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Harmon v. United States

United States District Court, D. Maryland

September 15, 2017



          Paula Xinis, United States District Judge.

         Pending 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 part.

         I. BACKGROUND[1]

         In May 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 kidney.

         While on Pentasa, patients such as Plaintiff undergo standard blood tests to monitor kidney function by measuring levels of creatinine, [2] 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.

         On 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.

         On 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 Crohn's inflammation.

         Dr. 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.

         The 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.

         Dr. 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.

         Regarding 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.[3]

         On 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 asymptomatic.

         On 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.

         Plaintiff 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.

         On 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.

         Defendant 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.


         “The 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).

         Rule 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 particular issues.”).

         With 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. Id.

         III. ANALYSIS

         A. Plaintiff's Motion for Summary Judgment (ECF No. 33)

         Plaintiff 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.

         1. Medical Negligence (Count One)

         In 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 order.

         i. October 12, 2012 Appointment with Nurse Michelle Ackerman

         Plaintiff's 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.

         Defendant, 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 35.

         Under 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)).

         Defendant 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.

         Moghadas 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).[4] 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 experience.

         Notably, 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. ...

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