Whitfield et al v. Southern Maryland Hospital, Inc. et al

Filing 60

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 3/7/14. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
HOLLEY F. WHITFIELD, et al.
:
v.

:

Civil Action No. DKC 12-2749

:
SOUTHERN MARYLAND HOSPITAL,
INC., et al.

:

MEMORANDUM OPINION
Presently

pending

and

ready

for

review

in

this

medical

malpractice case are four motions: (1) a motion in limine under
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), to
strike and exclude causation testimony by David H. Goldstein,
M.D.

filed

by

Defendants

Southern

Maryland

Hospital,

Inc.;

Weatherby Locums, Inc.; Edna Ruth Hill, M.D.; Gastrointestinal
Associates

of

Maryland,

P.A.;

and

Lornette

Mills,

M.D.

(“Defendants”) (ECF No. 49); (2) a motion for summary judgment
filed by Defendants (ECF No. 50); (3) a separate motion for
summary judgment filed by Defendant Weatherby Locums, Inc. (ECF
No.

44);

and

(4)

a

motion

filed

by

Defendants

to

withdraw

certain exhibits that contain personal identifying information
and replace those exhibits with redacted versions (ECF No. 56).
The issues have been fully briefed, and the court now rules, no
hearing being deemed necessary.
following

reasons,

the

motion

Local Rule 105.6.
to

exclude

Dr.

For the

Goldstein’s

testimony

will

be

denied.

judgment will be denied.

Defendants’

motion

for

summary

Defendant Weatherby Locums, Inc.’s

motion for summary judgment will be granted.

Defendants’ motion

to withdraw and replace certain exhibits will be granted.
I.

Factual Background1
A.

Pre-Complaint

On September 28, 2008, Plaintiff Holley Whitfield went to
the emergency department at Southern Maryland Hospital (“SMH”),
complaining of abdominal pain and vomiting blood.

Ms. Whitfield

was seen by Defendant Dr. Edna Ruth Hill – an employee of SMH
and

Weatherby

Locums2

-

who

noted

that

Ms.

Whitfield

characterized her abdominal pain as high as nine out of ten.
Dr. Hill noted that Plaintiff was suffering from nausea and
frequent bloody vomiting, had irregular lab results, and was on
birth control pills.

(ECF No. 1 ¶¶ 25-28).

Dr. Hill reviewed

an X-ray taken of Plaintiff and arrived at an initial diagnosis
of upper gastrointestinal bleeding.

Dr. Hill did not order a

computerized tomography scan (“CAT Scan”).

1

Unless otherwise noted,
construed in the light most
nonmoving party.
2

(Id. ¶¶ 31, 33).

the facts outlined here
favorable to Plaintiff,

are
the

Plaintiff states that “[u]pon information and belief,
Defendant Weatherby [Locums, Inc.] was contractually obligated
to provide emergency room physicians to staff Defendant SMH’s
emergency room.”
(ECF No. 1 ¶ 20).
Weatherby contests
Plaintiff’s assertion that Dr. Hill is its employee in the
motion for summary judgment.
2

Dr. Hill consulted with SMH hospitalist Shannon Asko, who was
aware of Plaintiff’s complaints of extreme pain.
Plaintiff was subsequently admitted to SMH in the early
morning

hours

of

September

Doctor Rasheed Abassi.

29,

2008,

29,

2008,

gastroenterologist

the

(Id. ¶¶ 34, 36-37).

aware of Plaintiff’s acute pain.
September

under

employed

by

Dr.

of

SMH

Dr. Abassi was

(Id. ¶ 38).

Defendant

care

At 1:15 P.M. on

Lornette

Gastrointestinal

Mills,

a

Associates

of

Maryland (“GAM”), first saw and treated Plaintiff.3

She noted

a differential diagnosis of “1. NSAID gastropathy/peptic ulcer
disease.

2.

malformation.

Mallory-Weiss

tear.

3.

4. Small bowel lesion.”

Ateriovenous

(Id. ¶ 41).

[sic]

That same

afternoon, Mills conducted an endoscopy on Plaintiff and noted
“upper gastrointestinal bleeding with the source likely beyond
the second portion of the duodenum.”
her

differential

diagnosis

to:

Arteriovenous malformation.

(Id. ¶ 42).

“1.

Meckel

She updated

diverticulum.

3. Small bowel lesion.”

2.

(Id.).

Mills recommended a Meckel scan which indicated “no abnormality
is seen to suggest a Meckel’s diverticulum.”
days

later,

computerized
chest

which

on

October

tomography
indicated

1,

2008,

angiography
a

small

3

(Id. ¶ 43).

Plaintiff

scan
left

(“CTA

underwent
Scan”)

pleural

on

Two
a
her

effusion.

Plaintiff alleges that GAM had an agreement with SMH to
provide gastrointestinal consultations for SMH.
(ECF No. 1 ¶
24).
3

Plaintiff’s

vital

statistics

were

continually

unstable, and she continued to lose blood.

irregular

(Id. ¶ 44).

and
SMH

Doctor George Okang was consulted, who determined that Plaintiff
was to be admitted to the intensive care unit because of her
persistently high heart rate.

(Id. ¶ 45).

On October 2, 2008, Dr. Okang ordered a CAT Scan due to
Plaintiff’s persistent abdomen pain.
case,

the

CAT

Scan

thrombosis (“SMVT”).

revealed

a

Most relevant for this
superior

mesenteric

vein

SMVT is a clot of the superior mesenteric

vein through which blood leaves the intestine.
untreated,

can

eventually

cause

administer

any

anticoagulation

death.

medicine.

SMVT, if left

Defendants
Plaintiffs

did

not

contend

that they did not act with any speed despite the seriousness of
Ms. Whitfield’s diagnosis.

(Id. ¶¶ 47-49).

Ms. Whitfield’s family was informed of her diagnosis and
requested a transfer to the Medical College of Virginia (“MCV”)
in Richmond, Virginia, a facility that was better equipped to
handle SMVT.

SMH refused to transfer her unless and until a

physician from an accepting hospital notified SMH that it would
accept Plaintiff.

Plaintiff’s family worked the phones until

they found a physician who arranged the transfer on October 3,
2008.

(Id. ¶¶ 50-53).
Upon arrival at MCV, Plaintiff was diagnosed with acute

mesenteric

ischemia,

or

internal
4

bleeding

of

the

mesenteric

vein.

Plaintiff underwent surgery which resulted in the removal

of seventeen inches of her small intestine after it had died
from lack of blood.

(Id. ¶¶ 54-55).

During her time at SMH and

MCV, Plaintiff suffered additional consequences from her acute
mesenteric

ischemia,

including

“persistently

low

hemoglobin

levels, rectal bleeding, confusion, agitation, altered mental
status

requiring

medication

and

psychological

consultations,

high blood sugar, nausea and vomiting, high pulse rate, rapid
shivering and twitching of her jaw, incontinence, inability to
talk

and/or

respond

[Methicillin-resistant
diarrhea.”

(Id.

significant

and

suffering,

to

questions,

Staphylococcus

¶ 60).
severe

inconvenience,

hospital
Aureus],

acquired
[and]

MRSA

explosive

“Plaintiff continues to experience
physical

and

physical

mental

anguish,

impairment,

pain,

disfigurement,

and other injuries, as well as additional medical treatment,
bills, and loss of earnings and economic capacity.”
B.

(Id. ¶ 63).

Complaint

Plaintiffs allege that Defendants provided inadequate care
and treatment to Ms. Whitfield from September 29 to October 3,
2008.
The

Maryland

Health

Care

Malpractice

Claims

Act

(the

“Malpractice Claims Act”), Md. Code Ann., Cts. & Jud. Proc. §§
3-2A-01 et seq., governs the procedures for medical malpractice
claims in the state of Maryland.
5

See, e.g., Carroll v. Kontis,

400 Md. 167, 172 (2007).

On September 26, 2011, Plaintiffs

filed a Statement of Claim in the Healthcare Alternative Dispute
Resolution Office (“HCADRO”). The HCADRO is an administrative
body established by the Malpractice Claims Act.
A

party

can

waive

arbitration

in

the

HCADRO,

which

terminates proceedings.

See Md. Code Ann., Cts. & Jud. Proc. §

3-2A-06B(a) to (d)(1).

The Malpractice Claims Act notes that

suit may then be filed in either Maryland Circuit Court or the
U.S. District Court.

Id. §§ 3-2A-06A(c), 06B(f).

On July 24, 2012, all Defendants filed an election to waive
arbitration under the Malpractice Claims Act.
HCADRO ordered transfer to this court.

On July 27, 2012,

Plaintiffs filed their

(ECF No. 1).4

complaint on September 14, 2012.

Plaintiffs

complaint consists of two claims: first, a claim of medical
negligence; specifically, that Defendants owed Plaintiff Holley
Whitfield

a

duty

to

exercise

that

degree

of

skill

and

care

ordinarily possessed and used by health care providers acting in
the

same

or

similar

circumstances.

Plaintiffs

allege

that

Defendants breached this duty in a variety of ways, the result
of which directly and proximately caused Plaintiff’s economic
and non-economic damages.

Second, Plaintiffs claim that as a

direct and proximate cause of Defendants’ negligence, Plaintiffs

4

The other
Whitfield’s spouse.

Plaintiff

is
6

Michael

Whitfield,

Holley

suffered damage to their marital relationship.
64-71).

This

diversity,

28

court’s
U.S.C.

§

subject-matter
1332,

as

(ECF No. 1 ¶¶

jurisdiction

Plaintiffs

are

lies

in

citizens

of

Virginia and Defendants are citizens of either Maryland or Utah
and the amount in controversy exceeds $75,000.
C.

(Id. ¶ 4).

Post-Complaint

Dr.

David

H.

Goldstein,

witnesses, was deposed.

one

of

Plaintiffs’

expert

Dr. Goldstein testified that based on

the symptoms Plaintiff presented upon arrival at SMH, Defendants
should have promptly ordered a CAT Scan, and failure to do so
promptly violated their standard of care.

The CAT Scan would

have revealed Plaintiff’s SMVT, for which the standard of care
was treatment with an anticoagulant such as the drug heparin.
Dr. Goldstein contends that Defendants’ failure to administer
heparin

by

September

30,

2008

caused

Plaintiff’s

injuries,

because if the drug was administered by that date, it was his
opinion that it is more likely than not that blood would have
returned to her intestines, foregoing the need for surgery which
resulted in the removal of seventeen inches of Plaintiff’s small
intestine.
would

have

Alternatively,
reduced

the

prompt

amount

removed.

7

of

administration

of

intestine

had

that

heparin
to

be

II.

Procedural Background
On June 7, 2013, Defendant Weatherby Locums, Inc. filed a

motion for summary judgment, arguing that it is not liable for
Dr.

Hill’s

alleged

negligence

because

Dr.

Hill

employee, but instead an independent contractor.

is

not

its

Additionally,

Weatherby Locums argues that Plaintiffs have not demonstrated
that Plaintiffs relied upon Weatherby’s apparent authority over
Dr. Hill when receiving medical care.

(ECF No. 44).

Plaintiffs

filed an opposition on June 24, 2013 (ECF No. 47), to which
Weatherby replied on July 9, 2013 (ECF No. 48).
On July 19, 2013, Defendants filed a joint motion in limine
to strike and exclude Dr. Goldstein’s causation testimony on the
ground

that

it

fails

to

satisfy

the

requirements

for

admissibility of expert testimony pursuant to Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579 (1993), and its progeny.
No. 49).
summary

(ECF

On the same day, Defendants filed a joint motion for
judgment,

arguing

that

because

Dr.

Goldstein

was

Plaintiffs’ only expert who testified about causation, should
his
that

testimony
no

be

genuine

causation
negligence.

element

excluded,

Defendants

issue

material

of

of

Plaintiff’s

(ECF No. 50).

will
fact
prima

have

demonstrated

exists
facie

as

to

the

claim

of

Plaintiffs filed oppositions to each

motion on August 8, 2013 (ECF Nos. 49 & 50), and Defendants
replied to both on August 26, 2013 (ECF Nos. 57 & 58).
8

Finally, on August 16, 2013, Defendants filed a motion to
withdraw certain exhibits to their motion in limine and motion
for summary judgment after being alerted by Plaintiffs that they
contain

personal

identifying

information.

They

replace these exhibits with redacted versions.

propose

to

(ECF No. 56).

Plaintiffs have not filed a response.
III. Motion to Exclude
A.

Standard of Review

Under Federal Rule of Evidence 702, the district court has
“a

special

obligation

.

.

.

to

‘ensure

that

any

and

all

scientific testimony . . . is not only relevant, but reliable.’”
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (quoting
Daubert, 509 U.S. at 589).

Rule 702 provides,

[i]f
scientific,
technical,
or
other
specialized knowledge will assist the trier
of fact to understand the evidence or to
determine a fact in issue, a witness
qualified as an expert by knowledge, skill,
experience, training, or education, may
testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based on
sufficient facts or data, (2) the testimony
is the product of reliable principles and
methods, and (3) the witness has applied the
principles and methods reliably to the facts
of the case.
The United States Court of Appeals for the Fourth Circuit
explained Rule 702 as follows:
The first prong of this inquiry necessitates
an examination of whether the reasoning or
methodology
underlying
the
expert’s
9

proffered opinion is reliable – that is,
whether
it
is
supported
by
adequate
validation to render it trustworthy.
See
[Daubert, 509 U.S.] at 590 n.9. The second
prong of the inquiry requires an analysis of
whether the opinion is relevant to the facts
at issue. See id. at 591-92.
Westberry v. Gislaved Gummi AB, 178 F.3d 257, 260 (4th

Cir.

1999).
To be considered reliable, an expert opinion “must be based
on scientific, technical, or other specialized knowledge and not
on belief or speculation, and inferences must be derived using
scientific or other valid methods.”

Oglesby v. Gen. Motors

Corp., 190 F.3d 244, 250 (4th Cir. 1999) (citing Daubert, 509
U.S. at 592-93).

The district court enjoys “broad latitude” in

determining

the

reliability

testimony,

and

its

deference.

and

admissibility

determination

receives

of

expert

considerable

Kumho Tire Co., 526 U.S. at 142 (citing Gen. Elec.

Co v. Joiner, 522 U.S. 136, 143 (1997)).

The proponent of the

testimony must establish its admissibility by a preponderance of
proof.

Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th

Cir. 2001) (citing Daubert, 509 U.S. at 592 n.10).
B.

Analysis

1.

Methodology

In his deposition, Dr. Goldstein provided his opinion “to a
reasonable degree of medical certainty, that had the SMVT been
diagnosed earlier that the outcome would have been different.”
10

(ECF No. 49-6 at 15, Trans. 51:19-23).

Dr. Goldstein believes

that when Plaintiff arrived at SMH on September 28, 2008, she
was already suffering from SMVT, which by definition means her
bowel was ischemic, i.e., having a decreased blood supply due to
an obstruction.
Whitfield
vomit.

was
(Id.

He believed that the ischemia explained why Ms.
experiencing
at

20-21,

hematemesis,
Trans.

73:14

i.e.,
–

blood

75:10).

in

one’s

Goldstein

testified that, although Ms. Whitefield’s bowel was ischemic,
none of it upon arrival at SMH had yet become infarcted, or dead
(necrosis), because of an obstruction of the blood supply.

Dr.

Goldstein draws this conclusion by way of a negative inference:
an infarcted bowel results in a breakdown of the intestine’s
walls.

This results in bacteria entering into the bloodstream

which causes a person often to go into septic shock and die
within

twenty-four

hours.

The

fact

that

Ms.

Whitfield

had

survived for the four days she was in the care of SMH before the
SMVT diagnosis leads to the conclusion that it was not infarcted
upon

admission

or

else

she

should

have

been

dead.

This

conclusion was bolstered by Dr. Abassi’s note on September 29,
2008, where he wrote that Plaintiff’s abdomen had no rebound
tenderness or guarding, meaning an absence of signs of acute
peritonitis (inflammation of the thin tissue that covers most of
the

abdominal

completely died.

organs),

suggesting

that

the

bowel

had

not

Therefore, Dr. Goldstein’s medical opinion was
11

that

Plaintiff’s

bowel
30,

was

ischemic

2008.

(Id.

but

at

not

15-16,

yet

infarcted

through

September

Trans.

50:13

-

55:19).

Dr. Goldstein goes on to explain that if the Defendants

had followed the standard of care, they would have recognized
that

Plaintiff’s

arrival

at

SMH

with

a

high

heart

and

respiratory rate and abdominal pain meant by definition she had
Systemic

Inflammatory

Response

Syndrome

(“SIRS”)

which

include multiple possible emergencies, including SMVT.

can
These

possibilities require evaluation by a CAT Scan which would have
revealed SMVT.

The CAT Scan was not done on September 29, 2008,

when Plaintiff’s condition should have demanded it, but instead
October 2, 2008.
which

By that time, the bowel had become infarcted

necessitated

surgery.

(Id.

at

13-15,

Trans.

44:2

–

50:12).
The crux of Defendants’ motion concerns the next step in
Dr. Goldstein’s assessment.

Dr. Goldstein posits that if the

CAT Scan was done promptly – as demanded by the standard of care
–

the

SMVT

would

have

been

discovered

Plaintiff’s bowel was only ischemic.

at

a

point

where

The standard of care for

an ischemic bowel is immediate treatment with an anticoagulant
such as heparin.

Dr. Goldstein contends that had Ms. Whitfield

been treated with heparin by September 30, 2008, it is “more
likely than not [that] she would not have required surgery. . .
.

Had she required surgery, it would have been done in a more
12

timely manner and less bowel would have been required to be
resected.”

(Id. at 16, Trans. 56:12 – 57:11; see also id. at

32, Trans. 118:2-25 (same)).
Goldstein’s
diagnose

reasoning

Plaintiff’s

Defendants’ attorney asked for Dr.

behind
SMVT

his

opinion

promptly

and

resulted in her requiring surgery.

that

failure

administer

to

heparin

Dr. Goldstein responded that

he was relying on two issues:
Number
one,
the
main
treatment
indicated for the acute treatment of [SMVT]
is heparin.
That’s the immediate emergency
treatment that is recommended in all the
publications that I’ve read and what I
remember from my evaluation.
Number two, that when the patient does
not have signs of peritonitis – in other
words, acute rebound and severe pain with
rebound and guarding and a silent abdomen,
in other words, a rigid abdomen – that the
literature says that the only indication for
surgery is when you actually have developed
a peritonitis or severe ischemia.
When you look at the record, the
patient didn’t have rebound on the 28th, 29th,
or 30th, and as I mentioned, if the patient
actually had dead bowel on the 28th, 29th, or
30th, it’s my opinion she would have been
dead if she didn’t have surgery until the
3rd. So that’s the basis of my opinion.
(Id. at 32, Trans. 119:5-23).

Defendants’ attorney continued to

press

opinion

Dr.

Goldstein

on

his

that

administration

heparin would have prevented Plaintiff’s surgery.
Q: Doctor, is it your opinion that any time
a patient has ischemia with an SMVT but no
peritonitis, that simply starting heparin
13

of

therapy can prevent the patient from going
on to infarction?
A: When you say is it my opinion that it can
simply do that, no.
It’s my opinion that
that’s the standard of care, and that in
many instances since it’s the standard of
care and that’s the first treatment for it,
it prevents bowel surgery.
And it’s my opinion in this case that since
she had three or four days before she got
into more trouble that she had not yet
infarcted the bowel.
So I’m just saying
more likely than not, had the heparin been
started on the 28th, 29th, and 30th, she would
not have required surgery, and if she did
require surgery, it would have been less
bowel resection.
. . .
Q: So can we agree that even if a patient
who has an SMVT causing ischemia receives
heparin therapy, even with the heparin
therapy, it is possible for that patient to
go to infarct the bowel, correct?
A: Yes. Yes.
Q: Do you know what the statistics are, if
any, on patients who simply have ischemia
but not peritonitis in the face of an SMVT
who get heparin therapy who don’t go on to
infarct some portion of their bowel?
A: I don’t know the statistics. All I know
is as I mentioned in the articles that I’ve
presented, the treatment of choice – the
first treatment is anticoagulation, and if
there’s no peritonitis, many patients do not
require bowel surgery at all, and she was
not given that chance.
I don’t know the
statistics.
. . .
Q: Have you seen those statistics offered
anywhere in the literature?
14

A: Well, I have not done a specific search
for that. I’m not saying that those are or
are not offered, but I did not do that
search.
Q:
Conversely,
do
you
know
what
the
statistics are for patients who have an
SMVT, no peritonitis, but ischemia of the
bowel who receive heparin therapy, but still
go on to have – or require surgery and
removal of portions of their bowel?
A: Well, that’s the inverse of the first
question, so by not answering the first, I
don’t have an answer for the second either.
(Id. at 32-33, Trans. 120:7-22, 121:9 – 122:1, 122:6 – 122:18).
In support of his opinion, Dr. Goldstein brought to the
deposition

the

medical

literature

he

relied

upon.

These

articles indicate that
[s]tandard
initial
treatment
for
acute
mesenteric
venous
thrombosis
includes
heparin anticoagulation and resection of the
infarcted
bowel.
Anticoagulation
with
heparin can be given even in patients who
have
gastrointestinal
bleeding
if
the
bleeding risk is considered to be outweighed
by
the
risk
of
intestinal
infarction.
Patients who have good mesenteric blood flow
demonstrated by angiography and who do not
have
peritoneal
signs
can
be
observed
closely while other patients should proceed
directly to laparotomy.
(Id.

at

118,

David

A.

Tendler

&

J.

Thomas

LaMont,

Acute

Mesenteric Ischemia (last updated May 4, 2012); see also id. at
122,

Chat

Management

V.

Dang,

(last

Acute
updated

Mesenteric
Feb.

15

Ischemia
22,

2013)

Treatment

&

(“Heparin

anticoagulation is the main treatment of MVT.
bowel

necrosis

exist,

the

patient

may

If no signs of

not

even

need

an

operation.”)).
Defendants attack Dr. Goldstein’s view that administration
of heparin would break up an already existing clot, thereby
allowing blood to return to the bowel, staving off infarction
and surgery.

They argue that “[i]t has been established through

scientific literature and testing that the medication [h]eparin
does not break up, lyse, or destroy [an] existing clot in the
body,” but instead “only works to prevent future clots or the
propagation of an existing clot in the body.”
13-14).
in

the

(ECF No. 49-2, at

In support, Defendants provide the entry for “heparin”
2003

Physician’s

Desk

Reference

(the

latest

version

before Ms. Whitfield’s illness), which states that “[h]eparin
does not have fibrinolytic activity; therefore, it will not lyse
existing

clots.”

(ECF

No.

49-12,

at

2).

Defendants

also

provided affidavits of Dr. John Feigert, a hematologist, and Dr.
Nancy Clark, a vascular surgeon.
Feigert

avers

that

the

(ECF Nos. 49-13 & 49-14).

hematemesis

Plaintiff

presented

Dr.
upon

arrival at SMH “was evidence that the [SMVT] was already formed
and had occluded the superior mesenteric vein.”

(ECF No. 49-13

¶ 16).

He disagreed with Dr. Goldstein’s causation opinion

“because

it

is

not

consistent

with

the

medical

science

surrounding the mechanism of action of [h]eparin or how a [SMVT]
16

causes bowel injury leading to surgery.”
time

Plaintiff

arrived

at

SMH,

she

(Id. ¶ 17).

already

had

By the

the

clot.

Administering heparin would do nothing to bring blood flow back
to the bowel because heparin simply does not have the capability
to break down clots.

Dr. Feigert believed that Plaintiff would

have had to have surgery regardless of when Defendants diagnosed
SMVT and there is no “reasonable medical or scientific support
for Dr. Goldstein’s contention” about the salutary effects of
heparin.

(Id.

¶¶

19-22).

reasoning and conclusions.

Dr.

Clark

provided

identical

(See ECF No. 49-14 ¶¶ 12-13).

In response, Plaintiffs contend that even if heparin is
unable to dissolve clots, it does not follow that administering
heparin to Ms. Whitfield earlier would not have limited her
injury

because

clots.

By not treating the clot, it was permitted to propagate,

exacerbating
removal

of

Plaintiffs
position.

heparin

ischemia
part

of

provide

does

which
the

prevent

propagation

eventually
bowel.

additional

led

(ECF

literature

to

No.
in

of

existing

infarction
54

at

support

and

15-16).
of

their

(See, e.g., ECF No. 54-14, at 5, Shaji Kumar, et al.,

Mesenteric Venous Thrombosis, 345 New Eng. J. Med. 1683, 1687
(Dec.

6,

managed

2001)
without

infarction.”)).
presentation

of

(“Mesenteric
surgery

venous

if

there

Defendants
hematemesis

thrombosis
is

reply

upon
17

can

safely

no

evidence

that

Ms.

Whitfield’s

SMH

demonstrated

arrival

at

of

be

bowel

that

her

ischemia

was

too

severe

to

be

reversed

by

heparin

before the bowel would become infarcted and require surgery.
(ECF No. 58, at 9-11).
The Fourth Circuit has recognized the competing principles
at work in terms of expert testimony:
On the one hand, the court should be mindful
that Rule 702 was intended to liberalize the
introduction of relevant expert evidence.
See Cavallo v. Star Enter., 100 F.3d 1150,
1158-59 (4th Cir. 1996). And, the court need
not determine that the expert testimony a
litigant seeks to offer into evidence is
irrefutable or certainly correct.
See id.
As with all other admissible evidence,
expert testimony is subject to being tested
by
“[v]igorous
cross-examination,
presentation
of
contrary
evidence,
and
careful instruction on the burden of proof.
Daubert, 509 U.S. at 596.
On the other
hand, the court must recognize that due to
the
difficulty
of
evaluating
their
testimony,
expert
witnesses
have
the
potential to “be both powerful and quite
misleading.” Id. at 595 (internal quotation
marks omitted).
And, given the potential
persuasiveness
of
expert
testimony,
proffered
evidence
that
has
a
greater
potential to mislead than to enlighten
should be excluded.
See United States v.
Dorsey, 45 F.3d 809, 815-16 (4th Cir. 1995).
Westberry, 178 F.3d at 261.

A literature review can be an

appropriate part of a method of determining causation.
the

Daubert

standard,

necessarily

required

methodology

employed

conclusion is sound.”

to
by

epidemiological
prove
the

studies

causation,

expert

in

as

reaching

“Under

are

long
his

not

as

the

or

her

Benedi v. McNeil-P.P.C., Inc., 66 F.3d
18

1378, 1384 (4th Cir. 1995).

While this case is about medical

malpractice, on the specific issue of causation, it turns into a
drug efficacy case, specifically the efficacy of heparin if it
was administered to Ms. Whitfield by September 30, 2008.

Even

assuming, for the sake of this motion, that there was a breach
in the standard of care, Plaintiffs still must demonstrate that
eliminating

Defendants’

delay

in

administering

heparin

would

have made it more likely than not that surgery would not have
occurred.
Dr. Goldstein’s testimony has met the standard of Rule 702
for

reliability.

deposition

The

studies

representing

what

Dr.

he

Goldstein

relied

upon

conclusion support the opinions he expressed.

brought
in

to

his

forming

his

Critically, Dr.

Goldstein points to Dr. Abassi’s note on September 29, 2008
indicating that Plaintiff’s abdomen had no rebound tenderness or
guarding, meaning an absence of signs of peritonitis, suggesting
that the bowel necrosis had not yet occurred.

Dr. Goldstein

produced a medical article at deposition that supports the view
that

for

surgery.

pre-bowel
(See

ECF

necrosis,
No.

administering

49-6,

at

122,

heparin

Chat

V.

can

avoid

Dang,

Acute

Mesenteric Ischemia Treatment & Management (last updated Feb.
22, 2013) (“Heparin anticoagulation is the main treatment of
[mesenteric vein thrombosis].

If no signs of bowel necrosis

exists, the patient may not even need an operation.”).
19

Further

articles

accompanying

position.

(See

ECF

Plaintiffs’
No.

54-14,

opposition

at

5,

Shaji

support
Kumar,

et

this
al.,

Mesenteric Venous Thrombosis, 345 New Eng. J. Med. 1683, 1687
(Dec.

6,

managed

2001)
without

(“Mesenteric
surgery

venous

if

there

thrombosis
is

no

can

safely

evidence

of

be

bowel

infarction.”); ECF No. 54-15, at 5, Elena M. Stoffel & Norton J.
Greenberger,

Mesenteric

Ischemia,

at

68

(“[I]n

patients

with

clinical and radiologic evidence of MVT, but no infarction, and
with

good

mesenteric

blood

flow

demonstrated

by

angiography,

conservative management can be attempted using anticoagulation
therapy.”)).

These

studies

indicate

that

Dr.

Goldstein’s

opinion possesses the degree of reliability demanded by Rule 702
to be admissible, drawing no conclusions as to the weight to be
attached to those opinions and their underlying evidence.
Defendants attempt to refute Dr. Goldstein’s conclusions by
pointing to the known properties of heparin, specifically its
ability to prevent only the propagation of clots, not to lyse
existing clots.

They provide an affidavit of Dr. Feigert, a

hematologist, who contends that upon presentation to SMH, Ms.
Whitfield’s condition already had passed the point where the
body’s natural ability to break up clots would work fast enough
to

prevent

infarction

and

surgery

even

administered to arrest the clot’s propagation.
21).

if

heparin

was

(ECF No. 49-13 ¶

Defendants will have ample opportunity to cross-examine
20

Dr.

Goldstein

about

these

arguments

and

present

their

own

evidence, but for purposes of Rule 702, “the court need not
determine that the expert testimony a litigant seeks to offer
into evidence is irrefutable or certainly correct.”

Westberry,

178 F.3d at 261.
Defendants

place

great

weight

on

Doe

v.

Ortho-Clinical

Diagnostics, Inc., 440 F.Supp.2d 465 (M.D.N.C. 2006), in which
plaintiffs desired to have an expert testify that exposure to a
drug caused their child’s autism.

As Defendants acknowledge,

this case is not binding authority on this court.

Furthermore,

there are numerous differences between that case and the present
situation.
and

First, in Doe “all of the available peer-reviewed

generally

causation.”
suggesting

accepted

Id. at 475.
the

opposite.

epidemiological

studies

refute

Here, there is medical literature
Second,

the

Doe

court

rejected

plaintiffs’ expert because he could not meet the preponderance
of the evidence standard required to show that the drug could
cause autism because the principal study he relied upon stated
that

it

only

demonstrated

“one

possible

mechanism

by

[exposure to the drug] could increase the risk of autism.”
at 474 (emphasis added).

which
Id.

The court found such a conditional

statement inadequate, characterizing it as mere “hypothesis and
speculation.”

Id.

21

This standard is too exacting as it appears to be demanding
that the expert’s ultimate conclusion – exposure to the drug
causes autism – be more likely than not, rather than demanding
merely that plaintiff demonstrate by a preponderance of proof
that their expert’s methods and principles used to arrive at his
conclusion are reliable and relevant.

See United States v.

Moreland, 437 F.3d 424, 431 (4th Cir. 2006).5

While the Supreme

Court

“conclusions

of

the

United

States

has

said

that

and

methodology are not entirely distinct from one another,” Gen.
Elec. v. Joiner, 522 U.S. 136, 146 (1997), this is not a case
where “there is simply too great an analytical gap between the
data and the opinion proffered,” id. at 146; cf. Gross v. King

5

Defendants make a similar argument elsewhere in the brief,
setting forth the following standard for “preponderance”: “Under
this standard, the proponent ‘must present reliable, probative,
and substantial evidence of such sufficient quality and quantity
that a reasonable [judge] could conclude that the existence of
the facts supporting the claim are more probable than their
nonexistence.’”
(ECF No. 49-2, at 11 (quoting United States
Steel Mining Co., Inc. v. Dir., Office of Workers’ Comp.
Programs, United States Dep’t of Labor, 187 F.3d 384, 389 (4th
Cir. 1999)). But Steel Mining was concerned with the burden of
a proponent to prove each element of his ultimate claim, as
opposed to the preliminary matter of whether evidence to support
that claim is admissible pursuant to the Federal Rules of
Evidence.
In arriving at the preponderance standard for Rule
702 admissibility, the Supreme Court in Daubert cited Bourjaily
v. United States.
509 U.S. at 592 n.10.
Bourjaily explained
that “[t]he inquiry made by a court concerned with these matters
is not whether the proponent of the evidence wins or loses his
case on the merits, but whether the evidentiary Rules have been
satisfied.
Thus, the evidentiary standard is unrelated to the
burden of proof on the substantive issues, be it a criminal case
or a civil case.” 483 U.S. 171, 175 (1987) (citations omitted).
22

David Bistro, 83 F.Supp.2d 597, 600 (D.Md. 2000) (finding too
great a gap between data and proffered opinion where data could
only

support

nascent

opinion

analogy

tepid”

and

by
to

and

support

was,

its

furthermore,

original

“too

conclusion).

Further, the Doe court cited Cavallo v. Star Enter., 100 F.3d
1150 (4th Cir. 1996), in support of its rejection of the expert’s
conclusion.
the

But in Cavallo, the Fourth Circuit, while upholding

district

court’s

exclusion

of

expert

testimony

as

not

inconsistent with Daubert, remarked that the district court’s
standard was “restrictive.”

Id. at 1159.

Such a restrictive

view of Rule 702 will not be followed here, given Rule 702’s
liberal

language

and

Defendants’

further

challenge and refute Dr. Goldstein opinions.

opportunities

to

See Westberry, 178

F.3d at 261; Fed. R. Evid. 702 advisory committee notes, 2000
amendments (“A review of the caselaw after Daubert shows that
the rejection of expert testimony is the exception rather than
the rule.”).
Having
literature

reviewed
he

Dr.

relies

Goldstein’s

upon,

it

testimony

cannot

be

and
that

said

the
his

methodology or ultimate conclusions are unwarranted, at least
for the purposes of admissibility.
Goldstein’s

methodology

criticism.

Indeed,

Defendants

on

and

many

of

This is not to say that Dr.

conclusions
his

cross-examination.
23

methods
At

this

are
may

impervious
be

tested

juncture,

to
by

however,

only the admissibility of Dr. Goldstein’s opinion is at issue,
not the weight it should be afforded, and his opinion passes
that threshold.
2.

Qualifications

Defendants also challenge Dr. Goldstein’s qualifications to
provide expert testimony on causation.

Dr. Goldstein received

his medical degree from the University of Manitoba in 1976 and
performed

his

internship,

Harvard Medical School.

residencies,

and

fellowships

at

He is currently a pulmonologist and

hospitalist at a hospital in Sarasota, Florida and is also a
clinical professor of internal medicine, pulmonary medicine, and
hospitalist medicine at Florida State University Medical School.
He

is

board

certified

in

pulmonology

and

internal

medicine.

(ECF No. 54-13, curriculum vitae of David H. Goldstein, M.D.).
Dr. Goldstein has only diagnosed two cases of SMVT in his career
and never testified as an expert in an SMVT litigation, nor has
he published anything on SMVT.
18:2-25, 38:15-25).

(ECF No. 49-6 at 7, 12, Trans.

But Dr. Goldstein as a hospitalist would be

the first doctor responsible for diagnosing SMVT and starting
the patient on heparin.
be

responsible

for

(Id. at 18, Trans. 65:1-20).

monitoring

effectiveness in a given patient.
67:4).
give

heparin

and

He would

evaluating

its

(Id. at 19, Trans. 66:11 –

Defendants argue that Dr. Goldstein is not qualified to

testimony

on

causation

because
24

he

lacks

experience

in

general or vascular surgery and therefore is not qualified to
render an opinion on the necessity of surgery if heparin was
administered earlier.
The

Fourth

(ECF No. 49-2, at 22-23).

Circuit

has

held

that

“[t]he

witness’

qualifications to render an expert opinion are . . . liberally
Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir.

judged by Rule 702.
1993).

“Inasmuch as [Rule 702] uses the disjunctive, a person

may qualify to render expert testimony in any one of the five
ways

listed:

education.”

knowledge,

skill,

experience,

training,

or

Id.

Generally, the test for exclusion is a
strict one, and the purported expert must
have neither satisfactory knowledge, skill,
experience, training nor education on the
issue for which the opinion is proffered.
One knowledgeable about a particular subject
need not be precisely informed about all
details of the issues raised in order to
offer an opinion.
Kline, 878 F.2d at 799.
is

not

a

sufficient

Moreover, a “lack of direct experience

basis

to

reject

[a

proposed

expert’s]

testimony, but may affect the weight that testimony is given, a
decision properly made by the [finder of fact].”
Fleissner
Dr.

GMBH,

741

Goldstein’s

F.2d

61,

experience

64

with

(4th

Martin v.

Cir.

diagnosing

1984).

SMVT

and

administering heparin and monitoring its effects, combined with
his

knowledge

from

reviewing

the

literature

qualify him as an expert on causation.
25

discussed

above,

He can assist the trier

of fact with the issue of how diagnosing SMVT at an earlier time
– with the corresponding administration of heparin – would have
affected

Plaintiff’s

injuries.

Defendants’

issues

with

Dr.

Goldstein’s experience or knowledge can similarly be challenged
on cross-examination.

Therefore, Defendants’ motion to exclude

Dr. Goldstein’s testimony on causation will be denied.
IV.

Motions for Summary Judgment
A.

Standard of Review

A motion for summary judgment will be granted only if there
exists no genuine dispute as to any material fact and the moving
party

is

entitled

to

judgment

as

a

matter

of

law.

See

Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986);

Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

250

(1986).

The moving party bears the burden of showing that there

is no genuine dispute as to any material fact.
B.

Analysis: Defendants’ Joint Motion

Plaintiffs’

claims

are

for

medical

malpractice,

“which

includes the elements of duty, breach, causation, and harm.”
Barnes v. Greater Balt. Med. Ctr., 210 Md.App. 457, 480 (2013).
To prove causation, Plaintiffs have “to establish that but for
the negligence of the [Defendants], the injury would not have
occurred.

Because of the complex nature of medical malpractice

cases, expert testimony is normally required to establish breach
of the standard of care and causation.”
26

Id. at 481 (internal

citations omitted).

Defendants’ motion for summary judgment is

premised entirely on the court granting their motion to exclude
Dr. Goldstein’s expert testimony on causation.

Defendants argue

that

testified

Dr.

Goldstein

causation,

so

if

is

the

Dr.

only

expert

Goldstein’s

who

causation

as

testimony

to
is

excluded, Plaintiffs will have failed to satisfy that element of
their prima facie case.

(See generally ECF No. 50).

Because

their motion to exclude will be denied, so too will their motion
for summary judgment.
C.

Analysis: Motion of Weatherby Locums, Inc.

Plaintiffs argue that Defendant Weatherby Locums, Inc. is
liable for the negligence of Defendant Hill as her employer
under the doctrine of respondeat superior.

Weatherby Locums

moved for summary judgment, arguing that Dr. Hill is not its
employee, but merely an independent contractor.

Additionally,

Weatherby Locums argues that Plaintiffs have not demonstrated
any genuine issue of material fact that Weatherby Locums had
apparent authority over Dr. Hill.
1.

Actual Authority

Generally speaking, a principal is vicariously liable for
the negligence of another when the two share a master-servant or
employer-employee relationship, but not if the other is merely
an independent contractor of the principal.
Ctr., 121 Md.App. 516, 545 (1998).
27

Hunt v. Mercy Med.

The distinction between a

servant and an independent contractor lies in the degree of
control exerted by the employer.
Of

Washington,

LLC,

855

(applying Maryland law).

Danner v. Int’l Freight Sys.

F.Supp.2d

433,

454-55

(D.Md.

2012)

In Balt. Harbor Charters, Ltd. v. Ayd,

365 Md. 366, 387 (2001), the Court of Appeals of Maryland said:
“[T]he test in determining whether a person is a servant or an
independent contractor is whether the employer has the right of
control

over

performed.”

the

employee

in

(citation omitted).

employed to perform

respect

to

the

work

to

be

A “servant is a person who is

. . . services for another . . . and who,

in respect to his physical movements in the performance of the
service, is subject to the other’s control or right of control.”
Green v. H & R Block, Inc., 355 Md. 488, 508-09 (1999) (quoting
Globe Indemnity Co. v. Victill Corp., 208 Md. 573, 581 (1956)
(quotation

marks

omitted)).

Conversely,

an

independent

contractor is generally “free to exercise his own judgment and
discretion as to the means and assistants that he may think
proper to employ about the work, exclusive of the control and
direction, in this respect, of the party for who the work is
being

done.”

(citation

and

Balt.

Harbor

quotation

Charters,

marks

365

omitted).

Md.

at

387

Notably,

n.15

“[t]he

reservation of some control over the manner in which work is
done does not destroy the independent contractor relationship
where the contractor is not deprived of his judgment in the
28

execution of his duties.”

Brooks v. Euclid Sys. Corp., 151

Md.App. 487, 510 (2003).
Weatherby Locums argues that Dr. Hill was an independent
contractor.

Weatherby

Locums

and

Dr.

Hill

entered

into

a

“Physician Professional Services Agreement” which explained that
“Weatherby

desires

to

engage

[Dr.

Hill]

on

an

independent

contractor basis to furnish locum tenens physician services to
Weatherby clients.

[Dr. Hill] desires to provide independent

contractor locum tenens physician services through Weatherby to
clients.”

(ECF No. 44-2, at 1).

In support of its position,

Weatherby points to two clauses of its contract with Dr. Hill.
Sections

1.5

and

1.6

obligate

Dr.

Hill

to

“faithfully

and

diligently render Services pursuant to the highest professional
and ethical standards and in accordance with accepted standards
of

care,”

and

provide

that

she

“shall

exercise

independent

judgment and control over the provision of Services.”

This,

according to Weatherby Locums, demonstrates that it retained no
control over Dr. Hill’s independent medical decisions and thus
Dr. Hill is an independent contractor.

This view is confirmed

by Section 1.12 which states that “Weatherby Locums’s interest
is in the final result of arranging for medical coverage and not
in

making

specific

medical

decisions.

As

an

independent

contractor, [Dr. Hill] is not an employee of Weatherby or [SMH]
for any purpose.”

In addition, Weatherby’s service agreement
29

with

SMH

states

contractor

of

that

“[e]ach

Weatherby.

.

.

Physician

.

is

Weatherby’s

an

independent

interest

is

in

furnishing Physician coverage; Weatherby does not make clinical
decisions

for

Physicians

and

does

not

otherwise

direct

control the clinical services furnished by Physicians.”
No. 44-5, § 2.B).

Locums

and

counter

Dr.

(ECF

Weatherby maintained this position in its

answers to Plaintiffs’ interrogatories.
Plaintiffs

or

Hill

that

the

(See ECF No. 44-4).

agreement
numerous

places

between

Weatherby

restrictions

and

requirements on Dr. Hill which “amount to an agent being subject
to

the

principal’s

control

over

the

objectives of the agency relationship.”
Plaintiffs

see

section

1.6

in

a

result

or

ultimate

(ECF No. 47-1, at 7).
very

different

light.

Specifically, its clause requiring Dr. Hill to provide necessary
clinical documentation to the hospital in a timely manner or be
considered in a material breach constitutes much more than a
mere reservation of control.

Other sections indicate Weatherby

Locums’s control of Dr. Hill’s work.

Section 3.0 places a non-

compete clause on Dr. Hill: during the term of the agreement and
for twelve months thereafter, she is not to provide services to
client

hospitals

unless

through

Weatherby

compete with client hospitals’ practices.

Locums

or

directly

Section 4.1e provides

Weatherby the right to cancel the agreement immediately if it is
Weatherby Locums’s reasonable determination that Dr. Hill has
30

failed to perform her physician duties “in accordance with the
highest professional and ethical standards,” a standard higher
than the standard imposed by law.

Section 5.1 gives Weatherby

Locums permission to use Dr. Hill’s name as a reference in the
normal course of business, and Section 5.4 provides that all
data

received

connection

from

with

Dr.

or

on

agreement

the

Hill

is

Dr.

the

Hill’s

property

behalf

of

in

Weatherby

Locums.

Finally, Section 5.E of the Weatherby-SMH agreement

explains

that

should

SMH

desire

to

remove

Dr.

Hill

for

professional incompetence, Weatherby Locums “reserves the right
to first counsel [Dr. Hill] and provide an opportunity for [Dr.
Hill] to correct any deficiencies prior to any such removal if,
in

its

reasonable

endangerment.”

discretion,

there

is

no

risk

of

patient

Plaintiffs contend that this clause indicates

that even if SMH wanted to fire Dr. Hill, it could not do so
because Weatherby Locums held ultimate control over Dr. Hill.
In

its

Plaintiffs’

reply,

contentions

Weatherby
as

not

Locums
relevant

dismisses
to

whether

most

of

Weatherby

Locums actually controlled Dr. Hill as an employer controls its
employee.

Weatherby Locums argues that, regardless, a principal

having some control over how the work is done does not destroy
the

independent

maintains
Brooks.

contractor

judgment

in

the

relationship
execution

of

where
his

the

contractor

duties,

citing

Section 1.2 of the agreement between Weatherby Locums
31

and Dr. Hill left Dr. Hill with a large degree of autonomy,
allowing her to refuse any assignment.

This fact was confirmed

in Dr. Hill’s deposition, where she also stated that Weatherby
Locums
3,

did not control her hours in any way.

Trans.

either

16:9-21).

party

could

Furthermore,
terminate

Section

any

(ECF No. 44-3 at
4.3

assignment

provides
or

the

that

entire

agreement with thirty days notice.
The contractual relationship between Dr. Hill and Weatherby
Locums permitted Dr. Hill to practice medicine with complete
autonomy.

Many aspects of the contract Plaintiffs cite are

peripheral issues that do not go to the ultimate question of
whether Dr. Hill retains control over the manner by which she
performs her duties, namely the practice of medicine.
control

exerted

independent
employee.

by

Weatherby

contractor

Locums

relationship

does

into

not
one

Such

convert
of

an

employer-

While the Maryland Court of Appeals has held that

“[t]he existence of an agency relationship is a question of fact
which

must

be

submitted

to

the

factfinder

if

any

legally

sufficient evidence tending to prove the agency is offered,”
Faya v. Almaraz, 329 Md. 435, 460 (1993), no such evidence has
been provided by Plaintiffs.

Cf. Lopez-Krist v. Salvagno, No.

ELH-12-01116, 2013 WL 5705437, at *13 (D.Md. Oct. 17, 2013)
(summary

judgment

for

medical

center

improper

where

contract

between doctor and medical center gave doctor control over most
32

medical decisions, medical center retained ability to control
schedule

to

some

extent

and

to

overrule

his

decisions

in

particular circumstances).

Accordingly, Weatherby’s motion for

summary

granted

judgment

will

be

on

the

issue

of

actual

authority.
2.

Apparent Authority

Maryland has adopted the Restatement (Second) of Agency, §
267 (1958) in determining the existence of an apparent agency
relationship, which states:
One who represents that another is his
servant or other agent and thereby causes a
third person justifiably to rely upon the
care of skill of such apparent agent is
subject to liability to the third person for
harm caused by the lack of care of skill of
the one appearing to be a servant or other
agent as if he were such.
See Mehlman v. Powell, 281 Md. 269, 273 (1977).

The Maryland

Court of Appeals has explained that the doctrine contains two
tests:
The first [test] is objective: could a
reasonable man believe that the company’s
manifestations
of
apparent
authority
indicate it is holding the operator out as
its agent?
The second is subjective: did
the facts known by the plaintiff in a
particular
case
reasonably
justify
his
assumption
that
the
operator
was
the
company’s agent?
Chevron, U.S.A., Inc. v. Lesch, 319 Md. 25, 35 (1990) (citation
omitted).

In order to recover on this theory, in addition to

33

showing that Dr. Hill was negligent and her negligence was a
proximate cause of Plaintiffs’ injuries, Plaintiffs must show
that: (1) they were misled by Weatherby Locums into believing
that Dr. Hill was an employee of Weatherby Locums; (2) this
belief was objectively reasonable under all the circumstances;
and, (3) they relied on the existence of that relationship in
making their decision to entrust Dr. Hill with Ms. Whitfield’s
care.

Id. at 34-35.

In regard to the third requirement, “[t]he

mere fact that acts are done by one whom the injured party
believes to be the defendant’s servant is not sufficient to
cause the apparent master to be liable.

There must be such

reliance upon the manifestation as exposes the plaintiff to the
negligent conduct.”

Id. at 35 (quoting Restatement (Second) of

Agency, § 267 cmt. A (1958)).
Plaintiffs bear the burden to show that appearances created
by Weatherby Locums led them to believe that Dr. Hill was an
agent of Weatherby Locums.

JAI Med. Sys. Managed Care Org.,

Inc. v. Bradford, 209 Md.App. 68, 78 (2012).
such

attempt,

“special

instead

relationship”

established in Mehlman.

relying

exclusively

between

hospital

Plaintiffs make no
on

the

and

apparent
physician

In Mehlman, the plaintiff went to a

hospital’s emergency room for care.

Plaintiff had no knowledge

that the emergency department was not operated by the hospital,
but rather by an independent contractor.
34

A physician who was an

employee

of

plaintiff.

the

contractor

was

negligent

in

his

care

for

Plaintiff sued the hospital, but the hospital argued

that it could not be held vicariously liable for the actions of
an independent contractor.

The Court of Appeals rejected this

argument:
[A] [h]ospital . . . is engaged in the
business of providing health care services.
One enters the hospital for no other reason.
When [the plaintiff] made the decision to go
to [the hospital], he obviously desired
medical services and equally obviously was
relying on [the hospital] to provide them.
Furthermore,
the
[h]ospital
and
the
emergency room are located in the same
general structure. . . .
It is not to be
expected, and nothing put [the plaintiff] on
notice, that the various procedures and
departments of a complex, modern hospital .
. . are in fact franchised out to various
independent contractors.
281 Md. at 274.
Unlike the hospital in Mehlman though, Weatherby Locums is
one step further removed from physician-patient relationship,
for not only is Dr. Hill not its actual employee, but it made no
representations to Plaintiffs to lead them to believe that Dr.
Hill was apparently its employee.

Southern Maryland Hospital

was the entity presenting itself to the community as available
to provide care.

Weatherby Locums was nowhere to be found.

Plaintiffs address this inconvenient fact by arguing that
Weatherby Locums should be considered equivalent to SMH for the
purposes

of

apparent

authority
35

because

it

and

SMH

have

established

a

“joint

venture

relationship.”

According

to

Plaintiffs, by entering into an agreement to furnish physicians
for the time periods requested, Weatherby Locums and SMH became
joint-partners,

such

that

any

representations

SMH

made

to

Plaintiffs were also made by Weatherby Locums.
Plaintiffs cite no case law to support such a proposition
and

none

has

contracting

been

with

partnership.6

found.

another

It
for

does

not

services

follow

that

establishes

merely

a

joint

Weatherby Locums’s motion for summary judgment

will be granted on the issue of apparent liability.

Therefore,

Weatherby Locums’s motion for summary judgment will be granted
in full.
V.

Motion to Withdraw and Replace Certain Exhibits
Finally,

Defendants

filed

a

joint

motion

to

withdraw

certain exhibits to their joint motion in limine and their joint
motion

for

summary

judgment

and

6

replace

those

exhibits

with

Plaintiffs predict that such a ruling would “be advocating
for hospitals to conceal the identity of all of their physicians
so as to escape all liability. The Court cannot allow a party
to contract away its liability.” (ECF No. 47-1, at 13). This
ruling does no such thing.
Hospitals that decide to use this
ruling as inspiration to contract out all of their services are
still potentially liable under the doctrine of apparent
authority.
Furthermore, those companies the hospital has
contracted with could also be liable if a plaintiff can
demonstrate that - despite whatever arrangement the contractor
may have entered into – the contractor controls their
“independent contractors” to such an extent that they are
properly considered their employees.
36

redacted versions.7

Defendants were alerted by Plaintiffs that

those exhibits contain personal identifying information, such as
Social Security Numbers and birthdates.

Pursuant to Federal

Rule of Civil Procedure 5.2 and the October 10, 2012 Scheduling
Order, such personal identifying information should have been
redacted.

Defendants

have

submitted

redacted

replace some of the offending documents.

versions

to

Plaintiffs have not

filed a response.
Exhibit 4 to the motion in limine was filed in four parts
totaling

nearly

200

pages.

contains only 17 pages.

The

proposed

redacted

exhibit

A cursory examination of the other

portions of Exhibit 4 reveals instances of personal identifying
information that was not marked for redaction.
at

30

(full

birthdate)).

Defendants

(ECF No. 49-7,

submitted

a

“redacted”

version of Dr. Olden’s deposition transcript which was part of
their motion in limine (Exhibit 11) and their motion for summary
judgment (Exhibit 6).

Review of the proposed redacted version

reveals nothing marked for redaction.
as

no

personally

identifying

This is understandable,

information

is

apparent.

The

motion will be granted and Defendants will be provided fourteen
(14) days from the date of this Order to provide a redacted

7

Upon the filing of the motion, the exhibits were placed
under seal.
37

version of the remaining portion of Exhibit 4 and to clarify why
Dr. Olden’s deposition transcript requires redaction.
VI.

Conclusion
For the foregoing reasons, the motion for summary judgment

filed by Defendant Weatherby Locums will be granted.

The motion

for summary judgment filed jointly by Defendants will be denied.
The motion to withdraw and replace documents filed jointly by
Defendants will be granted.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

38