
WILMINGTON — Novant Health and two physicians with a local medical practice have been named defendants in an ongoing lawsuit over an alleged wrongful death, medical malpractice and negligence at New Hanover Regional Medical Center.
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Kyle Horton — Wilmington resident, internal medicine physician and former candidate for the House of Representatives — is suing Novant Health, Atlantic Brain and Spine, Physician Assistant Chase Whelan and Doctor of Osteopathic Medicine Jeffrey Beecher. The lawsuit was filed Feb. 28, 2024, nearly two years after her father, Sam Horton Jr., died while in the defendants’ care.
The suit outlines Sam Horton’s five-month treatment in and out of Novant’s New Hanover Regional Medical Center and details multiple procedures drilling into his brain that the survivor of metastatic melanoma underwent and couldn’t recover from.
Kyle Horton’s experience is one in a long line of complaints lodged against the region’s only full-scale hospital. Since the healthcare organization took over NHRMC, it has struggled to maintain staff, earn a high rating from watchdog agencies and even risked losing its Medicare contract due to dangerous conditions in its emergency department, all of which have prompted the community to demand accountability.
The case is still in the pre-trial phase with a tentative court date for April 27, 2026.
The suit is based primarily on Whelan’s course of treatment and Beecher’s lack of supervision, both employed at Atlantic Brain and Spine, which contracts with Novant NHRMC. It states Sam Horton died after a “series of shockingly negligent medical actions and inactions at NHRMC that led to his downfall and ultimate demise.”
The lawsuit argues Whelan was not qualified to perform an EVD — placement of an external ventricular drain to relieve fluid on the brain — which he did twice on Sam Horton. The suit states Whelan did this without supervision from a medical doctor.
Kyle Horton also claims the procedure was not necessary, as her father’s life was not in immediate jeopardy, and the defendants’ handling of her father’s symptoms actually made her father worse.
Novant Health, Beecher and Whelan have denied these assertions.
However, a North Carolina Department of Health and Human Services investigation substantiated all three of Kyle Horton’s claims on March 24, 2024. The report notes its findings were concluded based on observations of care, interviews with staff and physicians, policy review and medical record review.
Kyle Horton declined to speak with Port City Daily due to the active litigation, but her attorney provided the outlet with a copy of the DHHS report.
The report shows DHHS substantiated the following claims:
- The hospital’s medical staff allowed an Advanced Practice Provider to perform a procedure without privileges to do so
- Facility staff failed to ensure an informed consent was obtained for a procedure that was performed
- Facility staff and providers failed to provide information/instructions following a procedure that included device safety and signs and symptoms to be aware of if the device failed
(Kyle Horton’s lawsuit states the DHHS report substantiated four claims, one being that Whelan performed the EVD without a supervising physician, but this was not an official allegation in the report, though could be considered part of the first claim).
Small segments of the DHHS report are included in the lawsuit. Beecher and Whelan’s filing doesn’t directly refute them but argues the “full and complete DHHS Investigation Report” explains Horton’s case. The report omits names of hospital personnel.
Sam Horton was readmitted to the hospital on Oct. 28, 2021, one week after undergoing a craniotomy procedure related to his cancer treatment. The lawsuit reports he was experiencing perseverating thoughts, confusion and urinary incontinence. He came to the ER with similar symptoms twice before in the week since his craniotomy.
The suit indicates Whelan diagnosed Sam Horton with hydrocephalus (water on the brain). Whelan chose to insert an external ventricular drain, or EVD, into the patient’s brain in a process that involves drilling into the skull and inserting a plastic tube, designed to pull fluid from the brain’s ventricles.
Whelan would perform another EVD procedure on Sam Horton the following day; the drain was placed in the wrong position the first time.
The DHHS report indicates Whelan viewed both EVD procedures as emergencies and thus, not necessitating written consent. Kyle Horton said in the lawsuit she nor her father agreed. Even though an emergency would negate the need for consent, the defendants deny consent was not given; medical records state Kyle Horton was informed of the procedure and verbally concurred.
The physicians reported to DHHS the procedure was discussed with Kyle Horton. Medical records made available in the DHHS report note Kyle Horton was initially concerned about the EVD, wanting to take her father home and opt for an out-patient MRI, but eventually agreed with the emergency EVD plan.
“Whelan performed the the EVD procedure on Mr. Horton because it was appropriate and necessary under the circumstances at the time and that he exercised his best medical judgement in the care and treatment of Mr. Horton,” the physicians’ filing states.
Kyle Horton argues Whelan should not have performed this procedure, as he wasn’t qualified to do so; the DHHS report shows this is technically true.
Whelan was granted temporary privileges to perform an EVD under the hospital’s department of neurosciences for a period spanning Nov. 25, 2019, to Feb. 23, 2020. This means Whelan was allowed to conduct an EVD placement as part of a collaborative agreement with his supervising physician during the three-month timeframeThe agreements at NHRMC are renewed every six months, according to the DHHS report. However, Whelan’s renewal did not include the EVD procedure; the report does not list whether this was intentional or an accidental omission, though it clues at the latter.
The report states Whelan was trained and competent in the procedure, per his supervisor.
Hospital documents show approval to perform an EVD requires the medical professional to undergo 10 proctored cases. When his privilege approval was active, Whelan performed EVD placements under Beecher’s supervision multiple times, according to the DHHS report.
It appears Whelan wasn’t the only physician experiencing problems with the collaborative agreement process. DHHS learned hospital leadership believed the current way of providing privilege to physicians was “problematic” and a plan was underway to overhaul the system.
The DHHS report does not address whether Whelan had to be supervised in order to perform the surgery, even if he did have the right credentials.
Nevertheless, Novant Health denies Whelan acted unsupervised, as Kyle Horton’s lawsuit claims. Whelan and Beecher do not overtly deny this claim in their filing, but state they do not possess sufficient knowledge to confirm nor deny.
Not only does Kyle Horton dispute Whelan’s qualifications, but also his assessment that Sam Horton’s condition was an emergency. She argues her father was lucid and able to give consent, as was she, though neither were asked before the EVD procedure. The lawsuit doesn’t differentiate between verbal and written consent, but DHHS substantiated that neither Horton gave informed written consent.
Because she believed her father’s life was not in danger, Kyle Horton disagreed with the escalation to EVD and questions in the lawsuit why alternative options were not considered. The example she put forth is the less invasive lumbar puncture — inserting a needle into the lower back to extract fluid.
But Kyle Horton claims in the lawsuit her father’s medical records do not indicate this, nor any alternative to the EVD, was considered. Novant has denied this.
Interviews within the DHHS report show the medical staff were familiar with Sam Horton’s other recent visits to the ER and that he appeared to be declining, indicating the need for immediate action. However, Kyle Horton claims in the suit the attending emergency room doctor concluded her father’s cognition was normal, though Novant Health also denied this.
Additionally, Kyle Horton points out a second EVD was needed to correct the improper placement of the first tube, though this is a risk of the procedure. Medical records outlined in the DHHS report do not list complications resulting from either procedure.
Going even further beyond the treatment plan, Kyle Horton disputes her father’s diagnosis. She believes he was suffering from an infection, not hydrocephalus.
According to her suit, Sam Horton’s medical records indicate his intracranial pressure was 3mmHg, while a justification for the procedure should have been higher than 20 mmHg. Additionally, the EVD drain had only pulled 15 milliliters out in the days after insertion, while typical amounts should be 10 to 15 milliliters per hour, indicating hydrocephalus was not present.
However, the medical records outlined in the DHHS report note a scan of Sam Horton’s brain confirmed the hydrocephalus diagnosis.
This claim is not part of the DHHS report. The defendants have not outright denied the accuracy of this information, as presented by Kyle Horton, but note in their filing details details of the medical records will be revealed in the discovery portion of the case.
Following the EVD procedures, Kyle Horton said her father’s condition deteriorated; he became persistently disoriented, but she says there’s no record to indicate alternative explanations for his condition were considered. Novant denied both these claims.
Eventually, he would receive a shunt in his brain, essentially a permanent version of the EVD to keep chronic fluid off it. Kyle Horton reported her father was struggling with speech and recommended for in-patient speech rehabilitation, though she said the hospital declined admission. The DHHS report confirms rehab was requested and denied.
A week after the shunt procedure, Sam Horton was discharged from the hospital with the wrong paperwork. The report shows he was given aftercare instructions for a craniotomy instead of shunt; the succeeding events recorded in the lawsuit detail Sam Horton’s difficulty in recovering from the shunt procedure.
Sam Horton came back to the hospital on Dec. 22 because his shunt wound was infected, the lawsuit outlines, and was discharged the same day. Yet, he returned the next day via ambulance due to declined mental status and bloody discharge from shunt.
By January, Kyle Horton reported her father was having abdominal pain and couldn’t walk, though he was transferred to rehab; he would eventually be sent back to the hospital, where an exam revealed an abdominal abscess. It’s noted that Sam Horton had lost nearly 50 pounds while undergoing treatment at the hospital and was sent to the ICU on Feb. 18.
His official cause of death is listed as Covid-19. The lawsuit said his medical records show he died of pneumonia and pneumothorax following a hospital-acquired infection with Covid-19. The lawsuit and medical records in the DHHS report indicate multiple instances where Kyle Horton expressed concern about her father becoming ill while in the hospital.
Port City Daily reached out to Kyle Horton, her lawyers and Novant. Novant provided the following statement:
“Our team members dedicate their lives to helping people recover from illness and injury, and we extend our deepest condolences to anyone experiencing the loss of a loved one. Out of respect for patient privacy we are not able to comment on the details of any patient’s care. Nor are we able to comment on active litigation.”
Novant has received lots of criticism from the community since it took over the hospital, but the calls for accountability ramped up when it was found to be in immediate jeopardy of losing its Medicare license three years ago. CMS investigated the facility in June 2022 and found noncompliance with one or more Medicare conditions that caused, or is likely to cause, serious injury, harm, impairment, or death to a patient; much of the problem came from critically low staffing numbers. The hospital was removed from immediate jeopardy in August 2022.
Bad experiences at Novant came up again at the Jan. 6 county commissioner meeting from a former physician who started the Cape Fear Five Star Project. John Martell spoke to each commissioner and told them to bear witness to a different story he was aware of from Novant — including ones untold and yet to be heard.
Martell mentioned to commissioners a child who passed away in the emergency room last year, to which he said details would be revealed in a trial, and an entrepreneur who died after a long illness “unnecessarily after a series of medical mistakes that were preventable.”
Martell’s mission is to push commissioners to hold Novant accountable to fulfill its contractual commitment of providing five-star service to its patients. The Center for Medicare and Medicaid Services ranks Novant’s New Hanover Regional Medical Center in the bottom 30% of hospitals nationwide for quality — two-out of five stars for its overall rating.
CMS reviews are considered an authoritative source for ranking 2,847 hospitals nationwide on metrics including safety, mortality, and timeliness of care. An email composed by New Hanover County Manager Chris Coudriet last fall states Novant Health told him some of the data being considered in the ranking was before Novant’s tenure.
Novant Health purchased NHRMC in 2021 from the county for $1.5 billion, signed off on by commissioners, and has faced a litany of issues. Martell has asked commissioners to adopt a resolution that holds Novant to its Asset Purchase Agreement, which includes the provision that Novant use reasonable best efforts to position its healthcare in the top 10% of national quality metrics.
“As we enter the new year, I want you to remember these stories. I want you to think about these stories,” Martell said at the Jan. 6 commissioner meeting. “These are your constituents. You have the power to request clarity and accountability in hospital care. I want you to think about it. I think we need you to use that power.”
Reach journalist Brenna Flanagan at brenna@portcitydaily.com.
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