estate is entitled only to the portion of damages for which Emmons is liable, totaling more than $17 million.

Attorney James Grohmann, representing University of Louisville Physicians Inc., provided the Daily News with the following response to the verdict:

“The Phelps family no doubt suffered a great loss with the passing of Ashley Phelps. But that doesn’t justify the verdict against this fine physician.”