United States District Court, D. Maryland
MEMORANDUM AND ORDER
K. BREDAR, CHIEF JUDGE
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.
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.
Standard for Summary Judgment
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.
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.
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.
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.
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.
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 ...