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Logue v. Patient First Corp.

United States District Court, D. Maryland

November 15, 2019

MATTHEW S. LOGUE et al., Plaintiffs


          James K, Bredar, Chief Judge

         I. Background

         This 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).

         The 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.[1] (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.)

         Now 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 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. Evidence

         Mrs. 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 was

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 Afrin.

(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.

         Her 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. Day's deposition:

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?
A. Yes.
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 ...

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