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MacDonald v. United States

United States District Court, D. Maryland

October 5, 2018

DELAINE MacDONALD et al., Plaintiffs
v.
UNITED STATES OF AMERICA, Defendant

          MEMORANDUM AND ORDER

          JAMES K. BREDAR, CHIEF JUDGE

         I. Background

         This case is brought by Plaintiffs Delaine MacDonald and Neal Kringel against the United States of America under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, for alleged medical malpractice by a surgeon, U.S. Army Lieutenant Colonel Leon Nesti, M.D., when he performed an operation on MacDonald to repair her carpal tunnel syndrome. (Compl., ECF No. 1.) The operation was performed at the Kimbrough Ambulatory Care Center at Fort George G. Meade in Maryland. (Id. ¶¶ 10-11.) MacDonald alleges, and the Government does not dispute, that her median nerve was partially lacerated during the course of the surgery. (Id. ¶ 12; Def.'s Ans. ¶ 13, ECF No. 10.) The nerve damage was recognized and repaired intraoperatively. (Compl. ¶ 12.) MacDonald alleges she suffers permanent damage from the incident. (Id. ¶ 16.)

         Now pending before the Court is the Government's motion for summary judgment. (ECF No. 23.) The motion has been briefed (ECF Nos. 26, 29), and no hearing is required, Local Rule 105.6 (D. Md. 2016). The motion will be denied.

         II. Standard for Summary Judgment

         “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). Supporting and opposing affidavits are to be made on personal knowledge, contain such facts as would be admissible in evidence, and show affirmatively the competence of the affiant to testify to the matters stated in the affidavit. Fed.R.Civ.P. 56(c)(4).

         III. Analysis

         The Government contends that the Plaintiffs' expert's opinions on the standard of care and the breach of that standard are insufficient as a matter of law and, therefore, that the Government is entitled to summary judgment in its favor on the question of whether Dr. Nesti was negligent when MacDonald's median nerve was damaged during the surgery. (Def.'s Mot. Summ. J. Supp. Mem. 2, ECF No. 23-1.) This contention is narrowly focused on particular parts of the testimony of Plaintiffs' expert, John Fowler, M.D., and fails to take into account Dr. Fowler's full opinion. Consequently, the prevailing Maryland case law does not support the Government's argument.

         Because of their complexity, medical malpractice cases must ordinarily rely upon expert testimony to establish breach of the standard of care and causation. Tucker v. Univ. Specialty Hosp., 887 A.2d 74, 78 (Md. Ct. Spec. App. 2005). The Government contends Dr. Fowler's opinion on the standard of care is fatally flawed because, the Government argues, it amounts to a strict liability standard. But this argument does not survive a careful reading of Dr. Fowler's opinion. Further, the Government argues Dr. Fowler fails to explain how the standard of care was breached by Dr. Nesti.

         Dr. Fowler's qualifications as an expert on carpal tunnel release surgery are unquestioned by the Government and are well established in the record. He states in his opinion that he has “extensive experience performing both endoscopic and open carpal tunnel release surgery.” (Fowler Op. 1, Def.'s Mot. Summ. J. Ex. B, ECF No. 23-3.) He also states, “I am familiar with the techniques utilized by Dr. Leon Nesti during the carpal tunnel release surgery he performed on Delaine MacDonald on December 17, 2013.” (Id.) With regard to the standard of care, Dr. Fowler stated,

The standard of care for a hand surgeon performing carpal tunnel release, regardless of whether the surgery is performed endoscopically or in an open fashion, is to properly identify the anatomical structures of the wrist, including the median nerve. The standard of care requires that the surgeon take precautionary measures to protect the median nerve from injury during surgery. Protection of the median nerve requires proper identification of the median nerve and techniques to avoid nerve laceration while performing the surgery. In this specific case, protection of [the] median nerve required incision of the distal forearm fascia (to allow access to the carpal tunnel) without lacerating the median nerve in the process.

(Id. 2.)

         As for his opinion on whether Dr. Nesti breached the standard of care, Dr. Fowler stated,

It is my opinion that Dr. Nesti breached the standard of care by not properly identifying and protecting the median nerve during the December 17th surgery, thereby lacerating it with the surgical knife. Lacerating the nerve that the surgeon is intending to decompress breaches the standard of care. Once the skin incision is made, it is imperative to dissect the subcutaneous fat off the distal forearm antebrachial fascia and make a “window” in the fascia to allow insertion of the endoscopic equipment into the carpal tunnel. Dr. Nesti made an “L-shaped” window and he lacerated the median nerve while making the horizontal part of the “L”. This could have been avoided by making two longitudinal incisions in the fascia, lifting up the fascia, and then carefully dividing the more proximal portion to make a “U-shaped” flap. Dr. Nesti breached the standard of care by not properly protecting the median nerve while making this flap and then lacerating the median nerve. Understanding the anatomy and depth of dissection is an essential ...

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