Meade v. Parsley

Filing 240

MEMORANDUM OPINION AND ORDER denying defendant's 198 MOTION and 201 RENEWED MOTION for Summary Judgment. Signed by Judge John T. Copenhaver, Jr. on 5/25/2011. (cc: attys) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

SHIRLEAN MEADE and ELMER MEADE,
Plaintiffs,
v.

Civil Action No. 2:09-cv-00388

DEIDRE E. PARSLEY, D.O.,
Defendant.
MEMORANDUM OPINION AND ORDER

Pending is the motion for summary judgment of defendant
Deidre E. Parsley, D.O. (“Dr. Parsley”), initially filed on
December 28, 2010, and renewed on March 21, 2011.

I.

Background

Dr. Parsley was plaintiff Shirlean Meade’s physician.
On January 18, 2006, she prescribed the drug metoclopramide to
Meade to alleviate her nausea symptoms.

A side effect of this

drug is tardive dyskinesia, a disorder consisting of potentially
irreversible and involuntary movements.

Over the next year Meade

had about three subsequent office visits with Dr. Parsley, who
continued to prescribe the same drug for her.

At the time of two

more visits office visits on February 8 and February 20, 2007,
Dr. Parsley performed neurological exams on Meade, both of which,
she found, proved negative for movement disorder symptoms.

In the “first part” of February 2007, Meade’s daughter,
Tammie Vance, noticed tremors in her mother’s jaw.

One of

Meade’s physicians, Dr. Ashok Patnaik, also observed these facial
tremors in a visit on February 27, 2007.

At Dr. Patnaik’s

direction, plaintiff stopped taking metoclopramide on that date.

On March 8, 2007, Meade had another routine office
visit with Dr. Parsley.

Upon observing Meade’s movement disorder

symptoms, Dr. Parsley immediately discontinued her metoclopramide
regimen, and prescribed the drug Sinemet to treat the symptoms.
This was the last office visit Meade had with Dr. Parsley.
Her facial tremors were later diagnosed as metoclopramide-induced
tardive dyskinesia.

Shirlean Meade and her husband Elmer Meade
(collectively, “plaintiffs”) instituted this action in the
Circuit Court of Mingo County, West Virginia on February 25,
2009.

Defendants removed on April 20, 2009, invoking the court’s

diversity jurisdiction.

The complaint asserts 13 counts against

various drug manufacturers1 and a single count (Count 1) for
medical malpractice against Dr. Parsley.

1

Plaintiffs seek

The court granted summary judgment for defendants Wyeth
and Schwarz Pharma on November 13, 2009, (Doc. No. 45), and
defendant PLIVA on November 24, 2010, (Doc. No. 187). Dr.
Parsley is the only remaining defendant in this action.
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recovery for actual damages, punitive damages, loss of
consortium, and reasonable costs and attorneys fees.

Dr. Parsley moves for summary judgment on the grounds
that plaintiffs have failed to present evidence of general or
proximate causation.

Plaintiffs oppose the motion, contending

that they have provided sufficient evidence of causation.

II.

A.

Motion for Summary judgment

Governing Standard

A party is entitled to summary judgment “if the
pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.”

Fed. R. Civ. P. 56(c).

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 (1986).

A genuine issue of material fact exists if, in viewing
the record and all reasonable inferences drawn therefrom in a
light most favorable to the non-moving party, a reasonable factfinder could return a verdict for the non-movant.

Id.

The

moving party has the burden of showing -- “that is, pointing out
to the district court -- that there is an absence of evidence to
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support the nonmoving party’s case.”
477 U.S. 317, 325 (1986).

Celotex Corp. v. Catrett,

If the movant satisfies this burden,

then the non-movant must set forth specific facts as would be
admissible in evidence that demonstrate the existence of a
genuine issue of fact for trial.

Id. at 322-23.

A party is

entitled to summary judgment if the record as a whole could not
lead a rational trier of fact to find in favor of the non-movant.
Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).

A court must neither resolve disputed facts nor weigh
the evidence, Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th
Cir. 1995), nor make determinations of credibility.
Murphy, 797 F.2d 179, 182 (4th Cir. 1986).

Sosebee v.

Rather, the party

opposing the motion is entitled to have his or her version of the
facts accepted as true and, moreover, to have all internal
conflicts resolved in his or her favor.

Charbonnages de France

v. Smith, 597 F.2d 406, 414 (4th Cir. 1979).

Inferences that are

“drawn from the underlying facts . . . must be viewed in the
light most favorable to the party opposing the motion.”
States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

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United

B.

Medical Malpractice

Plaintiffs’ medical malpractice claim arises under West
Virginia Code § 55-7B-3, which establishes the following elements
of proof in a lawsuit against a health care provider:
(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.
Id.; see also Mays v. Chang, 579 S.E.2d 561, 565 (W. Va. 2003)
(“It is axiomatic that in a medical malpractice lawsuit . . . , a
plaintiff must establish that the defendant doctor deviated from
some standard of care, and that the deviation was ‘a proximate
cause’ of the plaintiff's injury” (citing W. Va. Code § 55-7B)).
The West Virginia Supreme Court has explained that “[t]he phrase
‘a proximate cause’ in W. Va. Code, 55-7B-3 ‘must be understood
to be that cause which in actual sequence, unbroken by any
independent cause, produced the wrong complained of, without
which the wrong would not have occurred.’”

Mays, 579 S.E.2d at

565 (quoting Syl. Pt. 3, Webb v. Sessler, 63 S.E.2d 65 (1950)).
Generally speaking, “[q]uestions of negligence, due care,
proximate cause and concurrent negligence present issues of fact
for jury determination when the evidence pertaining to such
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issues is conflicting or where the facts, even though undisputed,
are such that reasonable men may draw different conclusions from
them.”

Id. at Syl. Pt. 2 (quoting Syl. Pt. 5, Hatten v. Mason

Realty Co., 135 S.E.2d 236 (W. Va. 1964)).

1.

General Causation

Dr. Parsley first contends that plaintiffs’ claim fails
because they have offered no evidence of general causation (i.e.,
that metoclopramide is capable of causing tardive dyskinesia in
the general population).

In response, plaintiffs point to the

affidavit of their expert Suzanne Parisian, M.D., in which Dr.
Parisian opines to a reasonable degree of medical certainty that
the ingestion of metoclopramide generally causes involuntary
movement disorders including tardive dyskinesia.

(See Pls.’

Opp., Ex. 2, Dr. Parisian’s Affidavit).

Dr. Parsley nevertheless makes reference to the court’s
November 24, 2010 memorandum opinion and order dismissing PLIVA
from this action, where it was stated that, “[i]n a
pharmaceutical products liability action, a plaintiff must
initially establish both general and specific causation for his
injuries.”

(Doc. No. 187, at 12).

Noting that one of the

alternative grounds on which the court dismissed PLIVA was the

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lack of general causation evidence, Dr. Parsley claims the same
result should be reached here inasmuch as the general causation
issue with regard to each PLIVA and Dr. Parsley is identical.
(Def.’s Reply at 6).

This argument fails for an obvious reason.

Dr. Parisian’s affidavit regarding general causation, dated
December 17, 2010, was not tendered in opposition to PLIVA’s
motion for summary judgment, and thus was not considered by the
court in its November 24, 2010 memorandum opinion and order
granting summary judgment to PLIVA on general and proximate
causation grounds.

Now, viewing the affidavit for the first

time, it raises a genuine issue of fact as to whether
metoclopramide causes tardive dyskinesia in the general
population.

2.

Proximate Cause

A more substantial argument raised by Dr. Parsley
concerns proximate cause.

At this point, it is important to

understand the nature of plaintiffs’ medical malpractice claim.
Plaintiffs assert that Dr. Parsley breached a standard of care by
(1) prescribing metoclopramide to Meade without adequately, if at
all, discussing the risk of tardive dyskinesia, and (2) failing
to perform, during the course of treatment with metoclopramide,
adequate neurological exams on Meade designed to detect movement
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disorder symptoms.2

They further maintain that the foregoing

acts and omissions proximately caused Meade to develop tardive
dyskinesia.

As evidence of Dr. Parsley’s negligence, plaintiffs

rely primarily on the expert report of Ray Mahoubi, M.D.

That

report states in pertinent part as follows:
It is my medical opinion that Dr. Parsley fell below
the standard of care in regards to the care she gave Mrs.
Meade. Reglan3 was originally prescribed by Dr. Parsley
for Mrs. Meade on 1/18/2006 for nausea.
There is no
indication that at any time during this office visit that
Dr. Parsley discussed the potential complications of long
term Reglan use with Mrs. Meade. Reglan is not a drug
that should be prescribed casually because of the
complications that arise with its long term use, and the
initial prescribing of the Reglan is questionable. Dr.
Parsley saw the patient in follow-up at least 6
additional times over the course of the next thirteen
months, all the while maintaining the patient on Reglan.
During these subsequent visits, there is little, if any,
mention of the Reglan or any indication that an adequate
neurological exam was performed, as is mandatory for any
patient taking Reglan. Dr. Parsley’s failure to perform
and/or document an adequate neurological exam is below
the standard of care as well.
As Reglan is not appropriate for long term use,
during each consequent visit that Mrs. Meade had with Dr.
Parsley, every effort should have been made to determine
if the Reglan could be discontinued. Instead, numerous
prescriptions for Reglan were written by Dr. Parsley over
the course of this approximately 13 month period. Dr.
Parsley shows little understanding of the potential

2

Plaintiffs also contend that Dr. Parsley was negligent
in failing to adequately note in her records what she did or did
not do, or discuss, in office visits with Meade. While the
allegedly inadequate records might tend to show some carelessness
on the part of Dr. Parsley, it is not a basis for a medical
malpractice action in itself.
3

Reglan is the brand name version of metoclopramide.
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neurological complications of Reglan use, as is indicated
by her notes from Mrs. Meade’s visit on 3/8/07, where she
observed that Mrs. Meade was demonstrating tremors.
Instead of identifying that Mrs. Meade’s symptoms could
possibly have been caused by her long term use of Reglan,
Dr. Parsley chose instead to prescribe Sinamet.
In summary Dr. Parsley deviated from the applicable
standard of care by prescribing Mrs. Meade the drug
Reglan for “nausea” and for not adequately monitoring the
patient for side effects while she continued on Reglan,
as well as for the long-term off-label use in this high
risk patient. The risk of developing Tardive Dyskinesia
increases with the duration of exposure to Reglan, as
well as with age and female gender. It is my opinion
that as a direct result of Dr. Parsley’s failure to
adhere to the applicable standard of care, Mrs. Meade
developed Tardive Dyskinesia, as has been documented in
her medical records.
I hold all of my opinions with a reasonable degree
of medical probability.
(Pls.’ Opp., Ex. 6, Expert Report of Dr. Mahoubi at 2-3).

Dr. Mahoubi later opined in a deposition that putting
“a patient on a potential toxic drug like Reglan for [the] period
of time that [Meade] was on it and [failing to] adequately
perform and document a neurological exam is below the standard of
care.”

(Pls.’ Opp., Ex. 7, Dr. Mahoubi Dep. at 61).

Explaining

the type of neurological exam that should be performed on a
patient undergoing a metoclopramide regimen, Dr. Mahoubi
testified as follows:
[I]n addition to just eyeballing them or just looking at
them, you want to check them for tremors, subtle tremors,
which can only sometimes be manifested when you have them
hold their hands out and try to hold steady. Of course
checking their gait, seeing how they walk, seeing if they
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are displaying anything that could be an early sign of
Parkinsonism such as shuffling gait or a slow gait, short
steps, any kind of repetitive-type movements of their
arms, legs, hands, face, tongue, jaw, which may early on
be subtle, which won't be picked up if you don't look for
it. And of course checking their posture and things like
that.
(Id. at 51).

While acknowledging that Dr. Parsley conducted some

neurological exams of Meade, Dr. Mahoubi testified that “she
simply checkmarked normal,” that “on at least three of the
occasions there was, if I recall, no exam noted at all,” and that
“she wasn’t doing thorough neuro exams each time.”
63).

(Id. at 60,

He concluded that Dr. Parsley “didn’t do appropriate

[neurological] exams.

She did not give [sic] informed consent.

She did not document really any discussion of the drug itself,
which you should do when you have somebody on Reglan.”

(Id. at

62).

In response to Dr. Mahoubi’s report and testimony, Dr.
Parsley emphasizes that she did perform neurological exams of
Meade on February 8 and February 20, 2007, and that both tests
proved negative.

(See Def.’s Mot. Summ. J., Ex. B, Dr. Parsley

Med. Records; Ex. E, Dr. Parsley Dep. at 155).

She further

claims that Meade did not start exhibiting movement disorder
symptoms until February 27, 2007, when Meade saw Dr. Patnaik,
being after she had been examined in February 2007 by Dr.
Parsley.

(Def.’s Mem. at 7).

Dr. Parsley thus contends that her

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alleged failure to adequately conduct neurological exams during
previous visits could not have been a proximate cause of Meade’s
injuries because “there was nothing to recognize or diagnose
prior to February 27, 2007.”

(Def.’s Reply at 7).

Dr. Parsley’s assertion regarding the timing of Meade’s
movement disorder symptoms conflicts with the deposition
testimony of Meade’s daughter, Tammie Vance.

Dr. Parsley cites

Vance’s deposition in support of the proposition that the
“uncontradicted testimony is that Mrs. Meade first began showing
signs of alleged movement disorder in late February 2007.”
(Def.’s Mem. at 7).

However, Vance actually testified that she

first noticed her mother’s involuntary movements in the “first
part of February of ‘07.”
Dep. at 128-29).

(Def.’s Mot. Summ. J., Ex. F, Vance

This testimony indicates that Meade was

exhibiting facial tremors prior to her February 20, 2007 visit
with Dr. Parsley, a visit where Dr. Parsley conducted a
neurological exam on Meade that was supposed to detect movement
disorder symptoms but, Dr. Parsley says, did not.

To summarize, then, there is evidence in the record
showing that (1) Meade exhibited movement disorder symptoms
during the last month in which she was still being seen and
treated by Dr. Parsley with metoclopramide; (2) Dr. Parsley
failed to conduct neurological exams on some of the three visits
11

by Meade during the first twelve months of the metoclopramide
regimen; and (3) the neurological exams that Dr. Parsley did
conduct were inadequate and fell below the standard of care
inasmuch as, allegedly, they were not designed to detect movement
disorder symptoms in Meade.

Viewing this evidence in the light

most favorable to the plaintiffs, a reasonable jury could find
that Dr. Parsley’s negligence was a proximate cause of Meade’s
injuries.4

3.

Informed Consent

Plaintiffs’ medical malpractice claim is based not only
on allegedly inadequate neurological exams, but also on Dr.
Parsley’s alleged failure to obtain informed consent from Meade
regarding the risks and benefits of metoclopramide.

In support

of this theory, plaintiffs cite Dr. Mahoubi’s expert report and
deposition testimony, wherein he noted that Meade’s medical

4

Dr. Parsley also claims, in support of her proximate
causation argument, that Dr. Mahoubi conceded that prescribing
Reglan for certain purposes for longer than 12 weeks is not
necessarily medical negligence, and the mere fact that a patient
develops tardive dyskinesia while taking metoclopramide is not,
by itself, evidence of medical negligence. (Def.’s Mem. at 8-9).
Setting aside whether this is an accurate characterization of Dr.
Mahoubi’s testimony, Dr. Parsley’s arguments are irrelevant to
proximate cause -- they instead relate to whether Dr. Parsley
breached a duty of care. As discussed above, though, Dr. Mahoubi
has opined repeatedly that Dr. Parsley did breach a duty of care.
Any internal conflicts that may be found in Dr. Mahoubi’s
testimony must be resolved in plaintiffs’ favor on a motion for
summary judgment.
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records do not document any informed consent discussions with
Meade.

(See Pls.’ Opp., Ex. 6, Expert Report of Dr. Mahoubi at

2; Ex. 7, Dr. Mahoubi Dep. at 62).

Plaintiffs also rely on

Vance’s deposition testimony, in which she stated that she
accompanied her mother to “every visit” with Dr. Parsley, and
that she had no recollection of Dr. Parsley ever discussing the
risks of ingesting metoclopramide with Meade.

(Pls.’ Opp., Ex.

8, Vance Dep. at 103-04, 110).

Dr. Parsley argues that plaintiffs’ informed consent
theory was not alleged in the complaint and that plaintiffs are
foreclosed from pursuing it now.

However, Count 1 of the

complaint, the medical malpractice count, broadly alleges that
Dr. Parsley was negligent in “failing to properly care for and
treat the plaintiff.”

(Compl. ¶ 103).

Although Count 1 goes on

to outline a number of specific ways in which Dr. Parsley
breached her duty of care, it also alleges generally that she
acted negligently “[i]n such other and further particulars as may
be ascertained through discovery.”

(Id.).

As contemplated by

this allegation, plaintiffs obtained evidence during discovery
indicating that Dr. Parsley failed to obtain Meade’s informed
consent.

The court has not been presented with a sufficient

reason as to why plaintiffs should be prohibited from using this
evidence in support of their medical malpractice claim.

13

Dr. Parsley next contends that plaintiffs’ informed
consent theory fails on proximate cause grounds inasmuch as there
is no evidence showing that Meade would have refused the
prescription of metoclopramide had she been adequately informed
of the risks associated with the drug.

She relies on Adams v.

El-Bash, 338 S.E.2d 381 (W. Va. 1985), where the court stated as
follows in Syllabus Point 3:
In cases applying the doctrine of informed consent, where
a physician fails to disclose the risks of surgery in
accordance with the patient need standard of disclosure
and the patient suffers an injury as a result of the
surgery, a causal relationship, between such failure to
disclose and damage to the patient, may be shown if a
reasonable person in the patient’s circumstances would
have refused to consent to the surgery had the risks been
properly disclosed.
Id. (emphasis added).

As the emphasized language indicates, the

Adams causation standard is an objective one, looking at whether
a reasonable person would have refused to consent if the risks
had been adequately disclosed.

See id. at 386.

The court in

Adams added that, under this “objective test,” the “question of
causation . . . [is] properly left for the jury to decide.”5

5

Id.

Apart from Adams, if Meade herself would have chosen
to take the drug anyway, even in the face of an adequate
explanation, the risk of injury prior to detection by an
adequately and routinely performed neurological exam would seem
to fall on Meade.
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III.

Conclusion

Having found genuine issues of material fact as to
whether Dr. Parsley breached a standard of care and whether that
breach was a proximate cause of Meade’s injuries, the court
ORDERS that Dr. Parsley’s motion for summary judgment be, and it
hereby is, denied.

The Clerk is directed to forward copies of this written
opinion and order to all counsel of record.
DATED: May 25, 2011
John T. Copenhaver, Jr.
United States District Judge

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