IN THE CIRCUIT COURT OF TENNESSEE

FOR THE THIRTIETH JUDICIAL DISTRICT AT MEMPHIS

DRUSHEENA WELLS, Individually and

Next Friend and Widow of CRAIG WELLS,
DECEASED

Plaintiff,

VS. DOCKET NO. ___________

DIVISION _____
JURY TRIAL DEMANDED

FRESENIUS MEDICAL CARE HOLDINGS, INC.

d/b/a FRESENIUS MEDICAL CARE NORTH
AMERICA; BIO-MEDICAL APPLICATIONS
OF TENNESSEE, INC.; FRESENIUS MEDICAL
CARE HEALTHCARE RECRUITMENT, LLC;
ETHEL EUBANKS, RN, JANE/JOHN DOE MEDICAL
STAFF; MID-SOUTH REGIONAL BLOOD CENTER;
and LIFEBLOOD BIOLOGICAL SERVICES, LLC.

Defendants.

COMPLAINT FOR MEDICAL MALPRACTICE AND WRONGFUL DEATH

Plaintiff, Drusheena Wells, individually and as next friend and widow of Craig

Wells, deceased, for cause of action against the Defendants: Fresenius Medical Care

Holdings, Inc. d/b/a Fresenius Medical Care North America; Bio-Medical Applications

of Tennessee, Inc.; Fresenius Medical Care Healthcare Recruitment, LLC; Ethel

Eubanks, RN; Jane/John Doe Medical Staff; Mid-South Regional Blood Center; and,

Lifeblood Biological Services, LLC; would charge and allege unto the Court as follows:

PARTIES

1. Craig Wells was an adult resident of Memphis, Shelby County Tennessee.

He died on May 22, 2010 following injuries he sustained at the hands of the Defendants,

as more fully set out below. This suit is brought pursuant to T.C.A 20-5-101, et. seq. and

other applicable Tennessee law.

2. Your Plaintiff, is the widow and next friend of Craig Wells, she is an adult

resident of Memphis, Shelby County Tennessee and is before the Court both in her

individual capacity and as widow and next of friend of Craig Wells and on behalf of the

children of Craig Wells.

3. Your Defendant Fresenius Medical Care Holdings, Inc. d/b/a Fresenius

Medical Care North America (hereinafter “Fresenius North America”) is a New York

Corporation with corporate offices located at 920 Winter Street, Waltham,

Massachusetts, 02451, and actively owning and/or managing and directing dialysis

clinics nationwide, including in Memphis, Shelby County, Tennessee. Its registered

agent for service of process is CT Corporation System.

4. Your Defendant Bio-Medical Applications of Tennessee, Inc. (herienafter

“Bio-Medical Applications”) is a Tennessee Corporation with corporate offices located at

920 Winter Street, Waltham, Massachusetts, 02451 and actively owns and /or manages

the MKDS Fresenius Medical Care of Memphis Midtown Dialysis Clinic located at 2225

Union Avenue, #200, Memphis, Shelby County, Tennessee 38104. Its registered agent

for service of process is CT Corporation System

5. Your Defendant Fresenius Medical Care Healthcare Recruitment, LLC

(hereinafter “Fresenius Recruitment”) is a Delaware Corporation with corporate offices

located at 920 Winter Street, Waltham, Massachusetts, 02451 and actively providing

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nursing and medical staff to “Fresenius” dialysis clinics nationwide, including the MKDS

Fresenius Medical Care of Memphis Midtown, 2225 Union Avenue, #200, Memphis,

Shelby County, Tennessee 38104. Its registered agent for service of process is CT

Corporation System.

6. Your Defendant Ethel Eubanks, RN is an adult resident of Memphis,

Shelby County Tennessee, she is a registered nurse licensed by the State of Tennessee

and can be served though her attorney, Erika M. Eubanks, Esq., Godwin, Morris,

Laurenzi & Bloomfield, P.C., 50 North Front Street, Suite 800, Memphis, TN 38103. At

all relevant times, Defendant Eubanks was acting within the course and scope of her

employment at MKDS Fresenius Medical Care of Memphis Midtown, 2225 Union

Avenue, #200, Memphis, Shelby County, Tennessee 38104.

7. Your Defendant Jane/John Doe Medical Staff (“DOE STAFF”) are the

unknown medical staff present at the MKDS Fresenius Medical Care of Memphis

Midtown dialysis clinic located at 2225 Union Avenue at the time of the subject incident

or responsible for the care of the deceased Plaintiff or the conditions of the facility at the

time of the subject incident. At all times relevant hereto, they were acting within the

course and scope of their employment at MKDS Fresenius Medical Care of Memphis

Midtown, 2225 Union Avenue, #200, Memphis, Shelby County, Tennessee 38104.

8. Your Defendant Mid-South Regional Blood Center is a Tennessee

Corporation actively doing business in Memphis, Shelby County Tennessee and can be

served through its registered agent for service of process Susan Berry-Buckley, 1040

Madison Avenue, Memphis, TN 38104.

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 9. Your Defendant Lifeblood Biological Services, LLC is a Tennessee

Corporation actively doing business in Memphis, Shelby County Tennessee and can be

served through its registered agent for service of process Edward P. Scott, 1040 Madison

Avenue, Memphis, TN 38104.

COMPLIANCE WITH NOTICE AND GOOD FAITH REQUIREMENTS

10. The allegations set forth in the previous paragraphs of this Complaint are

incorporated herein by reference.

11. Plaintiff has complied with the notice requirements outlined in T.C.A. 29-

26-121 concerning these Defendants, and as such, the Complaint is timely filed.

Attached to the complaint are copies of compliant notice letters sent to Defendants.

12. Counsel for Plaintiff are filing a Certificate of Good Faith along with this

Complaint confirming that the undersigned has consulted with competent experts who

believe there is a good faith basis to pursue this claim.

JURISDICTION AND VENUE

13. The allegations set forth in the previous paragraphs of this Complaint are

incorporated herein by reference.

14. Plaintiff alleges that this cause of action arises in tort as a result of the

injuries and damages negligently inflicted upon them by the Defendants, such injuries

arising out of the negligent care of the decedent on or about May 22, 2010 and the

unreasonably dangerous condition of the facility on the subject date.

15. Venue in the instant case is properly found in Shelby County, Tennessee,

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pursuant to inter alia T.C.A. 20-4-101, et. seq.

16. This Court has Jurisdiction over the instant action as all of the

transactions and occurrences subject of the present litigation took place in Shelby

County, Tennessee and all the Defendants actively do business and/or have significant

contacts in Memphis, Shelby County, Tennessee.

FACTS

17. The allegations set forth in the previous paragraphs of this Complaint are

incorporated herein by reference.

18. On or about May 22, 2010, Craig Wells was a dialysis patient at the MKDS

Fresenius Medical Care of Memphis Midtown Dialysis Clinic (herienafter, “Dialysis

Clinic”) located at 2225 Union Avenue, Memphis, Tennessee.

19. According to the Tennessee Department of Health, the Dialysis Clinic was

directly owned and operated by Defendant Bio-Medical Applications of Tennessee, Inc.,

upon information and belief, Bio-Medical Applications of Tennessee, Inc. is a wholly

owned subsidiary of Fresenius Medical Care Holdings, Inc. d/b/a Fresenius Medical

Care North America. Additionally, Fresenius Medical Care Healthcare Recruitment,

LLC is also a is a wholly owned subsidiary of Fresenius Medical Care Holdings, Inc.

d/b/a Fresenius Medical Care North America (hereinafter the three entities collectively

will be referred to as “Fresenius Corporate Defendants”).

20. Upon information and belief, shortly before May, 2010 one or more of the

Fresenius Corporate Defendants purchased or assumed responsibility for the

management of the Dialysis Clinic. As a result of the change in ownership or

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management there was a high level of staff turnover, the patient census increased,

equipment was not properly maintained or provided, there was chronic shortage of

qualified staff and the policies and procedures of the clinic were modified; all of which

had a negative impact on patient care.

21. Upon information and belief, one or more of the Fresenius Corporate

Defendants was responsible for the policies and procedures, including staffing, training,

maintenance of equipment, handling of blood and administration of transfusions at the

Dialysis Clinic.

22. Upon information and belief, on or about May 22, 2010, the Dialysis Clinic

did not have an established procedure for the safe handling of blood or the

administration of transfusions to patients.

23. Upon information and belief, for the four month prior to and including

May 22, 2010 the Dialysis Clinic did not have any training, in-services or instruction to

the nursing staff concerning proper and safe methodology for handling blood or the

administration of transfusions of blood to patients.

24. Upon information and belief, the staff at the Dialysis Clinic worked under

the direct supervision and/or direction of one or more the Fresenius Corporate

Defendants.

25. On or about May, 2010 the Dialysis Clinic was chronically understaffed

and had to rely upon temporary nurses brought in from other facilities.

26. On May 22, 2010, the Dialysis Clinic did not have sufficient staff to

properly meet the needs of its patients, which resulted in each nurse being responsible

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for more patients than she could safely monitor or treat, specifically Nurse Ethel

Eubanks did not have sufficient dialysis technicians to assist her in the care of her

patients.

27. The nursing staff at the Dialysis Clinic was trained to electronically chart

the progress of the dialysis treatment of their patients, for weeks leading up to and

including May 22, 2010 the electronic charting mechanisms were not operable

necessitating more time consuming paper charting, which took time away from patient

care.

28. Upon information and belief, Dr. Weslam Ballouk was the medical director

of the MKDS Fresenius Medical Care of Memphis Midtown Dialysis Clinic and was

either an employee and/or agent of had some type of pecuniary relationship with one or

more of the Fresenius Corporate Defendants.

29. Upon information and belief, The Kidney Group of Memphis, PLLC was

the employer of Dr. Ballouk and had a pecuniary relationship with one or more of the

Fresenius Corporate Defendants.

30. Mr. Wells was prescribed by Dr. Weslam Ballouk a transfusion of three

units of blood to be administered along with his scheduled dialysis treatment on May 22,

2010 noting that Mr. Wells was “severely anemic”.

31. A transfusion of a single unit of blood for a dialysis patient is an unusual

occurrence, typically only one patient in a medical practice is prescribed a transfusion

every one to two months; of these transfusions, only 10% to 20% require three units of

blood.

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 32. It is the accepted and customary practice in urban metropolitan / regional

medical centers such as Memphis, Shelby County, Tennessee that transfusions are to be

administered to patients in a hospital.

33. Upon information and belief, no transfusions had been performed at the

Dialysis Clinic in the months leading up to May 22, 2010.

34. On May 22, 2010 two patients were scheduled to receive transfusions, the

Decedent and Mr. Kenneth Hayes.

35. Upon information and belief, there were financial incentives for Dr.

Ballouk and/or The Kidney Group of Memphis, PLLC to direct patients away from

hospital care to the Dialysis Clinic.

36. Mid-South Regional Blood Center; and/or Lifeblood Biological Services,

LLC was the blood-bank who provided blood to the MKDS Fresenius Medical Care of

Memphis Midtown Dialysis Clinic for both the Decedent and Mr. Kenneth Hayes on May

22, 2010.

37. Ethel Eubanks, RN, was directly responsible for the care and treatment of

Mr. Wells at the Dialysis Clinic on May 22, 2010.

38. After Mr. Wells’ dialysis treatment commenced, Ms. Eubanks was notified

by her shift manager, Jane Doe, that Mr. Well’s blood had arrived from the blood bank.

39. Each unit of blood is marked with the patient’s name, blood type and other

pertinent information.

40. Jane Doe removed Mr. Wells’ blood from the Styrofoam cooler in which it

was delivered from the blood bank and along with Ms. Eubanks checked the blood

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identification information against Mr. Wells’ chart to ensure that the proper blood had

been delivered, Mr. Wells’ blood type was O positive.

41. Ms. Eubanks took one unit of verified blood to Mr. Wells and Jane Doe

replaced the remaining two units of blood into the Styrofoam cooler.

42. Unbeknownst to Ms. Eubanks, the Styrofoam cooler also contained units

of blood for Kenneth Hayes, who is blood type A positive, there was nothing on the

outside of the container indicating that it contained blood for more than one person.

43. At 8:45 a.m. Ms. Eubanks hooked up the first unit of blood to Mr. Wells’

dialysis machine and administered it into his bloodstream, she did so with no other

members of the staff assisting her.

44. Around 9:05 a.m. Ms. Eubanks removed a second unit of blood from the

Styrofoam cooler and brought it to Mr. Wells. She hung the bag of blood, removed the

label and administered it into his bloodstream. All without looking at the unit to blood

or the label to ensure that it was one of the units designated for use with Mr. Wells and

without any assistance from other members of the staff.

45. The second unit of blood was not designated for use with Mr. Wells but for

Mr. Hayes.

46. The only member of the Dialysis Clinic staff checking on Mr. Wells’

transfusion was Ms. Eubanks. By the time she returned to check on Mr. Wells, half of

the type incompatible blood had been pumped into his bloodstream. She found him

unresponsive to verbal or painful stimuli and she instituted emergency procedures.

EMS was called and paramedics shortly arrived and took Mr. Wells to the emergency

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room at Methodist University Hospital where death was pronounced shortly thereafter.

47. It was not until after Mr. Wells left the facility that Ms. Eubanks finally

looked at the blood bag receipt and noticed that she administered the wrong blood to

Mr. Wells, in looking up she realized that Mr. Wells’ blood was hooked up to Mr. Hayes’

dialysis machine and was about to be administered to him. She was able to advise Mr.

Hayes’ nurse of the mistake and prevent Mr. Wells’ blood from being pumped into the

wrong patient. Mr. Hayes was never advised of the fact that type incompatible blood

was hooked up to his dialysis machine and almost administered to him.

48. At all times relevant hereto, Ms. Eubanks was an employee of and working

within the course and scope of her employment with Fresenius Recruitment and, or

Fresenius North America and/or Bio-Medical Applications .

49. At all times relevant hereto, Ms. Eubanks and Doe Medical Staff were

acting under the direction and control of Fresenius North America and Bio-Medical

Applications.

50. At all times relevant hereto, Ms. Eubanks and Doe Medical Staff were

actual or apparent agents of Fresenius North America; Bio-Medical Applications and/or

Fresenius Recruitment.

51. The official cause of death as determined by the Shelby County Medical

Examiner’s Office was “Cardiac Arrhythmia in the Setting of ABO-incompatible Blood

Transfusion and Kidney Dialysis” – meaning that the administration of half a unit of

type A Rh negative blood into Mr. Wells’ bloodstream was the direct and sole cause of

his death.

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 52. Mr. Wells is survived by your Plaintiff, his widow Drusheena Wells and

their three minor children.

NEGLIGENCE OF ETHEL EUBANKS

53. The allegations set forth in the previous paragraphs of this Complaint are

incorporated herein by reference.

54. It is the standard of care for registered nurses in Memphis, Shelby County,

Tennessee to administer only a unit of blood to a patient which is type compatible and

has been designated for use with the particular patient.

55. Ms. Eubanks deviated from the minimally acceptable standard of care

when, on May 22, 2010 she administered to Mr. Wells incompatible blood which was

designated for use with another patient.

56. Ms. Eubanks’ deviation from the appropriate standard of care was a direct

and proximate cause of Mr. Wells’ injury and damage, including death, which would not

have occurred absent her deviation from the applicable standard of care which was in

effect on May, 2010.

NEGLIGENCE OF FRESENIUS NORTH AMERICA, BIO-MEDICAL

APPLICATIONS AND FRESENIUS RECRUITMENT

57. The allegations set forth in the previous paragraphs of this Complaint are

incorporated herein by reference.

58. At all times pertinent hereto, Defendants Fresenius North America, Bio-

Medical Applications and Fresenius Recruitment (collectively “Fresenius Corporate

Defendants”) were responsible for providing competent and adequately trained

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healthcare providers to include dialysis technicians, nurses and physicians. Accordingly,

Fresenius Corporate Defendants are vicariously liable for the negligent care provided by

the nurses and other clinic staff who were agents, apparent agents, and/or employees of

Fresenius Corporate Defendants.

59. Fresenius Corporate Defendants are liable for the negligent acts including

but not limited to the following negligent acts and/or omission of its agents, apparent

agents, and/or employees:

a. Failure to ensure that the designated unit of blood was being

administered to Mr. Wells;
b. Failure to abide by appropriate safety procedures for the safe
handling of blood and for the administration of transfusions,
specifically failure to have two nurses present for administering
each unit of blood;
c. Failure to properly supervise the nursing staff to ensure that proper
protocols for the safe administration of transfusions was being
employed;
d. Failure to properly train nurses, dialysis technicians and other staff
regarding the safe and appropriate procedures for checking blood
and performing transfusions of blood;
e. Failure to enact and/or implement reasonable and safe policies and
procedures for the handling of blood and performance of
transfusions at the Dialysis Clinic;
f. Failure to properly maintain equipment at the Dialysis Clinic so that
nursing staff can devote appropriate time to patient care and needs;
g. Failure to maintain a safe ratio of patients to nursing/clinical staff
to ensure patient safety;
h. Performing unsafe procedures at the Dialysis Clinic, specifically:

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 i. Performing transfusions at the Dialysis Clinic which should
have been performed at a hospital;
ii. Performing transfusions of multiple units of blood, this
should have been performed at a hospital;
i. Creating financial incentives designed and intended to induce Mr.
Wells’ treating physician, Dr. Ballouk, to direct Mr. Wells away
from treatment at a hospital to the Dialysis Clinic;
j. Deviating from the applicable standard of care with regard to the
medical treatment of Mr. Wells.

60. The foregoing acts of negligence were a direct and proximate cause of Mr.

Wells’ death on May 22, 2010. Mr. Wells would not have died had the Fresenius

Corporate Defendants not deviated from the accepted standard of care existing in

Memphis, Shelby County, Tennessee in May, 2010.

NEGLIGENCE OF FRESENIUS CORPORATE DEFENDANTS AGENTS

and/or APPARENT AGENT

61. The allegations set forth in the previous paragraphs of this Complaint are

incorporated herein by reference.

62. The Fresenius Corporate Defendants, their agents, and apparent agents,

acting in the course and scope of their employment or agency, deviated from the

accepted standard of care and committed negligent acts including but not limited to:

a. Administering blood to Mr. Wells which was designated and labeled

to be used for another patient;
b. Failing to make sure that the proper, labeled unit of blood was for a
the particular patient, Mr. Wells and Mr. Hayes, on May 22, 2010

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 before hooking the blood bag up the their respective dialysis
machines;
c. Failure to properly monitor Mr. Wells generally;
d. Failure to abide by the applicable procedures for the safe and
appropriate handling of blood;
e. Failure to abide by the applicable procedures for the safe and
effective transfusions of blood;
f. Performing a transfusion of blood generally in a facility which is not
properly equipped to safely effectuate the procedure;
g. Performing a transfusion of multiple units (3) of blood at the
dialysis clinic which should only have been performed at a hospital;
h. Deviating from the applicable standard of care with regard to the
medical treatment of Mr. Wells.

63. The foregoing acts of negligence were a direct and proximate cause of Mr.

Wells’ death on May 22, 2010. Mr. Wells would not have died had the agents and/or

apparent agents of the Fresenius Corporate Defendants not deviated from the accepted

standard of care existing in Memphis, Shelby County, Tennessee in May, 2010.

NEGLIGENCE OF EUBANKS AND DOE MEDICAL STAFF

64. The allegations set forth in the previous paragraphs of this Complaint are

incorporated herein by reference.

65. Defendants Eubanks and Jane/John Doe Medical Staff were charged with

the responsibility of treating Mr. Wells and were the agents or apparent agents of

Defendants Fresenius North America, Biomedical Applications and/or Fresenius

Recruitment at all times relevant to this action. Said individuals, acting in the course

and scope of their employment, agency or apparent agency, negligently failed to comply
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with appropriate safety protocols concerning safe handling of blood or monitoring Mr.

Wells’ treatment and/or the administration of the transfusion of blood to him. Plaintiff

incorporates by reference the allegation of negligence above with regard to these

Defendants.

66. In the event these Defendants were not acting as employees or agents of

Defendants Fresenius North America, Biomedical Applications and/or Fresenius

Recruitment, Plaintiff brings this action against them in their individual capacities.

RES IPSA LOQUITUR—T.C.A. § 29-26-115(c)

67. The allegations set forth in the previous paragraphs of this Complaint are

incorporated herein by reference.

68. The instrumentality causing the injury and death of Mr. Wells, the type

incompatible unit of blood, was under the exclusive control of one or more of the

Defendants. Type incompatible blood labeled for use with one patient is not ordinarily

administered to another patient absent negligence on the part of the medical

practitioner, and death is the natural and unavoidable result of the transfusion of

incompatible blood.

69. Based on the foregoing, there is a presumption of negligence on the part of

Defendant Eubanks and consequently of the Fresenius Corporate Defendants

derivatively as at all times pertinent hereto Ms. Eubanks was an employee and/or agent

or apparent agent of one or more of the Fresenius Corporate Defendants.

NEGLIGENCE OF MID-SOUTH REGIONAL BLOOD CENTER;

and LIFEBLOOD BIOLOGICAL SERVICES, LLC
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 70. The allegations set forth in the previous paragraphs of this Complaint are

incorporated herein by reference

71. At all times pertinent hereto, Mid-South Regional Blood Center; and

Lifeblood Biological Services, LLC, (collectively “Blood Bank Defendants”) were

responsible for providing competent and adequately trained healthcare providers to

safely and properly transport blood and to deliver such blood to medical providers in

such a condition that blood for each particular patient is properly segregated from blood

products of other patients. Accordingly, the Blood Bank Defendants are vicariously

liable for the negligent care provided by the individuals charged with preparing blood

for delivery and making such deliveries to medical providers who were employees,

agents or apparent agents of the Blood Bank Defendants.

72. The Blood Bank Defendants are liable for the negligent acts including but

not limited to the following negligent acts and/or omission of its agents, apparent

agents, and/or employees:

a. Failure to ensure that the units of blood provided to the MKDS

Fresenius Medical Care of Memphis Midtown, 2225 Union Avenue,
#200, Memphis, Shelby County, Tennessee 38104 on May 22,
2o1o were produced in separate containers for each patient so that
the units of blood for each patient would not be mixed up;
b. Failure to abide by appropriate safety procedures for the safe
handling and transport of blood for use in transfusions;

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 c. Failure to properly supervise its staff to ensure that proper
protocols for the safe distribution and delivery of blood products
was being employed on May 22, 2010;
d. Failure to properly train its staff regarding the safe and appropriate
procedures for delivering blood;
e. Failure to enact and/or implement reasonable and safe policies and
procedures for the handling of blood and performance of
transfusions at the Dialysis Clinic;
f. Deviating from the applicable standard of care with regard to the
handling of blood designated for Mr. Wells and Kenneth Hayes on
May 22, 2010.

73. The foregoing acts of negligence were a direct and proximate cause of Mr.

Wells’ death on May 22, 2010. Mr. Wells would not have died had the Blood Bank

Defendants not deviated from the accepted standard of care existing in Memphis,

Shelby County, Tennessee in May, 2010.

PUNITIVE DAMAGES

74. The allegations set forth in the previous paragraphs of this Complaint are

incorporated herein by reference

75. The conduct of one or more of the Defendants as set forth above was either

fraudulent, intentional, malicious and/or reckless as defined by the Tennessee Supreme

Court in Hodges vs. S.C. Toof, 833 S.W.2d 896 (Tenn.1992), et. seq. so as to warrant the

award of punitive damages.

RELIEF SOUGHT

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 76. The allegations set forth in the previous paragraphs of this Complaint are

incorporated herein by reference.

77. Plaintiff is seeking from all Defendants all damages allowable under the

Tennessee Medical Malpractice Act, Tennessee’s Wrongful Death Statutes, and all other

applicable laws including but not limited to loss of consortium damages and any and all

pecuniary damages.

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that summons be

issued and that Defendants be served and made to answer herein and that jury trial be

held for any cause of action where Plaintiff is entitled to a jury trial; that Plaintiff be

awarded a sum to be found to be just and equitable by the enlightened discretion of the

jury for compensatory damages for the wrongful death of Craig Wells against the

Defendants; and for a sum to be found adequate by the jury in punitive damages against

the Defendants for the conduct complained of herein; Plaintiff further requests all such

other relief to which she may be entitled in both Law and Equity and respectfully

demands a TRIAL BY JURY.

Respectfully Submitted,

Kenneth M. Margolis, #22906

Handel R. Durham, #10949
Attorneys for Plaintiff
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 100 North Main Street, #2601
Memphis, Tennessee 38103
Telephone: (901) 405-3013
kmargolis@margolis-law.com

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