United States District Court, D. Maryland
MATTHEW S. LOGUE et al., Plaintiffs
PATIENT FIRST CORPORATION et al., Defendants
MEMORANDUM AND ORDER
K, Bredar, Chief Judge
consolidated medical malpractice suit seeks damages for the
death of Shelby Ann Logue on May 20, 2014, one day
after she had undergone surgery, specifically, a
tonsillectomy, septoplasty, and inferior turbinate reduction.
(3d Am. Compl. ¶¶ 10, 43, 86, 88, ECF No. 71.) The
Plaintiffs are her surviving family members and the potential
beneficiaries of her estate, and they are citizens of either
Pennsylvania or Kentucky. (Id. ¶¶ 11-13.)
Plaintiffs initially filed two lawsuits, one in Pennsylvania
and one in Maryland. The first case was brought in
Pennsylvania state court on April 1, 2016, against Patient
First Corporation; Patient First Urgent Care, East York;
Esmeralda del Rosario, M.D.; Cardiac Diagnostic Associates,
P.C.; and John J. Bobin, M.D. (Notice of Removal, ECF No. 1,
Civ. No. 16-1823-JEJ, M.D. Pa.) The latter two parties were
Pennsylvania citizens, but Plaintiffs voluntarily dismissed
them, which left only Defendants of either Virginia or
Maryland citizenship in the case and resulted in its removal
on September 9, 2016, to the United States District Court for
the Middle District of Pennsylvania. (Id.) That case
was transferred to this Court on July 26, 2017, and docketed
as Civil Action Number l:17-cv-02097 (see 17-2097,
ECF Nos. 30, 31).
second case was brought in this Court on December 8, 2016,
against Patient First Corporation; Patient First Urgent Care,
Bel Air; Boris Gronas, D.O.; Drs. Gehris, Jordan, Day &
Associates, LLC; Katherine V. Day, M.D.; SurgCenter of Bel
Air, LLC; American Anesthesiology of Maryland, P.C.; Paul D.
Gilmore, M.D.; and Patient First Maryland Medical Group,
PLLC. (16-3937, ECF Nos. 1 (original complaint),
71 (3d Am. Compl.).) It was consolidated with Case Number
17-2097 on September 27, 2017. (ECF No. 83.)
pending before the Court are motions for summary judgment
filed by Boris Gronas, D.O., and Patient First Maryland
Medical Group, PLLC ("PF Maryland" and, with
Gronas, "PF Maryland Defendants")) (ECF No. 129);
Esmeralda del Rosario, M.D., and Patient First Pennsylvania
Medical Group, PLLC ("PF Pennsylvania" and, with
del Rosario, "PF Pennsylvania Defendants") (ECF No.
132); and SurgCenter of Bel Air, LLC ("SurgCenter")
(ECF No. 133). They have been briefed (ECF Nos. 138, 139,
142, 143, and 144) and are ready for decision. No hearing is
necessary. Local Rule 105.6 (D. Md. 2018). The motions will
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.
Logue was seen on January 15, 2014, by Dr. Katherine V. Day
at Drs. Gehris, Jordan, Day and Associates, LLC ("Gehris
LLC"), in Bel Air, Maryland. (Pls.' Opp'n to PF
Maryland Defs.' Mot. Summ. J., Ex. C, Gehris LLC med.
records at 4, ECF No. 138-4.) The Gehris LLC medical practice
lists its specializations as head and neck surgery, ear,
nose, and throat surgery, and plastic and reconstructive
surgery. (Id.) Mrs. Logue was not referred by anyone
to Dr. Day. (Id.) The reason for her visit that day
Nasal obstruction is described as the following:
The patient has constant nasal congestion. She has some
problems when she eats bread with swallowing. It will give
her the hiccups. She will feel like she needs a drink. She
also may have sleep apnea. She snores and has gasping
episodes. She was told she had a deviated septum. She takes
(Id.) No evidence has been presented to the Court
that Dr. Day's notes as to the medical history provided
by Mrs. Logue, including the possibility of sleep apnea and
that "[Mrs. Logue] snores and has gasping
episodes," were shared with any other medical provider
made a Defendant in this case, other than the logical
inference that her notes existed at the Gehris LLC office in
which Dr. Day practiced.
medical history was noted by Dr. Day also to include asthma,
diabetes mellitus, and thyroid disease. (Id. at 4.)
At the time of Dr. Day's examination of Mrs. Logue, she
indicated she had experienced fatigue, appetite loss, weight
gain, "feeling sick," persistent infections, dry
skin, nasal congestion, hoarseness, sore throat, snoring,
cough, sleep disturbance due to breathing, abdominal pain,
difficulty swallowing, nausea, vomiting, "frequency,
nocturia, and urgency," muscle pain, back pain, joint
stiffness, muscle cramps, headaches, tingling, and cold
intolerance. (Id. at 5.) Her weight was noted as 230
pounds, and her height was 63 inches. (Id.) Her body
mass index was 40.74 kg/m2. (Id.) She had
a regular pulse of 92, and her blood pressure was recorded as
125/86. (Id.) Dr. Day performed a nasal endoscopy
and a fiberoptic laryngoscopy. (Id. at 6.) Mrs.
Logue's nasal septum was deviated to the right, and the
deviation was characterized as moderate. (Id.) Her
left and right tonsils were noted to be "."
(Id.) With regard to the possibility of Mrs. Logue
having sleep apnea, the following exchange occurred at Dr.
Q. After completing your exam, did you determine what was
your differential diagnosis for Mrs. Logue?
A. I thought, well, the patient had a nasal obstruction. She
had a deviated septum. She had inferior turbinate
hypertrophy. She had rhinitis medicamentosa which is part of
the inferior turbinates being swollen from using the Afrin
and she had difficulty swallowing of unknown cause.
Q. What, if anything, did you determine about her possible
sleep apnea that you had noted earlier?
A. So she had no evidence for any area of airway obstruction
on her exam. So there was no evidence of sleep apnea.
Q. What [sic] you say there's no evidence of
obstruction, that would be evidence of sleep apnea?
Q. Is there a specific obstruction that you would be looking
for that would make it sleep apnea?
A. There are, yes.
Q. Tell me what those are please.
A. So when you examine a patient, what you'll often see
is you'll see a smaller oropharyngeal inlet. You'll
see a lot of redundant issue [sic] in the pallet
[sic]. You'll see an enlarged base of tongue.
You'll see a lot of redundant tissue in the hypopharynx,
which is the area further down the throat. All that area was
patent. She had no-if there was an area of obstruction, it
would have been documented and then that would have been part
of my differential. But she had no-Mrs. Logue had no evidence
of any obstruction. The only obstruction on her exam was her
deviated septum and her enlarged turbinates.
Q. Those obstructions would not cause ...