MacDonald et al v. United States of America
Filing
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MEMORANDUM AND ORDER denying 23 Motion of USA for Summary Judgment; Scheduling conference call. Signed by Chief Judge James K. Bredar on 10/5/2018. (jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DELAINE MacDONALD et al.,
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Plaintiffs
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v.
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CIVIL NO. JKB-17-0754
UNITED STATES OF AMERICA,
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Defendant
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MEMORANDUM AND ORDER
I. Background
This case is brought by Plaintiffs Delaine MacDonald and Neal Kringel against the
United States of America under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, for
alleged medical malpractice by a surgeon, U.S. Army Lieutenant Colonel Leon Nesti, M.D.,
when he performed an operation on MacDonald to repair her carpal tunnel syndrome. (Compl.,
ECF No. 1.) The operation was performed at the Kimbrough Ambulatory Care Center at Fort
George G. Meade in Maryland. (Id. ¶¶ 10-11.) MacDonald alleges, and the Government does
not dispute, that her median nerve was partially lacerated during the course of the surgery. (Id.
¶ 12; Def.’s Ans. ¶ 13, ECF No. 10.)
The nerve damage was recognized and repaired
intraoperatively. (Compl. ¶ 12.) MacDonald alleges she suffers permanent damage from the
incident. (Id. ¶ 16.)
Now pending before the Court is the Government’s motion for summary judgment. (ECF
No. 23.) The motion has been briefed (ECF Nos. 26, 29), and no hearing is required, Local
Rule 105.6 (D. Md. 2016). The motion will be denied.
II. Standard for Summary Judgment
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to
current Rule 56(a)). The burden is on the moving party to demonstrate the absence of any
genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If
sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing
the motion, then a genuine dispute of material fact is presented and summary judgment should be
denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the “mere
existence of a scintilla of evidence in support of the [opposing party’s] position” is insufficient to
defeat a motion for summary judgment. Id. at 252. The facts themselves, and the inferences to
be drawn from the underlying facts, must be viewed in the light most favorable to the opposing
party, Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir.
2008), who may not rest upon the mere allegations or denials of his pleading but instead must, by
affidavit or other evidentiary showing, set out specific facts showing a genuine dispute for trial,
Fed. R. Civ. P. 56(c)(1). Supporting and opposing affidavits are to be made on personal
knowledge, contain such facts as would be admissible in evidence, and show affirmatively the
competence of the affiant to testify to the matters stated in the affidavit. Fed. R. Civ. P. 56(c)(4).
III. Analysis
The Government contends that the Plaintiffs’ expert’s opinions on the standard of care
and the breach of that standard are insufficient as a matter of law and, therefore, that the
Government is entitled to summary judgment in its favor on the question of whether Dr. Nesti
was negligent when MacDonald’s median nerve was damaged during the surgery. (Def.’s Mot.
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Summ. J. Supp. Mem. 2, ECF No. 23-1.) This contention is narrowly focused on particular parts
of the testimony of Plaintiffs’ expert, John Fowler, M.D., and fails to take into account Dr.
Fowler’s full opinion. Consequently, the prevailing Maryland case law does not support the
Government’s argument.
Because of their complexity, medical malpractice cases must ordinarily rely upon expert
testimony to establish breach of the standard of care and causation. Tucker v. Univ. Specialty
Hosp., 887 A.2d 74, 78 (Md. Ct. Spec. App. 2005). The Government contends Dr. Fowler’s
opinion on the standard of care is fatally flawed because, the Government argues, it amounts to a
strict liability standard. But this argument does not survive a careful reading of Dr. Fowler’s
opinion. Further, the Government argues Dr. Fowler fails to explain how the standard of care
was breached by Dr. Nesti.
Dr. Fowler’s qualifications as an expert on carpal tunnel release surgery are unquestioned
by the Government and are well established in the record. He states in his opinion that he has
“extensive experience performing both endoscopic and open carpal tunnel release surgery.”
(Fowler Op. 1, Def.’s Mot. Summ. J. Ex. B, ECF No. 23-3.) He also states, “I am familiar with
the techniques utilized by Dr. Leon Nesti during the carpal tunnel release surgery he performed
on Delaine MacDonald on December 17, 2013.” (Id.) With regard to the standard of care, Dr.
Fowler stated,
The standard of care for a hand surgeon performing carpal tunnel release,
regardless of whether the surgery is performed endoscopically or in an open
fashion, is to properly identify the anatomical structures of the wrist, including the
median nerve. The standard of care requires that the surgeon take precautionary
measures to protect the median nerve from injury during surgery. Protection of
the median nerve requires proper identification of the median nerve and
techniques to avoid nerve laceration while performing the surgery. In this
specific case, protection of [the] median nerve required incision of the distal
forearm fascia (to allow access to the carpal tunnel) without lacerating the median
nerve in the process.
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(Id. 2.)
As for his opinion on whether Dr. Nesti breached the standard of care, Dr. Fowler stated,
It is my opinion that Dr. Nesti breached the standard of care by not
properly identifying and protecting the median nerve during the December 17th
surgery, thereby lacerating it with the surgical knife. Lacerating the nerve that the
surgeon is intending to decompress breaches the standard of care. Once the skin
incision is made, it is imperative to dissect the subcutaneous fat off the distal
forearm antebrachial fascia and make a “window” in the fascia to allow insertion
of the endoscopic equipment into the carpal tunnel. Dr. Nesti made an
“L-shaped” window and he lacerated the median nerve while making the
horizontal part of the “L”. This could have been avoided by making two
longitudinal incisions in the fascia, lifting up the fascia, and then carefully
dividing the more proximal portion to make a “U-shaped” flap. Dr. Nesti
breached the standard of care by not properly protecting the median nerve while
making this flap and then lacerating the median nerve. Understanding the
anatomy and depth of dissection is an essential part of carpal tunnel surgery and
part of the standard of care. Dr. Nesti either mistook the nerve for part of the
distal forearm fascia and lacerated it directly or he cut too deeply while making
the fascial flap and lacerated the nerve. This breaches the standard of care.
(Id. 2-3.)
According to the Government, Dr. Fowler “relies exclusively on the mere fact of an
unsuccessful result of Ms. MacDonald’s surgery in reaching the opinion that Dr. Nesti breached
the standard of care. The mere fact of injury, without more, however, is insufficient to sustain a
medical negligence claim.” (Def.’s Mot. Summ. J. Supp. Mem. 4.) To support that contention,
the Government cites Nolan v. Dillon, 276 A.2d 36, 46 (Md. 1971), for the proposition, “It is
well established by the case law in [Maryland] that the mere fact that an unsuccessful result
follows medical treatment is not of itself evidence of negligence. Nor does the doctrine of res
ipsa loquitur apply.” Those statements may be accurate, as far as they go. But what was
expressed in Nolan has been refined and expounded upon in later opinions.
The case of Meda v. Brown, 569 A.2d 202 (Md. 1990), is instructive.
There the
Maryland Court of Appeals drew a distinction between a layman’s inference of negligence and
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an expert’s inference of negligence. In the former situation, the jury of laypersons would be
simply presented with the fact of injury and asked to draw an inference of negligence. Instead,
“[t]he plaintiff’s experts, armed with their fund of knowledge, drew certain inferences from the
circumstances.” Id. at 206-07.
Thus, the trial court did not commit error by admitting the
doctors’ opinions based on a combination of direct and circumstantial evidence. Id. at 207. This
distinction was amplified in Kennelly v. Burgess, 654 A.2d 1335 (Md. 1995), which approved an
expert witness’s reliance upon an unsuccessful result as a basis for his opinion that there was
negligence. Thus, “although an unsuccessful result does not create a presumption of negligence,
it still may be considered as some evidence of negligence and . . . an expert witness may consider
it in formulating his or her opinion that there was negligence.” Id. at 1341. Maryland cases
make it very clear that reliance by an expert upon the fact of injury is not an application of the
doctrine of res ipsa loquitur. Dover Elevator Co. v. Swann, 638 A.2d 762, 773 (Md. 1994);
Meda, 569 A.2d at 205. As was stated in Dover,
If expert testimony is used to raise an inference that the accident could not happen
had there been no negligence, then it is the expert witness, not an application of
the traditional res ipsa loquitur doctrine, that raises the inference. The expert
testimony offered in these “quasi res ipsa loquitur cases” differs somewhat from
more traditional expert testimony because, instead of testifying that a particular
act or omission constituted a failure to exercise due care, the expert testifies to the
probability that the injury was caused by the failure to exercise due care. The
expert also testifies that the accident ordinarily would not occur unless there was a
failure to exercise the appropriate degree of care. Like a res ipsa loquitur case,
such expert testimony is offered to explain why there is a probability of
negligence, which may be inferred from the circumstances of the accident, even
though the expert is unable to pinpoint any particular negligent conduct.
Although such testimony does not isolate the specific negligent conduct, it does
allow the jury to find negligence as the result of the expert’s opinion rather than
by circumstantial evidence and common knowledge as in the usual res ipsa
loquitur case.
638 A.2d at 773. Thus, Dover aligned with Meda, which had earlier rejected the defendants’
contention that the testimony of the plaintiff’s experts was “mere speculation or conjecture”
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because those experts “could not identify with particularity the specific act of negligence and
precise mechanism of injury.” 569 A.2d at 206.
As in Meda and Dover, the Government here faults Dr. Fowler for failing to explain how
Dr. Nesti breached the standard of care. But such precision is not necessary for a viable claim of
medical malpractice. Dr. Fowler’s opinion meets the governing standards in Maryland. It is
based upon his experience in performing the same type of surgery and his understanding of how
the median nerve can be injured or protected from injury. Similar to Tucker, the Government
“disputes the inferences and conclusions drawn by [the plaintiff’s expert]. But when a court
considers a motion for summary judgment, all reasonable or permissible inferences must be
resolved in favor of the non-moving party.” 887 A.2d at 82. See also Scott v. Harris, 550 U.S.
at 378 (applying same standard). A genuine dispute of material fact exists as to whether Dr.
Nesti was negligent when he lacerated MacDonald’s median nerve. Therefore, the Government
is not entitled to summary judgment.
IV. Conclusion
For the foregoing reasons, the Court DENIES the motion for summary judgment (ECF
No. 23). A scheduling conference call will be held on October 19, 2018, at 9:45 a.m. Plaintiffs’
counsel is to arrange for and initiate the conference call to chambers. The purpose of the call is
to set a trial schedule. Prior to the call, counsel should consult with their respective clients and
be able to advise the Court whether they consent to reference of this case for the conduct of all
further proceedings by a magistrate judge. As well, counsel should be prepared to advise the
Court whether the parties desire to reconvene for a settlement conference with Magistrate Judge
Gina L. Simms, who conducted the earlier settlement conference.
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DATED this 5th day of October, 2018.
BY THE COURT:
___________/s/_______________________
James K. Bredar
Chief Judge
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