Kaylor et al v. Arrisueno et al
Filing
91
MEMORANDUM OPINION. Signed by District Judge Brendan Abell Hurson on 5/8/2024. (bw5s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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APRYL KAYLOR ET AL.,
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Plaintiffs,
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v.
Civil No. 21-01164-BAH
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JUAN A. ARRISUENO, M.D. ET AL.,
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Defendants.
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MEMORANDUM OPINION
This is a medical malpractice case arising out of Plaintiff Apryl Kaylor's onset of
necrotizing fasciitis of the left arm and the alleged negligence of medical professionals at the
UPMC Western Maryland Corporation (the "UPMC Hospital"), whose medical decisions
allegedly resulted in a delay in Ms. Kaylor receiving the correct diagnosis and required surgical
intervention. 1 ECF 1, at 5-8
,r,r 10-17.
Ms. Kaylor and her spouse, Stephen Kaylor, brought suit
against numerous medical professionals at the UPMC Hospital and the UPMC Hospital itself,
alleging Defendants' negligent failure to diagnose Ms. Kaylor's necrotizing fasciitis caused her.
permanent disability and loss of consortium2 to Mr. Kaylor. Id. at 4, 17.
1
Jurisdiction is proper based upon diversity of citizenship. 28 U.S.C. § 1332(a). Plaintiffs are
citizens of West Virginia, and all Defendants are citizens of Maryland. See ECF 1, at 3 ,r,r 1-2.
Additionally, Plaintiffs have alleged the amount in controversy exceeds $75,000. Id. at 16 ,r 37. •
2
"[L]oss of consortium ... means the 'loss of society, affection, assistance and conjugal
fellowship. Ii includes the loss or impairment of sexual relations." Owens-Illinois, Inc. v. Cook,
872 A.2d 969,980 (Md. 2005) (quoting Deems v. W. Md. Ry. Co., 231 A.2d 514,517 (Md. 1967)).
"A loss of consortium claim is derivative of the injured spouse's claim for personal injury." Id.
(citation omitted). While Plaintiffs did not use the term loss of consortium in the complaint, it is
clear this is the claim Plaintiffs assert. See ECF 1, at 17-18 ,r,r 1-4 (alleging in Count II that
Defendants include Juan A. Arrisueno, M.D. ("Dr. Arrisueno"), Robert Daniel Flint, Jr.,
M.D. ("Dr. Flint"), Pete Allen Kuhn, NP-C ("Mr. Kuhn"), Ravi Teja Pilla, M.D. ("Dr. Pilla"),
Diana L. Pepe, CRNP ("Ms. Pepe"), Christine Sensabaugh, M.D. ("Dr. Sensabaugh"), Rameet
Thapa, M.D. ("Dr. Thapa"), Richard 0. Addo, M.D. ("Dr. Addo"), Mohammed Zulfequar Ali,
M.D. ("Dr. Ali"), and the UPMC Hospital.· ECF 1, at I.
All the above Defendants, except Dr. Arrisueno, Dr. Thapa, and the UPMC Hospital,
brought the present motion for summary judgment. ECF 86; ECF 89-1, at 6 n.1. For simpli~ity, I
will refer to the movant Defendants of ECF 86 (Drs. Flint, Pilla, Sensabaugh, Ali, and Mr. Kuhn
and Ms. Pepe) as "Movants." Pending before the Court is Movants' Motion for Summary
Judgment (the "Motion"). ECF 86. Plaintiffs filed an opposition, ECF 89, and Movants filed a
reply, ECF 90. All filings include memoranda oflaw and exhibits. 3 I have reviewed all relevant
filings and find that no hearing is necessary. See Loe. R. 105.6 (D. Md. 2023). For the reasons
stated below, Movants' Motion is DENIED.
I.
BACKGROUND
Necrotizing fasciitis is a deep soft tissue infection, ECF 86-1, at 5, that is "a Class I'
emergency," which, as defined by one of Plaintiffs' experts, is an emergency in which "life and
limb are at stake." ECF 89-30 (Dr. Freed deposition), at 3, 75: 10-12. Its fast progression requires
surgical intervention and "[t]he earlier you operate the less tissue there is lost and the more likely
it is that the patient will return to full function in the future." Id. at 4, 86:5-8; ECF 89-29 (Dr.
Freed declaration)
,r 9; ECF 86-1, at 5 (conceding as such).
Ms. Kaylor's expert witnesses will
Defendants' negligence and the resulting pain Ms. Kaylor experiences has caused "interrupt[ions]"
and "damage[]" to "their marriage and marital relationship," and has damaged Ms. Kaylor's
"ability to function as a normal wife").
3
I refer to all ·filings by their respective ECF numbers and page numbers by the ECF-generated
page numbers at the top of the page.
2
opine that the standard of care for this condition requires a medical professional, upon a reasonabie
suspicion of the condition, to order urgent imaging and an emergency surgical consultation. See,
e.g., ECF 89-26 (Dr. Takhar deposition), at 3, 84:7-13. The experts will opine that a reasonably
prudent medical professional would have had a "high suspicion for [necrotizing fasciitis ]" based
on Ms. Kaylor's clinical and laboratory presentation and that a reasonably prudent medical
profes~ional would have acted qui(?klY to assess and diagnose the condition. See, e.g., ECF 89-25
(Dr. Alan Van Opstal deposition), at 3, 73:17-21; ECF 89-27 (Dr. Itskowitz deposition), at 12,
126:9-12.
As the timeline of Ms. Kaylor's necrotic infection is important to Movants' causation
arguments, I will briefly summarize the four days of treatment Ms. Kaylor received at UPMC
Hospital, followed by Ms. Kaylor's eventual surgical treatment at a different hospital on the fifth
day.
A.
April 7, 2020: Ms. Kaylor is admitted to the emergency room displaying signs of
necrotizing fasciitis.
On April 7, 2020, at 10:57 a.m., Ms. Kaylor presented to UPMC Hospital with complaints
of left-hand swelling, pain, and an inability to move her fingers. ECF 1, at 8 ,r 18. Ms. Kaylor
indicated that she had begun experiencing these symptoms for three days prior to visiting the
emergency room and that her symptoms had progressively worsened. ·Jd, Ms. Kaylor's expert
witness, Dr. Jeffrey Freed, will opine that that Ms. Kaylor "had necrotizing fasciitis at the time she
presented to [UPMC Hospital]," ECF 89-29
,r 8, and that she should have received surgery on or
about the 7th, or immediately thereafter, ECF 89-30, at 5, 97:14-98:14.
Ms. Kaylor was first examined by Mr. Kuhn, a registered nurse practitioner and expert in
emergency medicine. ECF 1, at 8 ,r 18; ECF 86-2, at 1 (Mr. Kuhn notes). Mr. Kuhn noted "red
streaking up the volar aspect [or palm side] of[Ms. Kaylor's] left arm extending to the elbow," as
3
well as "redness," "swelling of [her] left hand" and the appearance of"bullae [or blisters] to the
left hand," ECF 86-2, at 1-2.4 Mr. Kuhn also observed "lymphangitis that extend[ed] from the
hand up to the elbow," and decreased movement with normal sensation of the fingers. 5 Id. Mr.
Kuhn documented that Dr. Flint, an expert in emergency medicine, "contacted the hospitalist and
discussed [Ms. Kaylor] with him." Id. Dr. Flint also examined Ms. Kaylor, ECF 89-6 (Dr. Flint
notes), and ordered "appropriate diagnostic testing.'.' ECF. 86-2, at 4. Ms. Kaylor's "Final
[Emergency Department] Diagnosis" was: "Fever[,] Leukocytosis[,] Left hand vasculitis[, and]
Left hand cellulitis." 6 Id. Ms. Kaylor was admitted for further treatment. Id.
Plaintiffs allege that Ms. Kaylor's clinical presentation was "consistent with necrotizing
fasciitis, which should have been included on a differential diagnosis and pursued." 7 ECF 1, at 9
4
See Bullae, MedlinePlus, https://medlineplus.gov/ency/article/003239.htm (last visited Apr. 19,
2024) ("Bullae are large blisters on the skin that are filled with clear fluid."); Volar, MerriamWebster's Online Dictionary, https://www.merriam-webster.com/dictionary/volar (last visited
Apr. 19, 2024) (defining volar as "relating to the palm of the hand[.]").
5
Lymphangitis, Cleveland Clinic, https://my.clevelandclinic.org/health/diseases/252341ymphangitis (last visited Apr. 19, 2024) ("Lymphangitis is inflammation of [the] lymph vessels.
Lymph vessels ... transport lymphatic fluid away from tissues and deliver it back into your
bloodstream.").
6
"Leukocytosis means you have a high white blood cell count." High White Blood Count,
Cleveland Clinic, https://my.clevelandclinic.org/health/diseases/17704-high-white-blood-cellcount (last visited Apr. 19, 2024). "Vasculitis involves inflammation of the blood vessels."
Vasculitis, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/vasculitis/symptomscauses/syc-20363435 (last visited Apr. 19, 2024). Cellulitis is a "bacterial skin infection."
Cellulitis, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/cellulitis/symptomscauses/syc~20370762 (last visited Apr. 19, 2024).
7A
differential diagnosis is "a list of conditions that share the same symptoms [that] help make a
final
diagnosis."
Differential
Diagnosis,
Cleveland
Clinic,
https ://my .clevelandclinic.org/health/diagnostics/223 27-differential-diagnosis (last visited Apr.
19, 2024).
•
4
119. However, neither Dr. Flint nor Mr. Kuhn obtained a STAT8 surgical consultation, a STAT
CT9 or an MRI scan. 10 Id.; see also ECF 86-2, at 1-4; ECF 89-6, at 2. Dr. Alan Van Opstal will.
opine that Dr. Flint and Mr. Kuhn breached the applicable standard of care in this manner. ECF
89-25, at 5, 95:9-15; see also ECF 89-26, at 3-4, 84:4-97:17 (opining that Mr. Kuhn and Dr. Flint
breached the standard of care in the same manner).
At 2:05 p.m. on April 7, 2020, after Ms. Kaylor was moved to a different unit, she was
examined by Dr. Pilla, an expert in hospital medicine. ECF 1, at 9120; ECF 89-7 (Dr. Pilla notes).
Dr. Pilla noted Ms. Kaylor's past medical history, her laboratory results, and her clinical condition
in the emergency department before opining that Ms. Kaylor was "[s]ep[tic] [with] no clear source
of infection." ECF 89-7, at 2, 5. Dr. Pilla suspected that her "leukocytosis ... could be reactive
secondary to a [venous thromboembolism]." Id. at 5. Dr. Pilla indicated her condition was "very
concerning for DVT" so he placed her on "Lovenox for therapeutic anticoagulation." 11 Id. Dr.
Pilla ordered an "upper extremity duplex, [which was] negative," and a "chest X-ray." Id. Dr.
Pilla planned to "have [Ms. Kaylor] on broad-spectrum antibiotics," "[c]ontinue IV fluids," and
8
"A STAT order is an order to be done immediately." Adventist Healthcare, Inc. v. Matti11gly,
223 A.3d 1025, 1029 n.5 (Md. App. 2020) .
9
•
'"CT' is the abbreviation for a computed tomography, which is 'imaging anatomic information
from a cross-sectional plane of the body, each image generated by a computer synthesis ofx-ray
tr;msmission data obtained in many different directions in a given plane."' Rodriguez v. Clarke,
926 A.2d 736, 738 n.2 (Md. 2007) (quoting Stedman's Medical Dictionary 468, 1996 (28th ed.
2006)).
10
"An MRI is magnetic resonance imaging[.]" Copsey v. Park, 160 A.3d 623, n.3 (Md. 2017)
(noting "these procedures use a magnetic field, radio waves and a computer to create detailed
images ... to distinguish normal, healthy tissue from diseased tissue" (citation omitted)).
11
"DVT" is an abbreviation for deep vein thrombosis. Deep vein thrombosis (DVT), May Clinic,
https://www.mayoclinic.org/diseases-conditions/deep-vein-thrombosis/diagnosis-treatment/drc20352563 (last visited Apr. 19, 2024).
•
5
"avoid [radiographic] contrast until further improvement in [Ms. Kaylor's] kidney function." Id.
D~. Pilla's notes do not indicate that he suspected necrotizing fasciitis. Id Further, Dr. ·Pilla's
notes indicate he did not order CT imaging of Ms. Kaylor's arm, or a surgical consultation. See
id
Plaintiffs allege that Dr. Pilla breached the applicable standard of care by failing to
evaluate, assess, diagnose, and treat Ms. Kaylor for necrotizing fasciitis when she presented with
signs and symptoms ofthis illness. ECF I, at 5 1 I 0, 10 122. Plaintiffs' .expert Dr. Itskowitz will
opine that Dr. Pilla breached the standard of care in this manner. ECF 89-27, at 5, 77: 14-78:1.
B.
April 8, 2020: Ms. Kaylor's symptoms worsen and a CT scan is ordered, though
not on a STAT basis.
On April 8, 2020, Ms. Kaylor was examined by Dr. Sensabaugh, an expert in hospital
medicine. •ECF 1, at 10 1 23; ECF 89-8 (Dr. Sensabaugh dictation). Dr. Sensabaugh concluded
that Ms. Kaylor was suffering from "[s]epsis secondary to cellulitis." ECF 89-8, at 3. Dr.
Sensabaugh requested "consult[ations] with infectious disease as well as plastics." Id
Dr.
Sensabaugh indicated Ms. Kaylor "may benefit at least from a CT, but ... [that Dr. Sen~abaugh]
w[ould] discuss with Infectious.Disease and plastics first." Id Pursuant to Dr. Sensabaugh's
consultation request, during the afternoon of April 8, 2020, Ms. Kaylor was examined by Dr.
Thapa, an expert in infectious disease medicine. ECF 1, at 10-11
1 24. Plaintiffs allege Dr.
Sensabaugh "negligently failed to request a STAT surgical consultation, negligently failed to order
a STAT CT while waiting for surgery to arrive, and negligently failed to rule in or rule out the
necrotizing fasciitis from which [Ms. Kaylor] suffered." ECF I, at 10 1 23.
Dr. Thapa observed Ms. Kaylor's worsening symptoms which included "constant, severe
pain and redness of her entire upper extremity which was exacerbated by movement." Id at 11 1
24. Dr. Thapa noted "prominent blister fofll)ation and erythematous patches on [Ms. Kaylor's]
6
left hand." Id. Finally, he noted that Ms. Kaylor continued to be febrile, tachycardic, tachypneic,
and hypotensive despite the administration of antibiotics. 12 Id. Dr. Thapa o~ined that Ms. Kaylor
had "sepsis secondary to left upper extremity cellulitis," and planned to continue the antibiotic
coverage. Id. Additionally, Dr. Thapa was the first medical professional to consider the possibility
that Ms. Kaylor's condition could be necrotizing fasciitis and recommended a CT scan. Id. Ms.
Kaylor alleges Dr. Thapa negligently failed to recommend that imaging study on a STAT basis
and failed to recommend a STAT surgical consultation. 13 Id.
After Dr. Thapa's con~ultation, at approximately 3:30 p.m.; Dr. Sensabaugh ordered a CT
scan of Ms. Kaylor's left forearm. Id. 1 25. Dr. Sensabaugh allegedly failed, however, to order
the CT scan on a STAT basis and failed to obtain a STAT surgical consultation. 14 Id. By the end
of Ms. Kaylor's second day of hospitalization, she had not yet received a CT scan or surgical
consultation. See ECF 1 at 10123. Dr- Itskowitz will opine that Dr. Sensabaugh breached the
standard of care in this manner. See ECF 89-27, at 7-9, 97:5-102: 15 (opining that "[i]t was [Dr.
Sensabaugh's] responsibility to get a surgeon to the bedside to see this patient on the 8th and to
take this patient emergently to the operating room" and "prior to leaving at 7 p.m. on the 8th, Dr.
12
''Tachycardia is a heart rate that's faster than normal[.]" Tachycardia, Cleveland Clinic,
https://my.clevelandclinic.org/health/diseases/22108-tachycardia (last visited Apr. 19, 2024).
"Tachypnea is
quick,
shallow
breathing."
Tachypnea,
Cleveland
Clinic,
. https://my.clevelandclinic.org/health/symptoms/24124-tachypnea (last visited Apr. 19, 2024).
13
Dr. Thapa is not a Movant, ECF 86, and his alleged negligence is not subject to this Motion, but
Plaintiffs' allegations against Dr. Thapa are included here for narrative clarity.
14
It also appears from the record that Ms. Kaylor did not receive a plastic surgery consultation
because there were no on-call plastic surgeons from April 8, 2020, through April 14,.2020. See
ECF 89-11, at 2.
7
Sensabaugh was required to make sure that the CT scan was done, and t~at the surgeon had
evaluated the patient").
C.
April 9, 2020: Ms. Kaylor's pain worsens, an urgent CT scan is ordered, a nonurgent' surgical consultation is performed, and no medical professional
diagnoses her illness.
Ou April 9, 2020, at 12:47 a.m., Dr. Ali, an expert in infectious disease, saw Ms. Kaylor
due to her acute worsening left arm pain despite the administration of narcotic pain medicine. ECF
1, at 11-12 il 26; ECF 89-13 (Dr. Ali notes). Dr. Ali noted "areas ofinduration in large patches,"
as well as "bullous areas on her wrist." 15 ECF 89-13, at 2. Dr. Ali noted a "palpable [pulse] in the
radial artery" without "signs of compartment syndrome" 16 and indicated that he could not rule out
"NF." 17 Id.. As such, Dr. Ali ordered urgent CT imaging, id.; however, Ms. Kaylor alleges that
Dr. Ali negligently failed to order a surgical consultation on a STAT basis. ECF 1, at 11-12 ,r 26;
see also ECF 89-13, at 2 (noting Ms. Kaylor "will need surgery consult for fasci[o]tomy or
debridement"). Plaintiffs' expert Dr. Elizabeth Van Opstal will opine that Dr. _Ali breached the
standard of care in this manner. See ECF 89-28 (Dr. Elizabeth Van Opstal deposition), at 7-9,
85:3-90:7.
At 2:50 a.m., Ms. Kaylor received a CT scan of her left arm with contrast. ECF 1, at 1112 ,r 26. It was not dictated by a radiologist until approximately 8:00 a.m. See ECF 89-28, at 8,
87:13-88:2. The imaging revealed "subfascial fluid surrounding the muscles from the distal mid-
15
"Skin induration is a deep thickening of the skin[.]" Sherry Christiansen, Induration Skin
Hardening
Signs
and
Causes,
Verywellhealth
(Sept.
8,
2023),
https://www.verywellhealth.com/induration-skin-5111867.
16
"Compartment syndrome is a painful buildup of pressure around your muscles." Compartment
Syndrome, Cleveland Clinic, https://my.clevelandclinic.org/health/diseases/1531_5-compartmentsyndrome (last visited Apr. 19, 2024).
17
Neither party appears to contest that Dr. Ali was referring to necrotizing fasciitis when using the
abbreviation "NF." See ECF 1, at 11 ,r 26; ECF 86-1, at 2-3.
8
humerus, subcutaneous edema, enlarged lymph nodes, intact vascular structures, without evidence
of DVT or formed abscesses," which Plaintiffs allege is consistent with necrotizing fasciitis. 18
ECF 1, at 11-12126. Plaintiffs allege the CT scan imaging should have alerted the Defendants
of Ms. Kaylor's need for emergency surgical intervention. 19 Id.; see also ECF 89-27, at 6, 79:14-16 (opining that "the presence of fluid inflammation in the muscle layer would be concerning for
a necrotizing soft tissue infection").
, Nearly twelve hours later, at 2:23 p.m., Ms. Kaylor was seen by Dr. Arrisueno, an expert
in general surgery. ECF I, at 12-13127; ECF 89-16 (Dr. Arrisueno's surgery consultation report).
Dr. Arrisueno noted that Ms. Kaylor was displaying "increase[d] swelling and blisters on [her] left
hand," and he observed "[e]dema, redness, .and bullae to'the left hand" as well as "[m]ultiple dry
skin lesions." ECF 89-16, at 2. Plaintiffs allege Dr. Arrisueno negligently failed to diagnose Ms.
Kaylor with necrotizing fasciitis, though her "clinical signs, laboratory results, and CT scan·
results" were consistent with that diagnosis. ECF I, at 11-12127. Dr. Arrisueno concluded that
Ms. Kaylor was suffering from "[b ]ilateral skin dermatitis progressing to cellulitis of [her] left
· hand."20 ECF 89-16, at 3. Dr. Arrisueno "[unroofed] two blisters" on Ms. Kaylor's hand, obtained
culture_s and ordered the application of Silvadene cream. Id.. Plaintiffs allege this treatment was
insufficient to treat Ms. Kaylor's necrotizing fasciitis. ECF 1, at 12-13 127.
18
"Edema is swelling caused by fluid trapped in your body's tissues[.]" Edema, Cleveland Clinic,
https://my.clevelandclinic.org/health/diseases/12564-edema (last visited Apr. 19, 2024).
19
A CT cannot confirm a diagnosis of necrotizing fasciitis, but in some instances, it can rule the
condition out. ECF 89-27, at 10, 110:6-8. Only surgical exploration in the operating rpom can
definitively establish necrotizing fasciitis. Id.
20
"Dermatitis is a general term for conditions that cause inflammation of the skin." Dermatitis,
Cleveland Clinic, https://my.clevelandclinic.org/health/diseases/4089-dermatitis (last visited Apr.
19, 2024).
9
Additionally, Ms. Kaylor alleges Dr. Arrisueno was negligent for failing to diagnose her
true condition, failing to immediately take her to the operating room for STAT surgical
intervention, failing to examine her on the morning of April 8, 2020, despite being informed of her
condition by Dr. Sensabaugh, and for failing to return and re-examine her condition after
misdiagnosing her. 21 /cl;
Subsequently, at 11: 11 p.m. on April 9, 2020, Ms. Kaylor was examined by Ms. Pepe, "an
expert certified registered nurse practitioner."22 Id at 9-10 ,i 21; ECF 89-17 (Ms. Pepe notes).
Ms. Pepe examined Ms. Kaylor due to her "complaints of pain progressing up her arm."· ECF 8917, at 2. Ms. Kaylor "complain[ed] of pain extending up her arm ... to [her] prox[imal] humerus"
and, upon examination, Ms. Pepe noted "significant erythema and edema that extend[ed] from the
prox[imal] humerus. to distal fingertips." 23 Id Ms. Kaylor's skin had an "almost cobblestone
appearance" and her fingers ,displayed "swelling, crusting, [and a] [v]ery limited [range of
motion]." Id.
Ms. Pepe concluded Ms. Kaylor suffered from cellulitis of the left arm and
secondary sepsis. 24 Id. at 3. Ms. Pepe's plan was to continue antibiotic therapy, with pain
21
Dr. Arrisueno is not a Movant, ECF 86, and his alleged negligence is not subject to this Motion,
but Plaintiffs' allegations against Dr. Arrisueno are included here for narrative clarity.
22
In Plaintiffs' complaint, Plaintiffs appear to have mistakenly asserted that Ms. Pepe evaluajed
Ms. Kaylor on April 7th or 8th, see ECF 1, at 9 ,i 21; ECF 86-1, at 3 n.l. However, the parties
agree Ms. Pepe evaluated Ms. Kaylor on April 9, 2020. ECF 86-1, at 3 n.1; ECF 89-1, at 9-10
(citing ECF 89-17).
23
The humerus is "the only bone in your upper arm." Humerus Fracture, Cleveland Clinic,
https://my.clevelandclinic.org/health/diseases/22990-humerus-fracture (last visited Apr. 19,
2024). "The proximal end of your humerus is the top." Id.
24
Sepsis is the "body's extreme reaction to an infection" in which· the "immune system stops
. fighting the infection and starts damaging ... normal tissues and organs." Sepsis, Cleveland
Clinic, https://my.clevelandclinic.org/health/diseases/12361-sepsis (last visited Apr. 19, 2024).
management and elevation of the arm with continued monitoring. Id. Plaintiffs' expert Dr.
Itskowitz will opine that Ms. Pepe breached the standard of care by "not ensur[ing] that [Ms.
Kaylor] was evaluated by the surgeon for necrotizing fasciitis" when the condition "would have
been in her differential." ECF 89-27, at 11, 118:11-119:18.
In sum, by the end of Ms. Kaylor's third day of hospitalization she had received both a CT
scan and a surgical consultation; however, no medical professional had diagnosed her condition.
D.
April 10, 2020: Ms. Kaylor remains undiagnosed.
On April 10, 2020, at 9:41 a.m., Dr. Addo, an expert in hospital medicine, saw Ms. Kaylor.
ECF 1, at 13
,r 28; ECF 89-18 (Dr. Addo notes).
Dr. Addo noted both Ms. Kaylor's "[l]eft upper
extremity as well as [her] bilateral lower extremities [were] diffusely swollen with 3+ pitting
edema." ECF 89-18, at 3. Dr. Addo's assessment included cellulitis of the arm, anemia, lower
extremity edema, hyponatremia, hypokalemia, acute kidney injury, and insomnia. 25 Id. at 5.
Plaintiffs allege that Dr. Addo negligently failed to diagnose Ms. Kaylor's necrotizing fasciitis
despite her "overwhelming and progressing" symptoms of the condition and her continued sepsis
despite antibiotic administration. ECF I, at 13
,r 28.
Plaintiffs allege Dr. Addo sh~mld have
ordered a STAT surgery consultation to reevaluate her condition. 26 Id. Plaintiffs' expert Dr.
Itskowitz will opine that Dr. Addo breached the standard of care in this manner. See ECF 89-27,
25
Hyponatremia and hypokalemia refer to low sodium and potassium levels in the blood,
respectively. • See Hyponatremia, Mayo Clinic, https://www.mayoclinic.org/diseasesconditioris/hyponatremia/symptoms-causes/syc-20373711 (last visited Apr. 19, 2024)
("Hyponatremia occurs when the concentration of sodium in your blood is abnormally low.");
Hypokalemia, Cleveland Clinic, • https://my.clevelandclinic.org/health/diseases/17740-lowpotassium-levels-in-your-blood-hypokalemia (last visited Apr. 19, 2024).
26
Additionally, Dr. Addo's notes indicate Ms. Kaylor was "unhappy with the care she [was]
receiving" and "requested to be transferred to Morgantown." ECF 89-18, at 5. However, Dr.
Addo noted that "after talking to her and in view of the overall covid 19 situation, she has agreed
to receive further treatment here." Id.
11
at 12, 126:9-129:8 ("Dr. Addo on the 10th and the I Ith was required to pursue a stat surgical
consultation. The patient was not only not getting better, but this patient was getting worse.");
ECF 89-28, at 9, 11-12, 110:14-114:11.
April 10, 2020, is an important date in the c~se, as Plaintiffs' expert Dr. Freed is expected
to opine that had Ms. Kaylor received surgical intervention at any point between her admission on
April 7, 2020, through the morning of April 10, 2020, Ms. Kaylor "more likely than' not would
have returned to reasonable function and been able to perform her activities without permanent
disability." ECF 89-29, at 4111; see also infra Section III.A.I (discussing Dr. Freed's testimony
in more depth). After the morning of April I 0, 2020, Dr. Freed will opine that "as the I 0th went
on and into the 11th, certainly there was enough tissue loss to cause a permanent deficit." ECF
89-30, at 4, 87:12-14.
E.
April 11, 2020: Ms. Kaylor leaves UPMC Hospital against medical advice and
goes to a different medical center, where she is diagnosed with necrotizing
fasciitis and receives surgical intervention.
On April 11, 2020, Ms. Kaylor's symptoms continued to worsen, and Ms. Kaylor decided
to leave the UPMC Hospital and drive to the emergency department of a different tertiary care
center, the West Virginia University Hospitals and University Health Associates ("WVU
Hospital"). ECF I, at '13-14
1 30; ECF 89-21 (Operative Report from WVU Hospital); 89-22
(Discharge Summary from WVU Hospital). As the WVU Hospital summarized, upon arrival,
"Plastic Surgery performed a bedside debridement with cultures remaining negative." ECF 8922, at 2; see also ECF 89-20 (WVU H;ospital surgeon notes). WVU Hospital medical professionals
ordered a "CT [of Ms. Kaylor's] bilateral upper extremities [which] showed diffuse soft tissue
edema and swelling of the left upper extremity without loculated, drainable collection or soft tissue
air." ECF 89-22, at 2. Ms. Kaylor "was urgently taken to the operating theatre for fasciotomies
of the dorsal hand, dorsal forearm, volar forearm with carpal tunnel release, washout and packing
12
to the wound." Id. Ms. Kaylor remained in the hospital until April 17, 2020. Id.; ECF 1, at 14 1
31.
Ms. Kaylor· alleges that following her discharge, she received home health services to
manage her IV antibiotic therapy until April 25, 2020. ECF 1, at 14 131. Ms. Kaylor was left
with "minimal use of her left hand and arm due to extensive muscle loss, significant scarring, and
chronic pain." Id. 132. As a result of her disability, she can no longer work or drive a car, and she
requires assistance for basic activities. Id.; see also ECF 89-31 (Plaintiffs' Expert, Dr. Michael
April notes), at 2--4 (opining on damages); ECF 89-24 (Plaintiffs' preliminary Rule 26(a)(2)
disclosure), at 20-21.
II.
LEGALSTANDARD
Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted
"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). The relevant inquiry is "whether
the evidence presents a sufficient disagreement to require submission to a [trier of fact] or whether
it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 (1986).
•"Once a motion for summary judgment is properly made and supported, the opposing party
has the burden of showing that a genuine factual dispute exists." Progressive Am. Ins. Co. v. Jireh
House, Inc., 603 F. Supp. 3a 369,373 (E.D. Va. 2022) (citing Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 585-86 (1986)). "A dispute is genuine if 'a reasonable jury could
return a verdict for the nonmoving party."' Libertarian Party of Va. v. Judd, 718 F.3d 308, 313
(4th Cir. 2013) (quoting Dulaney v. Packaging Corp. ofAm., 673 F.3d 323,330 (4th Cir. 2012)).
"A fact is material ifit 'might affect the outcome of the suit under the governing law."' Id. (quoting
Anderson, 477 U.S. at 248). Accordingly, "the mere existence of some alleged factual dispute .
13
between the parties will not defeat an otherwise properly supported motion for summary
judgment." Anderson, 477 U.S. at247--48(emphasis in original).
The Court must view the evidence in the light most favorable to the nonmoving party and
draw all reasonable inferences in that party's favor, Tolan v. Cotton, 572 U.S. 650,657 (2014) (per
curiarn); Scott v. Harris, 550 U.S. 372, 378 (2007), and the Court "may not make credibility
determinations or weigh the evidence," Progressive-Am. Ins. Co., 603 F. Supp. 3d at 373 (citing Holland v. Wash Homes, Inc., 487 F.3d 208, 213 (4th Cir. 2007)). For this reason, summary
· judgment ordinarily is inappropriate when there is conflicting evidence because it is the function
of the factfinder to resolve factual disputes, including matters of witness credibility. See Black &
Decker Corp. v. United States, 436 F.3d 431, 442 (4th Cir. 2006); Dennis v. Columbia Colleton
Med. Ctr., Inc., 290 F.3d 639, 644--45 (4th Cir. 2002).
At the same time, the Court must"prevent factually unsupported claims and defenses from
proceeding to trial." Bouchat v. Bait. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir.
2003) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 2003)). "The existence ofa mere
scintilla of evidence in support of the nonmoving party as well as conclusory allegations or denials,
without more, are insufficient to withstand a summary judgment motion." Progressive Am. Ins.
Co., 603 F. Supp. 3d at 373 (citing Tom v. Hosp. Ventures LLC, 980 F.3d 1027, 1037 (4th Cir.
2020)).
III.
ANALYSIS
A medical malpractice tort is essentially the same as a "traditional negligence claim." Am.
Radiology Servs. v. Reiss, 236 A.3d 518, 531 (Md. 2020); Armacost v. Davis, 200 A.3d 859, 872
(Md. 2019) (citations and quotation marks omitted). Thus, "the general principles which ordinarily
govern in negligence cases also apply in medical malpractice claims." Reiss; 236 A.3d at 531
14
(quoting Armacost, 200 A.3d at 872). Accordingly, in Maryland, 27 "[t]o prevail in a medical
malpractice negligence action, a plaintiff must prove four elements: '(1) the defendant's duty based
on an applicable.standard of care, {2) a breach of that duty, (3) that the _breach c<1used the injury
claimed, and (4) damages."'. 28 Frankel v. Deane, 281 A.3d 692, 703 (Md. 2022) (quoting Reiss,
236 A.3d at 531); see also Reiss, 236 A.3d at 521 (noting the longstanding principle that "all
. persons are presumed to have duly performed any duty imposed on them" and therefore
'"negligence cannot be presumed, but must be affirmatively proved" (quoting State ex rel. Janney
v. Housekeeper, 16 A. 382,384 (Md. 1889))). At this stage, Movants challenge only the element
of causation. See ECF 86-1, at 14.
To establish the element of causation in a medical malpractice case, plaintiffs generally
must present expert testimony. Reiss, 236 A.3d at 532; Adventist Healthcare, Inc. v. Mattingly,
27
A federal court sitting in diversity applies the substantive law of the state in which it sits. Megaro
v. McCullum, 66 F.4th 151, 159 n.4 (4th Cir. 2023) (citing Volvo Const. Equip. N. Ain., Inc. v.
CLM Equip. Co., Inc., 386 F.3d 581, 599--600 (4th Cir. 2004)). Accordingly, the Court applies
Maryland's substantive law in considering the present motion.
28
While 'Maryland law "sets out the substantive elements of medical malpractice cases arising
through diversity jurisdiction, 'whether there is sufficient evidence to create a jury issue' regarding
the element of causation 'is controlled by federal rules."' Riggins v. SSC Yanceyville Operating
Co., LLC, 800 F. App'x 151, 155 (4th Cir. 2020) (quoting Fitzgerald v. Manning, 679 F.2d 341,
346 (4th Cir. 1982)); see also Jordan v. Iverson Mall Ltd P'ship, No. GJH-14~37, 2018 WL
2391999, at *5-7 (D. Md. May 25, 2018) ("[T]here is no requirement that an expert use any 'magic·
words' for their opinion to be admissible. However, the expert's. testimony taken as a whole must
still demonstrate that the expert is confident in his or her opinion to a reasonable degree of
certainty .... "). The parties appear to either rely upon Maryland law for determining the
sufficiency of the expert testimony, or they appear to treat the standards as coextensive. See ECF
86, at 11-12 (citing Maryland caselaw for the proposition that expert testimony must be
"sufficiently definite and certain to be admissible" though also citing Rule 702 of the Federal Rules
of Evidence governing the admissibility of expert testimony); ECF 86-1, at 8 (using "medical
certainty" and "medical probability" interchangeably); ECF 89, at 23-27 (citing exclusively toMaryland cases in argument). In any event, as I explain below, Movants appear to concede the
admissibility of Dr. Freed's opinion that surgical intervention by the morning of April· 10, 2020,
more likely than not would have resulted in Ms. Kaylor recoyering without permanent disability.
See infra note 30.
,
15
223 A.3d 1025, 1038 (Md. App. 2020); Rodriguez v. Clarke, 926 A.2d 736, 755. (Md. 2007)
("Because the gravamen of a medical malpractice action is the defendant's use of suitable
professional skill, which is generally a topic calling for expert testimony, this Court has repeatedly
recognized that expert testimony is required to establish negligence and causation.") (internal
citations and quotation marks omitted)); Meda v. Brown, 569 A.2d 202, 206-07 (Md. 1990) ("[I]n
the ordin'ary medical malpractice case, because of the complexity of the subject matter, expert
testimony is required to establish negligence and causation."); see also Young v. United States,
667 F. Supp. 2d 554, 562 (D. Md. 2009) ("[T]he Court may find adequate evidence to create a
triable issue, of fact with respect to causation only if expert opinion evidence establishes to a
reasonable degree of medical certainty that defendant's negligence was more likely the cause of
plaintiff's injuries than any other cause."); Crinkley v. Holiday Inns, Inc., 844 F.2d 156, 164 n.2
(4th Cir. 1988) ("[E]xpert opinion is of course the prime-indeed usually the only-way to prove
medical causation."); Green v. Obsu, Civ. No. ELH-19-2068, 2022 WL 2971950, at *20-21 (D.
Md. July 27, 2022) (discussing general requirement of expert testimony in medical malpractice
actions in Maryland). In other words, a jury cannot make inferences 'based only on res ipsa
loquitor-there must be some 'expert testimony supporting the inference that the medical
negligence caused an injury. See Frankel, 281 A.3d at 710 (citing Meda, 569 A.2d at 203).
To establish causation, a plaintiff must prove a defendant's negligence is both a(!) causein-fact of the injury and (2) a legally cognizable cause. Pittway Corp. v. Collins, 973 A.2d 771,
786 (Md. 2009); Copsey v. Park, 160 A.3d 623, 636 (Md. 2017); Young, 667 F. Supp. 2d at 561
(citing Stickley v. Chisholm, 765 A.2d 662,668 (Md. App. 2001)); Pippin v. Potomac Elec. Power
Ca., 132 F. Supp. 2d 379, 392-93 (D. Md. 2001), aff'd sub nom. Pippin v. Reillylndits., Inc., 64
F. App'x 382 (4th Cir. 2003). "Cause-in-fact" concerns whether a defendant's negligent conduct
16
actually produced an injury. Pittway Corp., 973 A.2d at 786; Copsey, 160 A.3d at 636. "Legal
causation," in contrast, is "a policy-ori~nted doctrine designed to be a method for limiting liability
after cause-in-fact has been established." Pittway Corp., 973 A.2d at 786.
Movants argue that Plaintiffs have failed to demonstrate via expert testimony that each
Movant was a cause-in-fact of Ms. Kaylor's injuries. See ECF' 86-1, at 14-16 (applying the
"substantial factor" test, a test for determining causation-in-fact). "The causation-in-fact inquiry
asks 'whether defendant's conduct actually produced~ injury."' State v. Exxon Mobil Corp., 406
F. Supp. 3d 420,453 (D. Md. 2019) (quoting Pittway Corp., 973 A.2d at 786). "Maryland courts.
have developed two tests to determine whether the requisite causation exists: the 'but-for test' and
the 'substantial factor' test." Id. (quoting Pittway Corp., 973 A.2d at 786).
"Under the but-for test, the requisite causation exists when the injury would not have.
occurred but for the defendant's conduct." Id (quoting Pittway Corp., 973 A.2d at 786). This test
applies when there is only one tortfeasor or negligent act at issue. Id. (citing Pittway Corp., 973
A.2d at 786); Sindler v. Litman, 887 A.2d 97, 110 (Md. App. 2005) (noting the "but-for" test does
not resolve situations in which "two independent causes concur to bring about an injury, and either
cause' standing alone would have wrought the identical harm"); Yonce v. SmithKline Beecham
Clinical Lab'ys, Inc., 680 A.2d 569, 575-76 (Md. App. 1996).
When there are numerous alleged tortfeasors, Maryland courts apply the "substantial
factor" test to determine which tortfeasors were the cause-in-fact of a single injury. 29 Pittway
Corp., 973 A.2d at 787; Young, 667 F. Supp. 2d at 561;· Yonce, 680 A.2d at 576. "Under the
substantial factor test, the requisite causation may be found if it is 'more likely than not' that the
29
Importantly, numerous negligent actions may constitute the proximate cause of a harm. Young,
667 F. Supp. 2d at 561; At!. Mut. Ins. Co. v. Kenney, 591 A.2d 507, 512 (Md. 1991); Karns v.
Liquid Carbonic Corp., 338 A.2d 251,262 (Md. 1975).
17
defendant's conduct was a substantial factor in producing the plaintiffs injuries." Exxon Mobil
Corp., 406 F. Supp. 3d at 453 (quoting Copsey, 160 A.3d at 636); Pittway, 973 A.2d at 787.
In determining whether the requisite connection exists under the substantial factor test, the
following considerations are relevant:
(a) the number of other factors which contribute in producing the harm and the
extent of the effect which they have in producing it;
(b) whether the actor's conduct has created a force or series of forces which are in
continuous and active operation up to the time of the harm, or has created a situation
harmless unless acted upon by other forces of which the actor is not responsible;
(c) lapse of time.
Pittway, 973 A.2d at 787 (quoting Restatement (Second) of Torts § 433 (1965)); Exxon Mobile
Corp., 406 F. Supp. 3d at 453; Sindler, 887 A.2d at 110; Yonce, 680 A.2d at 576. "Regardless of
the test employed, the focus remai!)S on the fundamental and sometimes metaphysical inquiry into
the nexus between the defendant's negligent act and the resultant harm to the plaintiff." Yonce,
680 A.2d at 576.
A.
Movants' arguments do not persuade.
Movants argue that even if Drs. Pilla, Flint, and Sensabaugh, as well as Mr. Kuhn and Ms.
Pepe did breach the standard of care by failing to get a STAT CT and surgical consultation, that
these alleged breaches were remedied early enough in time to avoid Ms. Kay!or's permanent
injuries. 30 ECF 86-1, at 14. In other words, even if the STAT CT and surgical consultation should
30
It is less clear ifMovants are challenging the admissibility of Dr. Freed's testimony. On the one
hand, Movants provide the legal standard for the admissibility of expert testimony, ECF 86-1, at
11, and in setting out the factual background Movants note that Dr. Freed's level of certainty
concerning some medical opinions appeared to change mid-deposition, ECF 86-1, at 8. However,
in argument, Movants appear to concede the admissibility of Dr. Freed' s testimony for _purposes
of this motion, by relying on Dr. Freed's opinion that the morning of April 10, 2020, was the "line
in the sand" for when surgical intervention could have prevented Ms. Kaylor's permanent
disability. See ECF 86-1, 14-16; see also ECF 86-1, at 16 (arguing only generally that Plaintiffs'
18
have come sooner, Ms. Kaylor received both a CT and surgical consultation on April 9, 2020, a
day before the proverbial "line in the sand" Dr. Freed drew on the morning of April 10, 2020, as
the point ofno return for her permanent injuries. Id. at 15. Because all the alleged breaches were
rectified before permanent injuries set in, Movants argue that this proves their breaches were not
a cause-in-fact of Ms. Kaylor's injuries. Id.
This argument does not persuade for two reasons: (1) a reasonable jury could understand
Dr. Freed's testimony to indicate a sliding scale of harm, not a "line in the sand"; and (2) a
reasonable jury could conclude that the outcome of the CT and surgical consultation would have
been different had the Movants not breached their standard of care.
I.
A jury can construe Dr. Freed's testimony in at least two reasonable ways.
Dr. Freed called Ms. Kaylor's condition a "Class 1 emergency," which is cine where "life
and limb are at stake. It takes precedence in an operating room over everything else." ECF 8930, at 3, 75:10-14. In Dr. Freed's deposition, when asked whether earlier surgery would have
changed the o,utcome, he said:
So I can compare necrotizing fasciitis to cancer. Everybody knows that the earlier
you operate on can9er the more likely you are to cure the patient. The patient will
suffer Jess the earlier you operate. Necrotizing fasciitis is exactly the same. The
earlier you operate the less tissue there is lost and the more likely it is that the patient
will return to full function in the future. The longer the delay, the more tissue dies
experts' opinions are not specific enough as they do not refer to each Movant individually, not that
tl1e opinions lacked the requisite level of certainty). Given Movants' reliance on the admissibility
of such evidence in argument, I will treat the admissibility of Dr. Freed's testimony as undisputed
for purposes of the motion. See Fed. R. Civ. P 56(c)(2) (noting that "[a] party may object that the
material cited to support or dispute a fact cannot be presented in a form that would be admissible
in evidence"); Fed. R. Civ. P 56(e)(2) (noting when a party "fails to properly address another
party's assertion of fact as required by Rule 56(c), the court· may ... consider the fact undisputed
for purposes of the motion"). Thus, I will assume Dr. Freed's testimony that surgical intervention,
-by the morning of April 10, 2020, more likely than not would have staved off Ms. Kaylor's
permanent disability is admissible. See also infra Sections III.A. l, III.B (discussing permissible
inferences drawn therefrom and the role of Dr. Freed's testimony in Plaintiffs' prima facie medical
malpractice claim).
1'9
and the more tissue dies the more likely it is that we will have a permanent disability
from the infection. That's my opinion.
Id. at 4, 85:18-86:12. When asked whether the outcome would have been different had surgery
occurred on April 9, 2020, as opposed to April 11, 2020, Dr. Freed stated: "I think that if the
surgery had occurred on the 9th, more likely than not she would have returned to full function, had
another 48 hours not transpired before her compartments would be compressed and all the necrotic
0
ti~sue removed." Id., at 4, 86:13-22. In Dr. Freed's opinion, the surgery should have occurred
"[t]he very first time that they saw the blister, swollen; red, ascending infection," which was from
the moment Ms. Kaylor arrived in the emergency room and was examined. Id. at 5, 97:14--98_:14.
When asked whether surgery on the 10th or 11th would have made a difference in.Ms. Kaylor's
deficits Dr. Freed stated that "[p Jrobably as late as the morning of the 10th, she probably would
have recovered to complete function. But as the 10th went on and into the 11th, certainly there
was enough tissue loss to cause a permanent deficit." Id. at 4, 87:1-14.
Movants read Dr. Freed's testimony as tantamount to saying that Ms. Kaylor would have
no permanent injuries had she received surgical intervention on the morning of April 10th. ECF
89-1, at 15. However, Dr. Freed's comparisons of this disease to cancer, and his commonsense
statement that the "earlier you operate the less tissue there is lost and the more likely it is that the
patient will return to full function in the future" could lead,a reasonable jury to view this disease's
progression as a sliding scale of harm, one where time was of the essence. See ECF 89-30, at 4,
85:22-86:12. In such a case, every hour Ms. Kaylor was undiagnosed was another hour where a
necrotic infection was eating away at her tissue, ultimately requiring· a greater amount of tissue to
be surgically removed. See ECF 89-30, at 7,.110:10-12 (Dr. Freed stating "[t]he one thing is I
testified to several times today already is that time is of the essence"). Because a jury could
reasonably read Dr. Freed'.s testimony in this manner, the Court is obliged to view the evidence in
20
the light most favorable to the nonmoving party and draw all reasonable inferences in Plaintiffs'
favor. See Tolan, 572 U.S. at 657. As such, the Court cannot find that Movants' negligence was
harmless as a matter of law.
2.
A jury can draw different conclusions about whether Ms. Kaylor would be
less permanently impaired had she obtained an earlier CT scan and surgical
consultation.
Next, Movants argue that an earlier CT scan and surgical consultation would not have
changed Ms. Kaylo.r's outcome because Dr. Arrisueno would have-as they argue he did for
purposes of their motion-misdiagnosed Ms. Kaylor regardless of when he engaged in the
'
31
consultation. See ECF 86-1, at 14. Since Dr. Arrisueno was the surgical consultant and was
31
This argument borders on a related but separate argument of superseding causation. The fact
that a surgical consultation obtained on April 9, 2020, did not result in an emergency surgical
intervention is essentially an argument of supervening causation, because it points th~ finger at the
alleged negligence of Dr. Arrisueno, the surgical consultant. ECF 86-1, at 15. To the extent
Movants rely on this reasoning, such an analysis only comes after one determines that the
antecedent negligence was, in fact, a cause-in-fact of the injury. See Pittway Corp., 973 A.2d at
788 (noting that only after determining whether "multiple negligent acts· or omissions are [] a
cause-in-fact of a plaintiff's injuries" does a court assess the foreseeability analysis, which
"involve[s] an inquiry into whether a negligent defendant is rel!eved from liability by intervening
negligent acts or omissions"); Young, 667 F. Supp. 2d at 566. "[A] superseding cause arises
primarily when 'unusual' and 'extraordinary' independent intervening negligent acts occur that
could not have been anticipated by the original tortfeas01:.'' Pittway Corp., 973 A.2d at 789-90
(quoting McGowans v. Howard, 197 A.2d 915, 918 (Md. 1964)); Young, 667 F. Supp. 2d at 566.
Because Movants have not expressly alleged that Dr. Arrisueno's negligence was a superseding
cause, the Court need not delve into this alternate argument. See ECF 86.
Movants'. point is also somewhat undercut as to Dr. Pilla, Dr. Flint, and Mr. Kuhn, as
Plaintiffs point to an on-call schedule for the week of Ms. Kaylor's hospitalization, indicating that
Dr. Arrisueno would not have been the on-call surgeon on April 7, 2020. See ECF 89-33. This
would support the inference that if a reasonably prudent on-call surgeon would have been called,
Ms. Kaylor's illness would have been diagnosed by April 7, 2020. See id. (indicating Dr. Chisholm
was on call on April 7, 2020, and Dr. Arrisueno was on call April 8-12, 2020). Given that another
doctor was on call on April 7, 2020, a reasonable jury could conclude that Drs. Pilla and Flint, and
Mr. Kuhn, who each observed Ms. Kaylor on April 7, 2020, were a substantial factor in Ms.
Kaylor's permanent disability.
21
presumably in the best position to diagnose necrotizing fasciitis, 32 Movants essentially argue that
. his failure to properly-diagnose Ms. Kaylor made it such that Ms. Kaylor's outcome would have
remained the same regardless of whether Movants had met their duty of care. See id. While it is
possible a jury could be convinced of such, Plaintiffs offer enough evidence to suggest that Ms. •
Kaylor's outcome could have been different had the Movants not breached the standard of care.
Stated differently, what would have happened had Movants acted within the standard of care and
whether Ms. Kaylor would have been diagnosed sooner is a question of fact that cannot be
determined at this stage.
Specifically, Plaintiffs' experts testify that necrotizing fasciitis is a condition that can only
be diagnosed definitively in an operating room. ECF 89-27, at 10, 110:5-lJ Pla;ntiffs' experts
testify that the standard of care requires medical professiona;s with a reasonlble suspicion of the
!
disease to order a STAT CT and STAT surgical consultation. ECF 89-26,' at 3-4, 84:4-97:17
•
'
(regarding Mr. Kuhn and Dr. Flint); ECF 89-27, at 5-8, 77:17-102:15 (regarding Dr. Pilla and Dr. .
i
Sensabaugh); ECF 89-27, at 11-12, 119:3-126:12 (regarding Ms. Pepe); ECL 89-28, at 7, 85:389: 14 (regarding Dr. Ali); ECF 89-28, at 10, 106:20-111 J 4 (regarding Dr.1ddo).
A prerequisite to that, of course, is suspecting the disease when there is sufficient evidence
I
of the disease. Plaintiffs' experts indicate that as soon as the 7th, a reasonably prudent medical
professional should have been concerned for necrotizing fasciitis and acted to rule out the lifethreatening infection. See, e.g., ECF 89-26, at 3-4, 84:7-97: 17 (opining as to Mr. Kuhn and Dr.
" This p,-ptinn is mh&oo< h, ""J'Ort
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