Wallace v. Community Radiology, et al.
Filing
113
MEMORANDUM OPINION AND ORDER granting defendant Community Radiology's 99 MOTION for Summary Judgment and granting defendant Dr. Stephen Raskin's 101 MOTION for Summary Judgment. Because the court has determined that defendants are entit led to judgment in their favor on the grounds discussed herein, it has not reached the other arguments raised by Community Radiology and Dr. Raskin in support of their motions for summary judgment. Signed by Senior Judge David A. Faber on 4/18/2015. (cc: all counsel of record and any unrepresented party) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BLUEFIELD
JACQUELINE WALLACE,
Plaintiff,
v.
CIVIL ACTION No. 1:09-0511
COMMUNITY RADIOLOGY, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the court are motions for summary judgment filed by
defendants Community Radiology and Dr. Stephen Raskin.
No. 99, 101).
(Docs.
For the reasons explained more fully herein, those
motions are GRANTED.
I. Factual and Procedural Background.
This civil action arises out of an alleged misreading of a
mammogram in March 2007.
The case was originally filed in the
Circuit Court of McDowell County, West Virginia, on March 10,
2009.
Plaintiff alleges in her Complaint that defendants
incorrectly read her mammogram report and failed to diagnose her
with breast cancer.
On May 11, 2009, defendants removed the case
to this court, on the basis of diversity jurisdiction.
Except when specifically indicated, the following facts are
not in dispute.
In March 2007, Jacqueline Wallace, plaintiff
herein, reported feeling a new mass in her right breast to her
gynecologist, Dr. Bruce Lasker.
See Exhibit 14 to Defendant
Community Radiology's Motion for Summary Judgment (Silver Expert
Report).
Wallace was 56 years old at the time.
See id.
Dr.
Lasker ordered a bilateral mammogram which was taken on March 16,
2007.
See id.
The mammogram was performed at defendant
Community Radiology.
See Exhibit 1 to Community Radiology's
Motion for Summary Judgment.
Defendant Valery P. Sobczynski
interpreted plaintiff's mammogram and, by letter dated March 20,
2007, informed her that the mammogram showed "[n]o evidence of
cancer."
Id.
This letter was written on the letterhead of
Community Radiology and Dr. Stephen P. Raskin
See id.
The
letter also informed Wallace that:
"Some patients with breast
cancer can have normal mammograms.
Should you have a lump or
other change in your breast, contact your physician or other
healthcare provider for an examination without delay."
Id.
At the operative time period and through the date of his
deposition, Dr. Raskin was a board-certified radiologist.
See
Deposition of Stephen Raskin at 13 (Exhibits 2, 9, and 10 to
Community Radiology's Motion for Summary Judgment; Exhibit F to
Raskin's Motion for Summary Judgment).
For a time he also owned
Community Radiology but sold it between 1998 and 2001.
at 13-14.
See id.
Dr. Raskin did, however, stay on at Community
Radiology as an independent contractor.
See id. at 14.
The
relationship between Dr. Raskin and Community Radiology was
memorialized in a "Professional Services Agreement" dated
February 27, 2000.
See Exhibit 6 to Community Radiology's Motion
2
for Summary Judgment.
According to the Agreement, Dr. Raskin was
engaged by Community Radiology "to render full-time medical
services for [Community Radiology] . . . including but not
limited to administrative and professional services provided
through, by and at [Community Radiology].
Id. at p.3.
The
Agreement also states that Dr. Raskin "is and shall at all times
be acting and performing as an independent contractor."
p.10.
Id. at
Pursuant to § 3.1.8 of the Agreement, Dr. Raskin was to
"provide coverage from 8am to 5pm, Monday through Friday, and any
other hours required to meet the business needs of the center.
Radiologist shall also be expected to provide call as needed."
Id. at p.4.
The Agreement further provided Dr. Raskin with ten
weeks of vacation per year but vacation was to "be scheduled only
when it shall not unreasonably disrupt the Center's practice and
only after Radiologist has secured adequate coverage for his
absence.
The Radiologist is responsible for securing adequate
coverage for his absence and compensating the applicable covering
physician."
Id. at pp.7-8.
The relationship between Community
Radiology and Dr. Raskin ended sometime in 2009 or 2010.
See
Raskin Depo. at 15-16.
On June 23, 2006, Dr. Sobczynski entered into a "Provider
Services Agremeent" with a Texas corporation called Staff Care.
Exhibit 3 to Defendant Community Radiology's Motion for Summary
Judgment (hereinafter referred to as "Sobczynski Staff Care
3
Agreement").
Pursuant to the Sobczynski Staff Care Agreement,
Staff Care acted as an agent for its clients wishing "to arrange
for medical services on a Locum Tenens basis."
Id. at p.1.
A
locum tenens physician is one who provides temporary services and
generally describes a physician who fills in for another
physician on a temporary basis.1
Essentially, under the
Sobczynski Staff Care Agreement, Staff Care agreed to find work
for Dr. Sobczynski as a locum tenens physician.
Dr. Raskin was a client of Staff Care.
See Exhibit 5 to
Defendant Community Radiology's Motion for Summary Judgment.
Pursuant to Raskin's agreement with Staff Care, Staff Care was to
"provide Locum Tenens PROVIDER(s) acceptable to [Dr. Raskin]."
Id.
Staff Care was further supposed to "screen and reference"
all locum tenens providers, provide malpractice insurance
coverage for all locum tenens providers, and provide compensation
directly to the locum tenens provider.
Id.
Dr. Sobszynski was filling in for Dr. Raskin on a locum
tenens basis when he interpreted plaintiff's mammogram.
Raskin Depo. at 18.
See
He was paid by Staff Care for this work.
1
“Locum Tenens means `one filling an office for a time or
temporarily taking the place of another – used especially of a
doctor.’” McGhee v. United States, Civil Action No. 7:13-CV-00123,
2014 WL 896748, *1 n.6 (W.D. Va. Mar. 16, 2014) (quoting “Locum
Tenens.”
Merriam-Webster.com,
http://www.merriamwebster.com/dictionary/locum%20tenens (last viewed January 26,
2014)).
4
Raskin Depo. at 55-56; see also Exhibit 4 to Defendant Community
Radiology's Motion for Summary Judgment (Sobczynski payroll
records).
Staff Care is not a defendant to this lawsuit.
Wallace had her annual mammogram on December 17, 2007.
Exhibit 14.
See
That mammogram showed a mass and a subsequent biopsy
came back positive for cancer.
See id.
Wallace had a right breast lumpectomy.
On February 14, 2008,
See id.
As of April 3,
2008, five of thirteen lymph nodes showed metastatic breast
cancer.
See id.
Thereafter, Wallace underwent four cycles of
chemotherapy and, after finishing chemotherapy, radiation
therapy.
See id.
Plaintiff's radiology expert, Dr. Abbott Huang, stated that
he believed Wallace's tumor was visible on the March 2007
mammogram.
See Deposition of Abbott Huang at 57-58 (Exhibits 19-
21 and 23 to Community Radiology's Motion for Summary Judgment;
Exhibit D to Raskin's Motion for Summary Judgment); Exhibit 14.
According to Dr. Huang, an ultrasound should have occurred that
same day given the history of the mass.
58.
See Huang Depo. at 57-
Dr. Huang would have recommended a biopsy.
See id. at 58.
Community Radiology's surgical oncology expert, Dr. Charles
Goldman, opined that plaintiff would have undergone the same
surgical and medical treatment whether a diagnosis of breast
cancer was made in March 2007 or December 2007.
See Exhibit 13
to Defendant Community Radiology's Motion for Summary Judgment
5
(Goldman Expert Report).
Dr. Daniel Silver, Community
Radiology's medical oncology expert, also concluded that
Wallace's treatment for breast cancer was the same as it would
have been had she been diagnosed in March 2007.
See Exhibit 14.
Community Radiology's expert in radiology, Dr. Dennis
Whaley, opined as follows:
4.
Based upon my education training, experience, and a
review of the records in this case it is my opinion
that Dr. Sobczynski met the applicable standard of care
in his interpretation of the mammogram films taken of
Jacqueline Wallace on March 16, 2007, and that no act
or omission of Dr. Sobczynski proximately caused or
substantially contributed to the loss of Jacqueline
Wallace's alleged injuries.
5.
It is my opinion that the images taken of Jacqueline
Wallace’s right breast on March 16, 2007 did not reveal
a detectible malignancy, and Dr. Sobczynski
appropriately read the study as negative. It is
further my opinion that it is not a general
radiologist’s obligation or duty [to] order additional
studies to work up a palpable mass. Dr. Sobczynski
appropriately sent a copy of the mammogram report to
Dr. Lask[e]r, the ordering physician, who was aware of
the mass and could have ordered additional studies if
he felt they were necessary. It is also my opinion
that Community Radiology appropriately sent a letter to
Mrs. Wallace stating that some patients with breast
cancer can have normal mammograms and that an
examination without delay should be performed by a
physician if a lump is felt, which Ms. Wallace did not
do. Finally, it is my opinion that Dr. Raskin did not
have any obligation or duty to review Dr. Sobczynski’s
interpretations of mammograms. Dr. Sobczynski was a
board certified radiologist, who was qualified to
review mammograms. Likewise, no agents or employees of
Community Radiology had any obligation to review Dr.
Sobczynski’s interpretation of mammograms.
Exhibit 15 to Community Radiology's Motion for Summary Judgment
(Whaley Expert Report).
6
Elizabeth Davis, R.N., was identified as an expert witness
on plaintiff's behalf.
See Exhibit 11 to Community Radiology's
Motion for Summary Judgment.
Regarding the expert opinions she
proposed to tender, Ms. Davis testified at her deposition:
Q:
And you’re not, as I understand it, going to testify at
trial that her treatment would have been any different,
if her tumor had been diagnosed earlier. Correct?
A:
Correct.
Q:
Okay. And you’re not going to testify that she would
have needed - would not have needed Adriamycin or would
not have needed Herceptin if she had been diagnosed
earlier. Correct?
A:
Correct.
* * *
Q:
I just want to make sure that I understand – that I’m
clear on this: You’re not going to come to trial and
testify about the duty or obligation of Community
Radiology, or anyone associated with Community
Radiology, as far as their role in the mammogram or the
imaging. Is that correct?
A:
That is - that is correct.
Q:
And you’re not going to testify regarding whether or
not Dr. Sobczynski read the mammogram correctly or
incorrectly. Is that a fair statement?
A:
Yes, ma’am, it is.
Q:
You’re not going to offer any opinions about Dr.
Sobczynski’s ability to interpret mammograms correctly.
Would that be a fair statement?
A:
Yes, ma’am.
Q:
You’re not going to offer any opinion regarding whether
or not there was a delay in diagnosis of Ms. Wallace’s
breast cancer, are you?
7
A:
No, I am not.
Q:
Are you going to offer any opinion regarding when the
cancer started?
A:
No, ma’am.
Q:
I think I’ve already asked this, but you’re not going
to offer any opinion as to whether or not treatment
would have differed in any way if it had been diagnosed
earlier?
A:
No.
Q:
You’re not going to offer any kind of medical causation
opinions. Correct?
A:
Correct.
Q:
Are you going to offer any opinions regarding life
expectancy or reoccurrence rates, other than what’s in
the e-mail from Ms. Wallace?
A:
No, I’m not independently qualified to do that, other
than to consult the CDC for normal life expectancy
rates.
* * *
Q:
And, just so I’m clear, when you refer to the expenses,
you’re not going to come to trial and testify as to
whether any of those expenses were incurred as a result
of any negligence. Correct?
A:
Correct.
I’m using that as a cost source.
* * *
Q:
And, again, it’s not your opinion - you’re not going
to testify that Adriamycin would not have been needed
if she had had an earlier diagnosis. Correct?
A:
Correct.
Q:
And that would be the same with the Taxol or the
Arimidex or the Herceptin? You are not going to
testify that those would not have been needed if there
had been an earlier diagnosis. Correct?
8
A:
Correct.
* * *
Q:
And, again, the items that you had set forth in that
Life Care Plan, although you have them listed, you’re
not saying that they’re causally related to any
deviation from the standard of care by Dr. Sobczynski,
or anyone else. Correct?
A:
Correct. I was listing her regimen as it was
unfolding, basically as she was receiving that level of
care with the specific medications and the follow-up
schedules.
Q:
And you would defer to a physician to determine - to
testify whether any of that was causally related to the
alleged negligence. Correct?
A:
Correct.
Q:
A:
* * *
Ms. Davis, I just have a few more questions, I think.
You’re not going to offer any opinions regarding
whether the axillary node dissection was necessary
because of the delay. Correct?
Correct.
Deposition of Elizabeth Davis at 26-30, 34, and 39 (Exhibits 17
and 18 to Community Radiology's Motion for Summary Judgment).
Plaintiff’s expert, Dr. Huang, believes that Dr. Sobczynski
was negligent in misreading plaintiff’s March 2007 mammogram as
negative and that the standard of care required him to order an
ultrasound.
See Huang Depo. at 77.
However, with respect to
the specific liability of Community Radiology and Dr. Raskin, Dr.
Huang found none:
Q:
Are you critical of any other medical providers besides
Dr. Sobczynski who read the mammogram on March 16,
2007?
9
A:
What do you mean by “critical”?
Q:
Do you have any opinions that any other medical
providers deviated from the standard of care besides
Dr. Sobczynski who read the mammogram on March 16.
2007?
* * *
A:
Okay. Let me look. I have a report dated March 16,
2007 and it is Dr. Valery Sobczynski. I guess that’s yes.
Q:
So is he the only medical provider that you have
criticisms of or believe deviated from the standard of
care in this case?
A:
Yes, I think he is the only one.
* * *
Q:
On those occasions where you had a Locum Tenens
physician come in, do you, as, you know, a radiologist
within this practice go back and reread every single
study that they read while they were here?
A:
No, we don’t do that.
Q:
The standard of care doesn’t require that, does it?
A:
I don’t know if there is a standard of care for it.
don’t know the answer to that.
I
* * *
Q:
So to be clear, you are not going to come to trial and
offer any opinions related to Dr. Raskin?
A:
Interpretation, no.
Q:
Likewise, you are not going to come to trial and
testify that Dr. Raskin did something wrong or
Community Radiology did something wrong in bringing Dr.
Sobczynski on as a Locum Tenens physician, correct?
A:
I didn’t know he - I wasn’t a hundred percent sure he
was a Locum Tenens so as far as them bringing him on, I
10
don’t have any problem with them bringing him on.
assumed they needed Locums work.
I
* * *
Q:
Do you have any criticisms of the technique that was
used or the quality of the mammograms?
A:
All of them are just - you want me to go through all of
them?
Q:
No. The one that is at issue.
A:
They are fine.
The quality is fine.
* * *
Q:
So you wouldn’t have expected someone to go behind Dr.
Sobczynski and read or reinterpret his work once he had
dictated his reports or read the films, correct?
A:
Unless somebody asked someone else to read it, no.
Sometimes you get asked to read something somebody else
read, but it would have been someone to come to that
person to read it. It wouldn’t have been him doing it
just off the cuff.
Q:
You wouldn’t expect someone from Community Radiology to
look at Dr. - on March 17, or 16, whenever Dr.
Sobczynski looked at that film and he gave his
interpretation, then you wouldn’t expect someone else
to go behind him to look at that to see if he was right
or wrong?
A:
Unless someone asked you to do it I would not expect
it.
Q:
Okay. You don’t do that with your colleagues, do you?
You don’t go behind them and say, I’m just going to
check and make sure he is right today?
* * *
A:
No. Outside of QA, we don’t normally do it.
just on a QA basis.
* * *
11
We do it
Q:
It is not the duty of a radiology technologist to
interpret mammograms, correct?
A:
That is correct, yes.
Huang Depo. at 56-57, 73-80, 86-89.
Dr. Huang further testified regarding the extent of the
expert opinion he intended to offer.
Q:
Do you believe you are qualified to render opinions
regarding the oncology treatment for Mrs. Wallace’s
cancer for her prognosis?
A:
No.
Q:
So I take it then that you will defer to a medical
oncologist or surgical oncologist to offer opinions
regarding causation in this case, correct?
A:
Correct.
* * *
Q:
So my question is are you going to come to trial and
say that if the mammogram had been read differently in
March of 2007 it would have changed her outcome or her
treatment in any way or are you going to rely on an
oncology [expert]?
A:
I will rely on an oncologist.
* * *
Q:
And it’s not your intention to come to trial and offer
any opinions related to how delayed - alleged delay and
misreading the mammogram caused her any damages and
that is probably a bad question, but you will not come
to trial and say her cancer was more advanced; is that
correct? You will defer?
A:
More advanced to what?
Q:
You will defer to a medical oncologist or surgical
oncologist to give those opinions?
12
A:
When you say “more advanced,” more advanced toward
what? I don’t understand what you are saying to me.
Q:
Was it a different stage, would the treatment be any
different?
A:
I don’t know anything about treatment so I will not
comment about treatment.
Q:
Again, you will defer to a surgical oncologist or
medical oncologist with respect to that, correct?
A:
I would defer to someone that has expertise in that.
don’t have expertise in that.
Q:
Who would that be, an oncologist?
A:
Likely be an oncologist, yes.
I
* * *
Q:
You don’t intend to offer an opinion about the
biological makeup of the tumor if it would have been
different at one point as opposed to another?
A:
No, I will not.
Q:
It’s my understanding that you do not intend to offer
any opinion as to the effect of any alleged delay on
the treatment that she received; is that correct?
A:
Say that one more time.
Q:
No. You are alleging that - or your opinion is that
the March 2007 mammogram was misread?
A:
Correct.
Q:
And, therefore, it was no - the cancer was not
diagnosed until the December mammogram, correct?
A:
Yes.
Q:
Are you going to offer any opinion that the nine month
period of time changed the nature or the type of
treatment that Mrs. Wallace would have received?
13
Alleged defect?
A:
No. Like I said, I don’t know about treatment so I
would not. I won’t opine on that.
Q:
Do you intend to offer any opinions regarding her
prognosis or recurrence rate?
A:
No.
Q:
Do you intend to offer any opinions as to her damages,
how much she incurred as a result of or how much her
medical bills were a result of a delay in diagnosing
cancer?
A:
No.
Q:
Do you intend to offer any opinions on her future care
needs?
A:
No.
Q:
I believe you might have been asked this, but you are
not offering life expectancy opinions, correct?
A:
That’s correct.
Huang Depo. at 27-29, 77-78, 91-92.
Both Community Radiology and Dr. Raskin have moved for
summary judgment.
Plaintiff filed a response in opposition
arguing that summary judgment is inappropriate because there are
disputed issues of material fact.
Those motions are ripe for
review.
II. Summary Judgment Standard.
Rule 56 of the Federal Rules of Civil Procedure provides:
The judgment sought shall be rendered
forthwith if the pleadings, depositions,
answers to interrogatories, and
admissions on file, together with the
affidavits, if any, show that there is
14
no genuine issue as to any material fact
and that the moving party is entitled to
a judgment as a matter of law.
The moving party has the burden of establishing that there is no
genuine issue as to any material fact.
477 U.S. 317, 323 (1986).
Celotex Corp. v. Catrett,
This burden can be met by showing that
the nonmoving party has failed to prove an essential element of
the nonmoving party's case for which the nonmoving party will
bear the burden of proof at trial.
Id. at 322.
If the moving
party meets this burden, according to the United States Supreme
Court, "there can be 'no genuine issue as to any material fact,'
since a complete failure of proof concerning an essential element
of the nonmoving party's case necessarily renders all other facts
immaterial."
Id. at 323.
Once the moving party has met this burden, the burden
shifts to the nonmoving party to produce sufficient evidence for
a jury to return a verdict for that party.
The mere existence of a scintilla of
evidence in support of the plaintiff's
position will be insufficient; there
must be evidence on which the jury could
reasonably find for the plaintiff. The
judge's inquiry, therefore, unavoidably
asks whether reasonable jurors could
find, by a preponderance of the
evidence, that the plaintiff is entitled
to a verdict . . . .
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
"If
the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted."
15
Id. at 250-51.
III. Analysis.
“In West Virginia, the Medical Professional Liability Act
(“MPLA”) controls medical malpractice claims.”
Dreenen v. United
States, 2010 WL 1650032, *2 (4th Cir. 2010); Callahan v. Cho, 437
F. Supp. 2d 557, 561 (E.D. Va. 2006); Stanley v. United States,
321 F. Supp. 2d 805, 808-09 (N.D.W. Va. 2004); Osborne v. United
States, 166 F. Supp. 2d 479, 496-97 (S.D.W. Va. 2001); Bellomy v.
United States, 888 F. Supp. 760, 764-65 (S.D.W. Va. 1995).
The MPLA provides that in order to bring such a claim, a
plaintiff must prove that:
(1) The health care provider failed to exercise
that degree of care, skill and learning required
or expected of a reasonable, prudent health care
provider in the profession or class to which the
health care provider belongs acting in the same
or similar circumstances; and
(2) Such failure was a proximate cause of the
injury or death.
W. Va.Code § 55-7B-3(a).
When a medical negligence claim
involves an assessment of whether the plaintiff was properly
diagnosed and treated, or whether the health care provider was
the proximate cause of the plaintiff's injuries, expert testimony
is required.
Banfi v. American Hosp. for Rehabilitation, 539
S.E.2d 600, 605-06 (W. Va. 2000).2
2
“West Virginia law stipulates that medical experts must
establish the applicable standard of care in medical malpractice
cases. W. Va. Code § 55-7B-7(a). The only exceptions to this
requirement, where the breach of duty is so gross as to be apparent
or the standard is within the common knowledge of lay jurors, are
16
According to Community Radiology and Dr. Raskin,
plaintiff cannot prevail on her MPLA claim because she cannot
establish the essential elements of her case.
Specifically, they
contend that they are entitled to judgment in their favor
because:
1.
Plaintiff has failed to establish that Community
Radiology breached any duty to plaintiff.
2.
Plaintiff has failed to establish that Dr. Raskin
breached any duty to plaintiff.
3.
Dr. Sobczynski was not an agent of Community
Radiology or Dr. Raskin.
4.
There is no evidence that the alleged negligence in
this case was the proximate cause of plaintiff's
injuries.
5.
Plaintiff has failed to join an indispensable party.
Dr. Huang’s opinion is sufficient to raise a disputed
issue of material fact as to whether Dr. Sobczynski "failed to
exercise that degree of care, skill and learning required or
expected of a reasonable, prudent health care provider."
However, even assuming that Community Radiology and Dr. Raskin
could be somehow vicariously liable for Dr. Sobczynski's
negligence,3 there is no evidence that any alleged failure on the
the same as the exceptions to the medical certificate requirement.”
Callahan v. Cho, 437 F. Supp. 2d 557, 564 (E.D. Va. 2006).
3
The court notes that plaintiff has proffered no expert
testimony which even suggests that Community Radiology or Dr.
Raskin committed any independent acts of negligence. Indeed, Dr.
Huang testified that he believed that Dr. Sobczynski was the only
medical provider who deviated from the standard of care. See Huang
17
part of Dr. Sobczynski was a proximate cause of plaintiff's
injuries.
As noted above, such causation ordinarily must be
established by expert testimony.
Hicks v. Chevy, 358 S.E.2d 202,
205 (W. Va. 1987) (“Proof that the negligence or want of
professional skill was the proximate cause of the injury of which
the plaintiff complains must ordinarily be by expert testimony as
well.”); see also Farley v. Shook, 629 S.E.2d 739, 745 (W. Va.
2006) (finding summary judgment proper in medical malpractice
case where plaintiffs’ expert “was unable to link any of the[]
alleged breaches in care to the ultimate outcome”); Short v.
Appalachian OH-9, Inc., 507 S.E.2d 124, 131-32 (W. Va. 1998)
(finding failure to produce expert testimony on causation in
opposition to summary judgment fatal).
Depo. at 57. Therefore, the negligence of Community Radiology and
Dr. Raskin, if any, turns on their relationship with Dr.
Sobczynski. Significant portions of defendants’ briefs, as well as
the majority of plaintiff’s response in opposition, focus on
whether Dr. Sobczynski was an agent, actual or apparent, of
Community Radiology and/or Dr. Raskin.
Any argument that Dr.
Sobczynski was an apparent agent is foreclosed by West Virginia
Code § 55–7B–9(g). That statute provides that “(a) health care
provider may not be held vicariously liable for the acts of a
non-employee pursuant to a theory of ‘ostensible agency’ unless the
alleged agent does not maintain professional liability insurance
covering the medical injury which is the subject of the action in
the aggregate amount of at least one million dollars.”
The
evidence shows that Dr. Sobczynski was insured, via his arrangement
with Staff Care, in the amount of $1 million per occurrence.
Accordingly, as to the plaintiff's claims of ostensible agency, the
defendants' motions for summary judgment are GRANTED.
However, because the actual agency argument is not disposed of
quite as easily the court declines to reach the issue.
18
Plaintiff has offered no evidence or testimony, expert or
otherwise, establishing that any negligence by Dr. Sobczynski was
the proximate cause of her injuries.
For example, there is no
evidence in the record to show that plaintiff’s treatment options
would have been different had she been diagnosed in March 2007.
See Totten v. Adongay, 337 S.E.2d 2, 8 (W. Va. 1985)
(distinguishing cases where causation is “reasonably direct or
obvious” as obviating need for expert medical testimony).
Without any evidence showing how a delay in diagnosis and
treatment caused or contributed to her injuries, plaintiff cannot
meet her burden to show that Dr. Sobczynski's alleged negligence
was a proximate cause of her injuries.
Furthermore, without this
type of evidence a jury would have to make a guess as to how
plaintiff's injuries were exacerbated by Dr. Sobczynski's alleged
negligence.
This is exactly why expert testimony regarding
proximate causation is necessary.
Just recently, the West Virginia Supreme Court of Appeals
decided a case in which a lack of expert medical testimony as to
causation was fatal to a medical negligence claim.
See Dellinger
v. Pediatrix Medical Group, P.C., 750 S.E.2d 668, 677-78 (W. Va.
2013).
In affirming the lower court’s grant of summary judgment
for a defendant doctor, the court noted:
Petitioner argues that proximate causation was an
issue for the jury, despite Dr. Weber
[plaintiff’s medical expert] conceding that he
could not state to a reasonable degree of
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probability that Amber would have survived if
intubated earlier and his commensurate inability
to “quantify” any worsening in her condition
caused by a purported delay in intubation.
* * *
[P]etitioner herein has provided not a single
medical witness who offered testimony casually
connecting Amber’s death to Dr. Caceres’ alleged
negligent failure to intubate earlier. In fact,
the only witness whose testimony petitioner
offered in opposition to summary judgment
expressly stated he could not proximately relate
Amber’s death to any actions of Dr. Caceres to a
reasonable degree of medical probability:
Q:
You cannot say more likely than not that
this patient would have lived if the
blood gas value would have been given to
Dr. Caceres earlier?
A:
That’s correct.
While petitioner urges that the jury may
nonetheless infer proximate cause notwithstanding
her lack of medical testimony on this issue, we
find there is quite simply nothing upon which a
jury may make such an inference beyond abject
speculation.
Id. at 676-77 (emphasis in original).
As in Dellinger, plaintiff
has failed to meet her burden to establish proximate cause.
Both
of her experts confirmed that they were not able to render an
opinion on proximate causation and this is not the type of case
where proximate causation is “reasonably direct or obvious.”
Faced with her failure of proof on this issue, plaintiff
points the court to a case from Texas which, according to her,
suggests that the court should allow the issue to go to the jury.
See Consultants in Radiology v. S.K. and C.K., No. 02-14-0009120
CV, 2014 WL 2922301 (Ct. App. Tex. 2014).
In that case, the
court was reviewing the sufficiency of an expert report under
Texas law, specifically Tex. Civ. Prac. & Rem. Code Ann. §
74.351.
That code section requires a plaintiff in a health care
liability claim to present an expert report that, among other
things, “establish[es] the causal relationship between the
failure and the harm alleged.”
§ 74.351.
Id.
Tex. Civ. Prac. & Rem. Code Ann.
As in this case, the plaintiffs had been
diagnosed with breast cancer but contended that defendants should
have diagnosed the breast cancer at an earlier stage.
See
Consultants in Radiology v. S.K. and C.K., No. 02-14-00091-CV,
2014 WL 2922301, *1 (Ct. App. Tex. 2014).
In affirming the lower
court’s ruling which found the expert reports sufficient as to
causation, the Texas appellate court concluded that the expert
reports in question “made a good faith effort at informing the
trial court and Appellants of the causal relationship between the
[defendants]’ failures and the harm alleged by [plaintiffs].” Id.
at 5.
However, the expert report in that case – which involved a
longer period of delay in diagnosing cancer than is alleged here
–
clearly laid out the ramifications of the delay in diagnosis
in treatment.
For example, the expert report in the Texas case
noted, among other things that:
1.
Had the defendant doctor “properly recommended a
biopsy” following the earlier mammogram, “more
likely than not” it would have resulted in plaintiff
21
being diagnosed with DCIS, instead of Stage IIIC
invasive ductal carcinoma.
2.
DCIS is the most treatable form of breast cancer and
carries the best prognosis.
3.
“Had [plaintiff] been properly diagnosed shortly
after the mammogram, or shortly after the
recommended follow-up period, her treatment would
have most likely been lumpectomy with radiation or
mastectomy surgery. Chemotherapy is not required
for DCIS, and [plaintiff]’s prognosis would have
been excellent. . . . Quite simply, with timely
follow-up exams and biopsy, [plaintiff] would likely
not have required chemotherapy and/or died from
breast cancer.”
Id. at 4.
Plaintiff’s reliance on the Consultants in Radiology case
misses the mark because in this case there is no expert report
that lays out any consequences of a delay in her diagnosis and
treatment.
Furthermore, to the extent that plaintiff seems to
suggest that the Texas case allows the court to infer a period of
delay in diagnosing breast cancer is always a proximate cause of
a plaintiff’s injuries, the court declines to do so because such
an inference would be “abject speculation.”
For these reasons, plaintiff’s failure to offer evidence
sufficient to establish a prima facie case of liability under W.
Va. Code § 55-7B-3 mandates entry of summary judgment in
defendants’ favor.
IV. Conclusion.
Based on the foregoing, defendants’ motions for summary
judgment are GRANTED.
Because the court has determined that
22
defendants are entitled to judgment in their favor on the grounds
discussed herein, it has not reached the other arguments raised
by Community Radiology and Dr. Raskin in support of their motions
for summary judgment.
The Clerk is directed to mail copies of this Memorandum
Opinion and Order to all counsel of record.
It is SO ORDERED this 18th day of April, 2016.
ENTER:
David A. Faber
Senior United States District Judge
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