United States District Court, D. Maryland
Xinis, United States District Judge.
in this medical malpractice action are cross-motions for
partial summary judgment. See ECF Nos. 33, 36. The
issues are fully briefed and a hearing was held on Wednesday,
September 13, 2017. See ECF No. 42. For the reasons
stated below, both motions are granted in part and denied in
2011, Plaintiff Edward Harmon (“Plaintiff”) was
diagnosed with Crohn's disease by physicians at the
Pediatric Gastroenterology Division of Walter Reed National
Military Center (“Walter Reed”). Plaintiff is
eligible for care in the military system because his father,
Col. Robert Harmon (“Col. Harmon”), is a former
military service member. Crohn's disease cannot be cured,
only treated with medications that control gastrointestinal
inflammation. In May of 2011, several classes of drugs
existed to treat Crohn's disease, including mesalamine
commonly known by the brand name “Pentasa”,
6-mercaptopurine (“6-MP”), immunosuppressants,
and biologics. Dr. Phillip Rogers, one of Plaintiff's
treating physicians, prescribed Pentasa to Plaintiff on May
26, 2011. A known but rare risk of mesalamine is acute
interstitial nephritis (“AIN”), an allergic
reaction that can inflame and ultimately damage parts of the
on Pentasa, patients such as Plaintiff undergo standard blood
tests to monitor kidney function by measuring levels of
creatinine,  blood urea nitrogen (“BUN”),
and glomerular filtration rate (“GFR”). These
blood tests are called metabolic panels which can be either
comprehensive (“CMP”) or basic
(“BMP”). Plaintiff's first metabolic panel
was completed on May 23, 2011. His creatinine value at that
time was 0.9, which is within the acceptable range of .7 to
1.3. His BUN and GFR levels were also normal.
October 11, 2011 test results revealed that Plaintiff's
creatinine and BUN had increased since May 2011, although the
values were still within the acceptable range. Plaintiff then
left for college during which time he was not treated at
Walter Reed. He returned to military care in October 2012 and
attended a series of medical appointments at Walter Reed and
Fort Belvoir Community Hospital (“Fort Belvoir”)
over a six-month period. Plaintiff's claims concern these
medical appointments. The Court will only address these
encounters generally here, and will leave the details for its
discussion of the parties' motions, infra.
October 12, 2012, Plaintiff met with Nurse Michelle Ackerman
(“Nurse Ackerman”) at the Fort Belvoir
Gastroenterology Clinic. Col. Harmon was present during this
appointment. Nurse Ackerman conducted a full workup on
Plaintiff and ordered lab work. Plaintiff's labs revealed
a significant elevation in his inflammatory markers,
indicating cause for concern as to the status of his
Crohn's disease. The labs also revealed an elevated
creatinine level of 1.6, which is .2 units above the normal
range of .7 to 1.4 as well as abnormal BUN and GFR levels. As
a follow-up to the blood results, Nurse Ackerman then
scheduled a colonoscopy appointment to address his
Benjamin Rodriguez, a clinical fellow, and Dr. Dale Cloyd, a
staff gastroenterologist, conducted Plaintiff's
colonoscopy on November 20, 2012. The colonoscopy revealed
Crohn's inflammation in Plaintiff's GI tract. Drs.
Rodriguez and Cloyd discussed the colonoscopy findings and
agreed that the Pentasa was not doing enough to keep
Plaintiff's Crohn's under control. They therefore
increased his Pentasa dosage.
next month, on December 26, 2012, Plaintiff again visited Dr.
Rodriguez in Walter Reed's Inflammatory Bowel Disease
(“IBD”) clinic. The purpose of the visit was for
Plaintiff to establish care in the IBD clinic with Dr.
Betteridge, an IBD specialist who now served as Dr.
Rodriguez's supervising physician. Dr. Rodriguez observed
that Plaintiff's October lab results showed that
Plaintiff had an elevated creatinine level and discussed
these results with Dr. Betteridge.
Rodriguez's medical notes from the December 26th
appointment included five recommendations to Plaintiff: get
new labs drawn, complete a bone density scan, schedule a
repeat colonoscopy, get a pneumonia vaccine, and follow up in
January to revisit the discussion of initiating 6-MP. The new
labs would have allowed the doctors to reevaluate
Plaintiff's kidney values. But these labs were never
drawn. Plaintiff contends Dr. Rodriguez never instructed him
to obtain repeat labs while Defendant argues that Plaintiff
was instructed and simply failed to do so.
Plaintiff's Crohn's disease, Drs. Rodriguez and
Betteridge agreed that Plaintiff likely needed to be placed
on a stronger medication than Pentasa and decided to discuss
with Plaintiff a transition to 6-MP. Plaintiff rejected the
move to 6-MP because he was a concerned about burning through
too many treatment plans too quickly.
January 8, 2013, Plaintiff underwent another colonoscopy that
identified signs of Crohn's-related inflammation. On
January 17th, Dr. Betteridge left a voicemail message for
Plaintiff regarding the colonoscopy results and ordered him
to follow up soon with Dr. Betteridge in the IBD clinic. Dr.
Betteridge did not notify Plaintiff of his abnormal
creatinine, BUN, and GFR levels from his October 12th lab
work. On January 31st, Dr. Rodriguez reviewed with Plaintiff
the colonoscopy results. Plaintiff insisted that he felt
“great” and that his Crohn's disease was
March 11, 2013, Plaintiff attended an annual physical with
Dr. Shawn Corcoran at Fort Belvoir. Although, Dr. Corcoran
noted that Plaintiff's elevated creatinine value from his
October 2012 labs, the doctor continued Plaintiff on Pentasa
because his Crohn's was stable and also ordered Plaintiff
to repeat blood tests which were completed the same day. The
labs revealed that Plaintiff's creatinine level rose to
3.3 indicating significantly compromised kidney function. Dr.
Corcoran, however, did not review the results with Plaintiff
until April 3, 2013.
then scheduled an appointment to see a nephrologist at the
Walter Reed Nephrology Clinic. Dr. John Thurlow repeated
Plaintiff's blood tests, which revealed that
Plaintiff's creatinine was even higher, at 4.1.
Consequently, Dr. Thurlow diagnosed Plaintiff with
Pentasa-induced AIN and discontinued his Pentasa regimen. On
April 12, 2013, Plaintiff underwent a kidney biopsy which
confirmed that he is suffering from AIN. Plaintiff was also
diagnosed with chronic kidney disease.
September 3, 2015, Plaintiff filed this action against the
United States (“Defendant”) pursuant to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 2671 et seq., alleging that Defendant,
through Walter Reed, Fort Belvoir, and their agents, were
medically negligent in failing to diagnose Plaintiff's
elevated creatinine on October 2012 as an adverse reaction to
Pentasa. Plaintiff further alleges that his continued use of
Pentasa caused AIN and thus permanent kidney damage.
See ECF No. 1. Plaintiff also alleges that Defendant
failed to warn Plaintiff about the risks associated with
Pentasa, including AIN. Id.
answered the Complaint on November 17, 2015 and the parties
proceeded to discovery. In its answer, Defendant included the
affirmative defenses of contributory negligence and
assumption of risk. See ECF No. 9 at 9-10. On
January 17, 2017, Plaintiff filed a partial motion for
summary judgment. Defendant filed a cross-motion for partial
summary judgment on February 22, 2017. The Court will address
each in turn.
STANDARD OF REVIEW
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (citing predecessor to current Rule
56(a)). The burden is on the moving party to demonstrate the
absence of any genuine dispute of material fact. Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If
sufficient evidence exists for a reasonable jury to render a
verdict in favor of the party opposing the motion, then a
genuine dispute of material fact is presented and summary
judgment should be denied. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). However, the “mere
existence of a scintilla of evidence in support of the
[opposing party's] position” is insufficient to
defeat a motion for summary judgment. Id. at 252.
The facts themselves, and the inferences to be drawn from the
underlying facts, must be viewed in the light most favorable
to the opposing party, Scott v. Harris, 550 U.S.
372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230
(4th Cir. 2008), who may not rest upon the mere allegations
or denials of his pleading but instead must, by affidavit or
other evidentiary showing, set out specific facts showing a
genuine dispute for trial, Fed.R.Civ.P. 56(c)(1).
56(a) of the Federal Rules of Civil Procedure permits a party
to move for partial summary judgment by identifying
“each claim or defense-or the part of each claim or
defense-on which summary judgment is sought.” A motion
for partial summary judgment is recognized as a useful
pretrial tool; the Advisory Committee Notes to the 1946
amendment to Rule 56 state: “The partial summary
judgment is merely a pretrial adjudication that certain
issues shall be deemed established for the trial of the case.
This adjudication . . . serves the purpose of speeding up
litigation by” narrowing the issues for trial to those
over which there is a genuine dispute of material fact.
See also Rotorex Co. v. Kingsbury Corp., 42
F.Supp.2d 563, 570-71 (D. Md. 1999) (internal quotation marks
omitted) (noting that “numerous courts have entertained
and decided motions for partial summary judgment addressing
cross-motions for summary judgment, the Court must review
each motion separately as to whether either party deserves
judgment as a matter of law. Rossignol v. Voorhaar,
316 F.3d 516, 523 (4th Cir. 2003) (citation omitted). Thus,
as with any motion for summary judgment, the court must
review the facts and reasonable inferences therefrom in the
light most favorable to the party opposing that motion.
Plaintiff's Motion for Summary Judgment (ECF No.
moves for partial summary judgment on Defendant's
violation of the standard of care as to the medical
negligence claim (Count I) and the negligent breach of duty
of informed consent (Count II). He also seeks summary
judgment on Defendant's affirmative defenses of
contributory negligence and assumption of risk. Each of these
issues will be addressed separately.
Medical Negligence (Count One)
Maryland, to recover for injuries caused by alleged medical
malpractice, a plaintiff must prove, by a preponderance of
the evidence, (1) the applicable standard of care; (2) that
this standard has been breached; and (3) a causal
relationship between the violation and the injury. See
Lawson v. United States, 454 F.Supp.2d 373, 416 (D. Md.
2006) (citing Weimer v. Hetrick, 309 Md. 536, 553
(1987)). Physicians owe a duty to use the care expected of a
reasonably competent practitioner of the same class and
acting in the same or similar circumstances. Ford v.
United States, 165 F.Supp.3d 400, 423 (D. Md. 2016)
(citing Upper Chesapeake Health Ctr., Inc. v.
Gargiulo, 223 Md.App. 772 (2015) (unreported)). Under
this standard, the trier of fact must take into account
“advances in the profession, availability of
facilities, specialization or general practice, proximity of
specialists and special facilities, together with all other
relevant considerations . . . .” Shilkret v.
Annapolis Emergency Hosp. Ass'n, 276 Md. 187, 200
(1975). “[T]he defendant's use of suitable
professional skill is generally a topic calling for expert
testimony . . . .” Johns Hopkins Hospital v.
Genda, 255 Md. 616, 623 (1969). Plaintiff argues his
treating physicians and nurses indisputably breached the
applicable standard of care in failing to diagnose and treat
Plaintiff's kidney injury over a six-month period from
October 12, 2012 to April 12, 2013. The Court will assess
each of Plaintiff's claimed breaches in chronological
October 12, 2012 Appointment with Nurse Michelle
first claimed breach is as to Nurse Michelle Ackerman who
failed order repeat labs after the October 2012 labs revealed
abnormal levels of creatinine, BUN, and GFR. See
Nurse Ackerman Dep., Def.'s Ex. 20 at 26-32. Nurse
Ackerman conceded in her deposition that elevations in a
patient's BUN and creatinine levels indicate possible
kidney dysfunction. See Id. at 28-29. Yet Ackerman
never relayed this concern to Plaintiff. Id. at
33-35. Nor did Ackerman take any further steps consistent
with concern for adverse kidney function related to the
elevated lab results. See ECF No. 33-1 at 10;
Ackerman Dep., Def.'s Ex. 20 at 37-40. Consequently,
Plaintiff's standard of care expert, Kathryn Moghadas
(“Moghadas”), concludes that Nurse Ackerman
breached the standard of care in four ways. First, she failed
to inform Plaintiff of the abnormal labs related to kidney
function. Second, she failed to bring the abnormal lab
results to the attention of her supervising physician. Third,
in addition to failing to notify the attending physician,
Nurse Ackerman failed to take any steps to ensure follow up
as to kidney dysfunction. Finally, Nurse Ackerman engaged in
substandard medical documentation. See Moghadas
Dep., Def.'s Ex. 14 at 94-102.
by contrast, offers no like-kind expert, but merely argues
for the exclusion of Moghadas' opinion because it lacks
sufficient factual basis. Specifically, Defendant contends
that Moghadas failed to take into account Nurse
Ackerman's collaborative practice agreement
(“CPA”), which, according to Moghadas, defines
“the scope that [Nurse Ackerman] can practice under,
what she could and could not be allowed to do.”
See Moghadas Dep., Def.'s Ex. 14 at 100.
Defendant suggests, without elaboration, that this failure
renders Moghadas' testimony excludable under Rule 702 of
the Federal Rules of Evidence. See ECF No. 36-1 at
Rules 104(a) and 702 of the Federal Rules of Evidence,
“the trial judge must ensure that any and all
scientific testimony or evidence admitted is not only
relevant, but reliable.” Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 589 (1993). To do so, the
trial court must confirm that: (1) “the testimony is
the product of reliable principles and methods”; (2)
“the expert has reliably applied the principles and
methods to the facts of the case”; and (3) the
“testimony is based on sufficient facts or data.”
Fed.R.Evid. 702(b)-(d). The Daubert inquiry involves
“two guiding, and sometimes competing,
principles.” Westberry v. Gislaved Gummi AB,
178 F.3d 257, 261 (4th Cir. 1999). “On the one hand, .
. . Rule 702 was intended to liberalize the introduction of
relevant expert evidence, ” id., and
“the trial court's role as a gatekeeper is not
intended to serve as a replacement for the adversary
system.” United States v. Stanley, 533 F.
App'x 325, 327 (4th Cir. 2013) (citing Fed.R.Evid. 702
advisory committee's note). On the other hand,
“[b]ecause expert witnesses have the potential to be
both powerful and quite misleading, ' it is crucial that
the district court conduct a careful analysis into the
reliability of the expert's proposed opinion.”
United States v. Fultz, 591 F. App'x 226, 227
(4th Cir. 2015) (quoting Cooper v. Smith & Nephew,
Inc., 259 F.3d 194, 199 (4th Cir. 2001)).
contends that because Nurse Ackerman's CPA sets forth the
applicable standard of care as it pertains to Ackerman,
Moghadas' failure to consider the CPA warrants the
drastic remedy of exclusion under Rule 702. Defendant's
argument is misplaced.
explained that while a CPA may or may not reflect the nursing
standards of care, it does not create those standards.
See, e.g., Moghadas Dep., Def.'s Ex. 14 at 99
(explaining that while the CPA may establish certain
“parameters”, the nurse still maintains the
responsibility to, for example, notify the attending doctor
of any problems). Put differently, the nursing standard of
care is based not on the dictates of the CPA, but the
medically reasonably steps nurses are expected to take in
similar circumstances based on their training, education and
Defendant does not argue that Moghadas' articulated
standard of care is wrong or directly at odds with the CPA.
But more to the point, even if the CPA is inconsistent with
Moghades' articulated standard of care, this alone does
not merit exclusion. ...