Graham v. Dhar et al

Filing 94

MEMORANDUM OPINION AND ORDER: For the reasons expressed herein, defendant BRMCs 77 motion for summary judgment is GRANTED, and the Count III claim by plaintiff against defendant BRMC is thus DISMISSED with prejudice. Signed by Senior Senior Judge David A. Faber on 12/19/2019. (cc: counsel of record) (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
JANET GRAHAM, Administratrix of
The Estate of Edna Marie McNeely,
Plaintiff,
v.

CIVIL ACTION NO. 1:18-00274

SUNIL KUMAR DHAR, M.D.,
BLUEFIELD CLINIC COMPANY, LLC,
d/b/a BLUEFIELD CARDIOLOGY, and,
BLUEFIELD HOSPITAL COMPANY, LLC,
d/b/a BLUEFIELD REGIONAL MEDICAL CENTER,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is defendant Bluefield Hospital
Company, LLC, d/b/a Bluefield Regional Medical Center (“BRMC”)’s
motion for summary judgment.

ECF No. 77.

For the reasons that

follow, the motion for summary judgment is GRANTED, and
plaintiff’s remaining claim in the Complaint against defendant
BRMC – Count III - is DISMISSED with prejudice.
I.

Factual and Procedural Background
On October 6, 2017, plaintiff Janet Graham (hereinafter

“plaintiff”), Administratrix of the Estate of Edna Marie
McNeely, filed a medical professional liability lawsuit against
BRMC and co-defendant, Dr. Sunil Kumar Dhar, relative to Edna
Marie McNeely’s (hereinafter “patient” or “Mrs. McNeely”)

hospitalization at BRMC in March of 2016.

See ECF No. 1-1.

Plaintiff’s Complaint originally contained two (2) counts
against BRMC.

Id.

Plaintiff’s stated claims against BRMC were:

(1) for medical negligence while Mrs. McNeely was a patient at
BRMC in March of 2016 (Count III); and (2) for violation of the
West Virginia Consumer Credit and Protection Act (Count IV).
Id.

Only Count III of plaintiff’s Complaint — the medical

negligence claim — currently remains against BRMC, as Count IV
was dismissed by the plaintiff. 1

Plaintiff’s Complaint in Count

III alleges that, “as a direct and proximate result of the . . .
negligence of defendant BRMC, the decedent sustained severe
physical injuries, tremendous suffering and pain . . . and other
compensable injuries and damages.”

Id. at ¶ 49.

On April 12, 2019, plaintiff timely filed Rule 26(a)(2)(A)
and (B) Expert Disclosures in this matter.

See ECF No. 54.

Plaintiff named Scott J. Denardo, M.D., as her liability expert
in this matter.

Dr. Denardo authored a preliminary report in

this matter and issued opinions regarding BRMC’s deviations in
the standard of care.

Dr. Denardo testified that BRMC deviated

from the applicable standard of care in the following three
ways: (1) for not mentoring defendant Sunil Kumar Dhar, M.D.,
Pursuant to an agreed stipulation by the parties, Count IV was
dismissed with prejudice on July 24, 2018. See ECF No. 38.
1

2

due to the amount of procedures he had performed prior to Edna
McNeely’s procedure in March 2016; (2) for not declaring Edna
McNeely’s circumstances as a sentinel event, requiring peer
review; and (3) for failing to comply with the West Virginia
Cardiac Catheterization Standards related to patient transfer. 2
See ECF No. 78-2 at ¶¶ 7, 9.

At his deposition, Dr. Denardo was

questioned by BRMC’s counsel as to his opinions contained in his
preliminary report relating to BRMC’s breaches of the standard
of care.

The West Virginia Cardiac Catheterization Standards state, in
relevant part, that “[a]ll applicants proposing to provide
Therapeutic Cardiac Catheterization services without on-site
Cardiac Surgery services must demonstrate all of the following:
. . . (7) There must be formalized written protocols in place
for immediate (within 1 hour) and efficient transfer of patients
to a cardiac surgical facility . . . . The one-hour time period
may only be extended by the board for geographically remote
facilities.” See https://hca.wv.gov/certificateofneed/
Documents/CON_Standards/CardiacCath.pdf, at ¶ IV.C.7.
2

The Standards explain that the transfer time is calculated
as “[t]he time from when the referring facility initiates
contact with the receiving facility . . . to the time the
patient arrives at the receiving facility, including the actual
transport time.” Id. at ¶ 1.F.
The record contains no evidence that the one-hour time
period was extended for BRMC by the West Virginia Health Care
Authority Board due to BRMC’s location in a geographically
remote facility. Therefore, for the purposes of this summary
judgment motion, the court will assume that the standard of care
applicable to BRMC was the standard transfer time of one hour.
3

BRMC’s counsel first asked the following question related
to Dr. Denardo’s opinion that BRMC deviated from the applicable
standard of care by not mentoring defendant Dr. Dhar:
Q:

Okay. And you’d agree with me that whether Dr. Dhar
was mentored or not did not play an ultimate role in
this case, did it?

A:

Yes.

See ECF No. 81-2 at p. 74, lines 19-22.
Second, BRMC’s counsel questioned Dr. Denardo with respect
to his opinion regarding BRMC’s deviation in the standard of
care for not declaring Edna McNeely’s circumstances as a
sentinel event, requiring peer review:
Q.

And then on Page 5 of your report, Paragraph B there,
it talks about peer review for PCI procedures, and
whether peer review was conducted on Ms. McNeely's
case or not. You would certainly agree with me that
whether peer review was conducted after this case or
not played no role in her death?

A.

Well, conceptually, peer review, one of the major
points is to avoid future complications. So if a
peer reviewed process is in this place, it would
diminish the chances of a bad outcome. I think that's
the whole intent.

Q.

Right. But the -- they couldn't have peer reviewed Ms.
McNeely's case . . . until after she left the hospital
. . . and died. Correct?

A:

Right. Right. Right.

Q:

So whether they, in fact, peer reviewed this case or
not did not play a role in her death. You’d agree
with that?
4

A:

True.

See id. at p. 77, lines 9-24, p. 78, lines 1-6.
Third, BRMC’s counsel questioned Dr. Denardo regarding his
opinions on Mrs. McNeely’s probability of survival had she been
transferred sooner from BRMC.
Q:

Well, you know, ultimately that gets to the -- are you
able to ascribe any of these probabilities in terms of
percentages?

A.

Well, I thought about that. I think that if she -I've thought about it in different time points. For
example, at 9:30 in the evening, I think her chance of
survival was at least 50 percent or more had she been
transferred right at that point and aggressively
transfused. And in my mind -- and this is not based
on any research article, but just kind of based on my
experience. I think about every hour, her chance of
survival decreased by about 10 percent. So at 10:30,
it was more like 40 percent, at 11:30, 30 percent…

See id. at p. 67, lines 13-24, p. 68, line 1.
The record reflects that the request to transfer Mrs.
McNeely was made at 9:35 p.m., see ECF No. 81-3, but that she
was not transferred until 12:24 a.m. the next day and did not
arrive at Carilion Roanoke Memorial Hospital until 12:53 a.m.
See ECF No. 81-4.
Lastly, in his deposition, Dr. Denardo testified that his
written report contains all of his opinions against BRMC.
Specifically, Dr. Denardo answered as follows:
Q:

With regard to the report that you’ve got in front of
you, the report that you prepared dated April 12,
5

2019, does this contain all of the opinions that you
intend to offer against Bluefield Regional Medical
Center[?]
A:

Unless new information comes to light.

Q:

But as we sit here now, you’re bound by the opinions
in this report:

A:

Yes.

See ECF No. 81-2 at p. 78, lines 15-24, p. 79, line 1.
On October 21, 2019, defendant BRMC filed a Motion for
Summary Judgment.

ECF No. 77.

BRMC argues that plaintiff has

failed to present expert testimony on causation with respect to
BRMC, which is required by W. Va. Code §55-7B-3, and therefore
plaintiff has failed to make a prima facie case against BRMC.
See ECF No. 78.

The issue has been fully briefed by plaintiff

and BRMC, and is ripe for review by the court.
II.

Governing Law
A.

Summary Judgment Standard

In evaluating summary judgment motions, Rule 56(a) of the
Federal Rules of Civil Procedure provides that “[t]he court
shall grant summary judgment if the movant shows that there is
no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.”

Material facts are

those necessary to establish the elements of a party’s cause of
action.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
6

(1986).

A genuine issue of material fact exists if, in viewing

the record and all reasonable inferences drawn therefrom in the
light most favorable to the non-moving party, a reasonable juror
could return a verdict for the non-movant.

Id.

The moving party has the burden of establishing that there
is an absence of evidence to support the nonmoving party’s case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

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.
If the moving party meets its burden, then the non-movant
must set forth specific facts that would be admissible in
evidence that demonstrate the existence of a genuine issue of
fact for trial.
B.

Id. at 322-23.

Standards for Medical Negligence Claims

“In West Virginia, the Medical Professional Liability Act
(“MPLA”) controls medical malpractice claims.”
7

Wallace v. Cmty.

Radiology, 2016 WL 1563041, at *6 (S.D.W. Va. Apr. 18, 2016)
(Faber, J.) (citing Dreenen v. United States, 2010 WL 1650032,
at *2 (4th Cir. 2010)).

Pursuant to the MPLA, in order to make

a prima facie case of medical negligence, a plaintiff must
demonstrate both a breach in the standard of care and that the
breach was a proximate cause of the injury or death.
Specifically, W. Va. Code § 55-7B-3 states as follows:
(a)

The following are necessary elements of proof
that an injury or death resulted from the failure
of a health care provider to follow the accepted
standard of care:
(1)

(2)
(b)

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
Such failure was a proximate cause of
the injury or death.

If the plaintiff proceeds on the "loss of chance"
theory, i.e., that the health care provider's
failure to follow the accepted standard of care
deprived the patient of a chance of recovery or
increased the risk of harm to the patient which
was a substantial factor in bringing about the
ultimate injury to the patient, the plaintiff
must also prove, to a reasonable degree of
medical probability, that following the accepted
standard of care would have resulted in a greater
than twenty-five percent chance that the patient
would have had an improved recovery or would have
survived.

W. Va. Code § 55-7B-3.
8

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.

Wallace,

2016 WL 1563041, at *7.
III. Analysis
According to BRMC, plaintiff cannot prevail on her MPLA
claim against BRMC because she cannot establish the essential
elements of her case – namely, that plaintiff cannot establish
by expert testimony that BRMC’s alleged breach of care was a
proximate cause of the patient’s death.

BRMC alleges that

nowhere in his report did Dr. Denardo provide expert testimony
regarding causation relevant to BRMC.

Plaintiff counters that

Dr. Denardo’s opinion relating to the patient’s probability of
survival had she been transferred sooner from BRMC, given in his
deposition testimony, creates a genuine issue of material fact
as to BRMC being a proximate cause pursuant to the “loss of
chance” theory, and thus summary judgment is inappropriate.
BRMC responds that Dr. Denardo’s discussion of the patient’s
probability of survival should not be understood as being
offered against BRMC, and reasserts that Dr. Denardo confirmed
that all of his opinions against BRMC can be found in paragraphs
7 and 9 of his expert report dated April 12, 2019.
9

For the court to grant summary judgment in favor of
defendant BRMC, the court must find that Dr. Denardo provided no
opinion testimony that any of BRMC’s breaches of the standard of
care were a proximate cause of the patient’s injury or death.
See W. Va. Code §§ 55-7B-3, 55-7B-7.

The court finds that,

relating to the first two alleged breaches of the standard of
care by BRMC - (1) not properly mentoring Dr. Dhar; and (2) not
declaring Edna McNeely’s circumstances as a sentinel event,
requiring peer review – there not only is no expert testimony of
causation, but Dr. Denardo in fact testified at his deposition
that BRMC’s breaches were not proximate causes of the patient’s
death.

Dr. Denardo agreed that BRMC’s improper mentoring of Dr.

Dhar was not a proximate cause of the patient’s injuries, see
ECF No. 81-2 at p. 74, lines 19-22, and agreed that because peer
review only occurs after the incident has concluded, the lack of
peer review could not be a proximate cause here either.
at p. 77, lines 9-24, p. 78, lines 1-6.

See id.

Therefore, as to these

two alleged breaches of the standard of care, plaintiff has not
proved an essential element of her claim of medical negligence,
and summary judgment for defendant BRMC is appropriate. 3
Plaintiff, in her Response to BRMC’s Motion to Dismiss, seems
to concede that she has put forward no expert testimony of
proximate causation regarding either BRMC’s lack of proper
mentoring or the lack of peer review. See ECF No. 81. Instead,
3

10

That leaves the court with determining whether there is any
genuine issue of material fact relating to BRMC’s third breach
of the standard of care – that BRMC failed to comply with the
one-hour catheterization standard for patient transfer.
Assuming without deciding that Dr. Denardo’s deposition
testimony as to Mrs. McNeely’s probability of survival was
offered against BRMC and does qualify as “loss of chance” expert
testimony pursuant to W. Va. Code § 55-7B-3(b), summary judgment
is still warranted in defendant BRMC’s favor because Dr.
Denardo’s testimony does not result in BRMC being responsible
for a greater than 25% loss of chance of survival. 4
According to the loss of chance testimony given by Dr.
Denardo, every hour from 9:30 p.m. onward that the patient was
not transferred cost the patient a 10% loss in chance of
survival, starting from an approximate 50% chance of survival at
9:30 p.m.

The decision to transfer Mrs. McNeely was made at

9:35 p.m., when she had an approximate 49.17% chance of

plaintiff presents counterargument only as to why there is
expert testimony of proximate cause involving BRMC’s alleged
breach of the standard of care for patient transfer. See id.
Because the court has determined that BRMC is entitled to
judgment in their favor on the ground discussed herein, it has
not reached the other defenses raised by BRMC in support of its
motion for summary judgment.
4

11

survival. 5

If BRMC had adhered to the standard of care for

catheterization patient transfer of ensuring patient arrival at
a cardiac surgical facility within one hour, Mrs. McNeely would
have thus arrived at Carilion Roanoke Memorial Hospital by 10:35
p.m. – one hour after 9:35 p.m. – when her chance of survival
would be 39.17%. 6

Instead, due to BRMC’s negligence, Mrs.

McNeely arrived at Carilion Roanoke Memorial Hospital at 12:53
a.m., when her chance of survival would be 16.17%. 7

BRMC’s

negligence caused a loss of chance of survival equal to the
difference between the chance of survival at the time that Mrs.
McNeely would have arrived had no negligence occurred (39.17%)

9:35 p.m. is five minutes after 9:30 p.m. At the given rate of
10% loss of chance of survival per hour, every five-minute
period decreases the chance of survival by 0.83%. 50% - 0.83% =
49.17%. The court notes that in making this and the following
calculations, it is following the opinion implicit in Dr.
Denardo’s testimony that the patient’s chance of survival
decreased in a linear fashion.
5

10:35 p.m. is one hour after 9:35 p.m. At the given rate of
10% loss of chance of survival per hour, every hour-long period
decreases the chance of survival by 10%. 49.17% - 10% = 39.17%.
6

12:53 a.m. is three hours and eighteen minutes after 9:35 p.m.
At the given rate of 10% loss of chance of survival per hour,
this means that she lost 10% (first hour) + 10% (second hour) +
10% (third hour) + 3% (eighteen minutes) = 33%. 49.17% - 33% =
16.17%.
7

12

versus the chance of survival at the time that she actually
arrived (16.17%). 8
Therefore, BRMC’s negligence cost Mrs. McNeely a 23% chance
of survival, 9 which is below the 25% threshold required by law to
state a claim under the § 55-7B-3(b) “loss of chance” theory. 10
It is correct to calculate the loss of chance of survival only
between 10:35 p.m. and 12:53 a.m., and incorrect to calculate
the loss of chance of survival between 9:35 p.m. and 12:53 a.m.,
because the loss of chance relevant to the statutory requirement
is a loss of chance due to the defendant’s negligence not
following the standard of care. See W. Va. Code § 55-7B-3. The
standard of care called for the patient to arrive at Carilion
Roanoke Memorial Hospital by 10:35 p.m. The patient did not
actually arrive until 12:53 a.m. Thus, BRMC’s breach is the
amount of time between 10:35 p.m. and the time the patient
actually arrived at the transferee hospital.
8

9

39.17% - 16.17% = 23%.

The court interprets W. Va. Code § 55-7B-3(b) as requiring a
25% change in outcome between the chance of survival had the
standard of care been followed and the chance of survival
experienced due to the breach of the standard of care. The
court does not interpret § 55-7B-3(b) to mean that the “loss of
chance” theory is applicable in all cases where following the
standard of care results in a pure chance of survival greater
than 25%. In interpreting the statute this way, the court is in
line with other courts’ readings of the provision as considering
relative, rather than absolute, outcomes. See, e.g., Wilkinson
v. United States, 2017 WL 1197823, at *3 (S.D.W. Va. Mar. 30,
2017) (Copenhaver, J.) (discussing how the decrease in prognosis
needs to be above 25%, not how the resulting end prognosis
itself needs to be above 25%); Bunner v. United States, 2016 WL
1261151, at *11-12 (S.D.W. Va. Mar. 30, 2016) (Johnston, J.)
(discussing how the defendant’s negligence deprived the
plaintiff of a greater than 25% chance of a better outcome).
10

The court’s interpretation also aligns with the rational
understanding of the implications of the provision. If the
13

Thus, the plaintiff as the nonmoving party has failed to prove
an essential element of its case for which it would bear the
burden of proof at trial, and therefore summary judgment in
favor of defendant BRMC is mandated.

Wallace v. Cmty.

Radiology, 2016 WL 1563041, at *9 (S.D.W. Va. Apr. 18, 2016)
(Faber, J.).
IV.

Conclusion

For the reasons expressed above, defendant BRMC’s motion
for summary judgment, ECF No. 77, is GRANTED, and the Count III
claim by plaintiff against defendant BRMC is thus DISMISSED with
prejudice.
The Clerk is directed to send copies of this Memorandum
Opinion and Order to all counsel of record.
IT IS SO ORDERED this 19th day of December, 2019.
Enter:
David A. Faber
Senior United States District Judge

“loss of chance” theory is to apply whenever the chance of
survival is greater than 25% had the standard of care been
followed, this would allow liability in cases where the actual
effect of the defendant’s negligence may be incredibly slight.
For example, liability could be so imposed if the chance of
survival without breach was 25.01% and the chance of survival
due to negligence was 24.99%. This is an irrational result, and
the court will not interpret the provision in such a manner.
14