United States District Court, D. Maryland
CHRISTY T. O'CONNELL,
AMERICAN MEDICAL ASSOCIATES, et al.
Catherine C. Blake, United States District Judge.
a wrongful birth action. The undisputed facts are tragic. Ms.
O'Connell sought, and ostensibly received, a first-term
medical abortion at a clinic in Frederick, Maryland. She was
informed by clinic personnel that the abortion had been
successful. But then, months later, during a visit with her
primary care provider, she learned that she was still
pregnant. Soon thereafter, Ms. O'Connell developed
preeclampsia and gave birth 10 weeks premature to a baby, who
has since suffered a host of medical and developmental
problems. Ms. O'Connell filed this medical malpractice
suit seeking damages from four doctors allegedly involved or
vicariously liable, and American Medical Associates P.C.,
("American")-a corporation she contends does
business as a variety of other nominal entities, one of which
is a clinic called Associates in OB/GYN Care, LLC,
("Associates"), where she sought the abortion. She
later resolved her claims with Dr. Dominy, the physician who
oversaw her treatment at the clinic. (See ECF No.
80). But her claims against three other doctors: Steven C.
Brigham, Vikram H. Kaji, and Mansour G. Panah remained. Dr.
Panah is deceased and his estate has not been substituted as
a party. The plaintiff does not oppose Dr.
Kaji's motion for summary judgment, (ECF No. 114 at p. 13
n.8), and it will therefore be granted. Dr. Brigham and
American's motion for summary judgment, by contrast, is
contested. Because there is a genuine dispute of material
fact as to whether the defendants owned or controlled the
Frederick clinic-and as to the relationship between the
defendants and the clinic personnel-the defendants'
motion for summary judgment will be denied.
happened to Christy O'Connell on July 26, 2012, is not in
dispute. (See Defs.' Mot. Summ. J,,
ECF No. 109-1 at pp. 8-15.) Having learned she was pregnant
the month prior, she appeared at a clinic in Frederick,
Maryland, known as American Women Services ("AWS")
for an abortion consultation. (Am, Compl., ECF No. 45 at
¶¶ 21-22.) There, an office manager performed and
interpreted an obstetric ultrasound, and underestimated the
fetus's gestational age. (Am. Compl., ECF No. 45 at
¶ 24.) Ms. O'Connell consulted with Dr. Iris Dominy,
and decided, because the gestational age estimate was less
than eight weeks, to have a medical (non-surgical) abortion,
(Am. Compl., ECF No. 45 at ¶ 25.) (Ten days earlier, Ms.
O'Connell's primary care, doctor had estimated the
gestational age to be beyond eight weeks. (Am. Compl., ECF
No. 45 at ¶ 20.).) At the clinic, Ms. O'Connell was
prescribed misoprostol and methotrexate to achieve the
abortion, neither of which are FDA-approved for that purpose
and both of which are known to cause birth defects. (Am.
Compl., ECF No. 45 at ¶¶ 26-28.) She was never
given mifepristone/RU-486, or any FDA-approved medical
abortion regimen. (Am. Compl., ECF No. 45 at ¶ 27.) On
August 17, 2012, Ms. O'Connell returned to AWS, where the
office manager performed another sonogram and, with Dr.
Dominy, confirmed that the abortion had been successful. (Am.
Compl., ECF No. 45 at ¶ 31.) Ms. O'Connell went on
with her life as if she were not pregnant; for example, she
took oral contraceptives and drank alcohol. (Am. Compl., ECF
No. 45 at ¶¶ 32-33.) But then, on October 5, 2012,
Ms. O'Connell discovered at her annual physical exam
that, in fact, she was still pregnant. (Am. Compl., ECF No.
45 at ¶ 33.) She developed preemclaspia in December,
requiring that doctors induce labor. (Am. Compl,, ECF No. 45
at ¶ 36.) Joseph O'Connell was born on December 19,
2012, and has since suffered numerous medical and
developmental complications. (Am. Compl., ECF No. 45 at
business entities are implicated in the plaintiffs complaint.
Their precise relationship to one another-and to Dr. Steven
Brigham, M.D.-goes to the heart of the summary judgment
dispute. Associates in OB/GYN Care, LLC
("Associates") is a registered. corporation that
operated four abortion clinics in Maryland. (See ECF
No. 114, Ex. 12.) This is where the plaintiff attempted to
procure an abortion, and its ownership is the acute factual
issue in question. Its license was suspended in 2013 because
a Maryland Department of Health and Mental Hygiene
investigation found an unwritten policy by which staff
administered medical abortions without physician oversight.
(See ECF No. 114, Ex. 9A.) American Medical
Associates, P.C. ("American") is a Pennsylvania
corporation owned and operated by Steven Brigham.
(See ECF No. 114, Ex. 10; Brigham Aff., ECF No. 114,
Ex. 11 at ¶ 9.) As laid out below, Brigham and American
argue that their relationship with the other defendants in
this case' is merely contractual-but it is undisputed
that Brigham controls American. (See Defs.' Mot.
Summ. J., ECF No. 109-1 at pp. 8-15.) American Women's
Services ("AWS") is not a registered corporation
but is alleged to be the trade name Dr. Brigham uses for the
abortion clinics that he owns or operates. (ECF No. 114 at p.
2.) The Associates branch in Frederick, MD, where Ms.
O'Connell sought care, used the AWS tradename.
(See ECF No. 114, Ex. 16.)
procedural run-up to the present motion is straightforward.
Ms. O'Connell filed a medical malpractice action against
American, Associates, other allegedly affiliated business
entities, and Dr. Dominy on April 21, 2014. (ECF No. 1.) In
August 2015, she filed a separate lawsuit against Steven
Brigham and Vikram H. Kaji arising out of the same nucleus of
operative facts, which subsequently was consolidated with the
case against American. (ECF No. 49.) Ms. O'Connell
brought a third case, this time against Dr. Mansour G. Panah,
the medical director at Associates, which also was
consolidated with the 2014 case. (ECF No. 71.) She resolved
her claims against Dr. Dominy. (ECF No. 80). None of the
other defendants answered, and thereafter a default judgment
was granted against the remaining defendants for $6, 500,
000. (ECF No. 76; ECF No. 77.) Defendants American, Kaji, and
Brigham successfully moved to vacate the default judgment on
improper service grounds. (ECF No. 99.) Discovery ensued.
They now move for summary judgment. (ECF No. 109.) The
plaintiff argues that summary judgment should be denied as to
American and Brigham. (ECF No. 114.) The court granted a
consent motion for extension of time for the defendants to
file a reply to the plaintiffs opposition to summary
judgment, but no reply was filed.
Standard of Review
Rule of Civil Procedure 56(a) provides that summary judgment
should be granted "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) (emphases added). "A dispute is
genuine if 'a reasonable jury could return a verdict for
the nonmoving party."' Libertarian Party of Va.
v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting
Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330
(4th Cir. 2012)). "A fact is material if it 'might
affect the outcome of the suit under the governing
law.'" Id. (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). Accordingly,
"the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment[.]"
Anderson, 477 U.S. at 247-48. The court must view
the evidence in the light most favorable to the nonmoving
party, Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014)
(per curiam), and draw all reasonable inferences in that
party's favor, Scott v. Harris, 550 U.S. 372,
378 (2007) (citations omitted); see also Jacobs v. N.C.
Admin. Office of the Courts, 780 F.3d 562, 568-69 (4th
Cir. 2015). At the same time, the court must "prevent
factually unsupported claims and defenses from proceeding to
trial." Bonchat v. Bait. Ravens Football Club,
Inc., 346 F.3d 514, 526 (4th Cir. 2003) (quoting
Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir.
of this motion distills to a simple question: Who owns and/or
controls the clinic where Ms. O'Connell attempted to
obtain an abortion in Frederick, Maryland? The defendants
argue that American and Dr. Brigham had, at most, a
contractual relationship with Associates to provide
independent contractor physicians. (ECF No. 109-1 at p. 9.)
They assert that "at all times relevant herein, American
was not conducting business in the State of Maryland nor
providing abortion services under the trade name
'American Women's Services,' that Dr. Brigham was
not the owner or 'alter ego' of either Associates ...
or American Women's Services nor exerting any sort of
'domination' or 'control' over those entities
or the operations and procedures of any of the four Maryland
abortion clinics in question." (ECF No. 109-1 at p. 5.)
Instead, they were involved with the Frederick clinic only
"pursuant to an expressly defined independent contractor
agreement [to provide independent contractor physicians]
entered into by AMA [(American)] and Associates." (ECF
No. 109-1 at p. 6; ECF No. 109-1, Ex. 1, Transcript of
Stephen C. Brigham, M.D., at Tr. 109-110). "AMA
[(American)] and Associates," the defendants insist,
"were independent and distinct business
entities-separately owned and operated." (ECF No.
10971 at p. 5.)
plaintiff, by contrast, argues that the Frederick clinic
where she sought an abortion was owned and operated by Dr.
Brigham and/or American, his corporation, (ECF No. 114 at p.
2), or that he exercised such substantial control over the
clinic as to be responsible for its negligence. (ECF No. 114
at pp. 14-15.) There is no disputed point of law here. Both
parties seem to agree that if Brigham or American owned or
controlled the Frederick clinic and its employees, this case
should continue to trial. By contrast, if their relationship
was that of a principal and an independent contractor, and if
Brigham and American have no ownership or control over the
Frederick clinic, then summary judgment is
the depositions of Dr. Brigham and Nancy Luke, the former CEO
of Associates, support the conclusion that American and Dr.
Brigham did not own or operate the Frederick clinic,
(see ECF 109-1, Ex. 1, Transcript of Stephen C.
Brigham, M.D., at Tr. 70-71; 81-82; 86-87; 204 (Dr.
Brigham averring that he never owned or operated Associates
or AWS); ECF 97-3 (Ms. Luke stating that American did not own
Associates and that Dr. Brigham did not manage Associates)),
plaintiff. puts forth sufficient evidence that, when
construed in her favor, engenders a genuine dispute as to the
defendants' ownership and/or control of the Frederick
clinic. A few facts proffered by the plaintiff are
particularly salient. First, the consent form that Ms.
O'Connell signed ahead of the attempted abortion and her
medical records from the Frederick clinic are all written on
American forms or on American letterhead. (Pl.'s Resp.
Opp'n Defs' Mot. Summ. J, ECF No. 114-7.) Second, the
address listed on American's registration as a business
entity in Maryland is the address of the Frederick clinic
where Ms. O'Connell sought an abortion. (Pl.'s Resp.
in Opp'n to Defs' Mot. for Summ. J, ECF No. 114-11.)
Third, the independent contractor agreement signed by Dr.
Dominy does not refer to Associates; rather, it is between
American, a "Professional Corporation authorized to
practice medicine and surgery in Maryland," and Dr.
Dominy, and refers to "Maryland locations of the
PC." (Pl.'s Resp. in Opp'n to Defs' Mot. for
Summ. J, ECF No. 114-8.) Fourth, it appears that Dr. Brigham,
through an intermediate corporation, may have owned the
physical building in Frederick, MD, where the clinic at issue
was housed. (Pl.'s Resp. Opp'n Defs' Mot. Summ.
J, ECF No. 114-13.) Fifth, the defendants, who have the
burden of proving they are entitled to a judgment as a matter
of law, have provided no information about the ownership of
Associates and failed to produce the principal-independent
contractor agreement between American and Associates upon
which they place so much importance.
factors alone are sufficient to establish a genuine dispute
of material fact as to the defendants' ownership and/or
control of the Frederick clinic. Because there exists a
genuine dispute of material fact about the defendants'
overall relationship to the Frederick clinic, summary
judgment also will be denied as to any separate theory about
the defendants' vicarious liability for the actions of
their alleged agent, Dr. Panah, who, all ...