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Estate of Burns v. Cohen

United States District Court, S.D. West Virginia, Beckley Division

June 19, 2019

ESTATE OF LORA MAE BURNS, by and through REBECCA VANCE, as Administratrix of the Estate of Lora Mae Burns, Plaintiffs,
v.
DR. STEPHEN M. COHEN, M.D., Defendant.

          MEMORANDUM OPINION AND ORDER

          IRENE C. BERGER UNITED STATES DISTRICT JUDGE

         The Court has reviewed Stephen M. Cohen, M.D, 's Motion to Strike Plaintiff's Untimely Expert Witness Disclosure and Motion for Summary Judgment (Document 19), the Memorandum of Law in Support of Stephen M. Cohen, M.D.'s Motion to Strike Plaintiff's Untimely Expert Witness Disclosure and Motion for Summary Judgment (Document 20), Plaintiff's Response to Defendant's Motion to Strike Plaintiff's Untimely Expert Witness Disclosure and Motion for Summary Judgment and Plaintiff's Motion to Dismiss Defendant's Motion to Strike and Motion for Summary Judgement (Document 26), Stephen M. Cohen, M.D, 's Reply to Plaintiff's Response to Defendant's Motion to Strike Plaintiff's Untimely Expert Witness Disclosure and Motion for Summary Judgment (Document 27), and the attached exhibits.

         The Court has also reviewed Defendant's Motion for Partial Summary Judgment as to Punitive Damages (Document 30), the Defendant's Memorandum of Law in Support of Defendant's Motion for Partial Summary Judgment as to Punitive Damages (Document 31), the Plaintiff's Memorandum of Law in Opposition of Defendant's Motion for Partial Summary Judgment as to Punitive Damages (Document 32), and the Defendant's Reply to Plaintiff's Memorandum of Law in Opposition of Defendant's Motion for Partial Summary Judgment as to Punitive Damages (Document 33), and the attached exhibits.

         For the reasons stated herein, the Court finds that both motions should be denied.

         FACTS

         On April 11, 2018, the Plaintiff, the Estate of Lora Mae Burns, by and through Rebecca Vance, Adminstratix, filed a Complaint (Document1-1) against the Defendant, Stephen M. Cohen, M.D., in the Circuit Court of Greenbrier County, West Virginia. On May 2, 2018, the case was removed to this Court. The Complaint alleges that the Defendant, as a general surgeon, was negligent and did not meet the standard of care for Ms. Burns.

         From June 4, 2015, until she died on December 16, 2015, Ms. Burns was a resident of White Sulphur Spring Center, a skilled nursing facility in Greenbrier County. On July 16, 2015, Ms. Burns had her first consultation with the Defendant at the Greenbrier Valley Medical Center (“GVMC”). During the consultation, the Defendant explained to Ms. Burns that based on the information contained in his notes, an esophagogastroduodenoscopy (“EGD”) was medically necessary to repair an ulcer in her stomach. Initially, Ms. Burns refused the procedure, however, about an hour later, after a second consultation with the Defendant, Ms. Burns agreed to the procedure. On July 17, 2015, the Defendant performed an EGD on Ms. Burns to repair an ulcer in her stomach. On September 9, 2015, the Defendant performed a second EGD as well as a biopsy on Ms. Burns.

         On December 15, 2015, the Defendant performed a colonoscopy and placed a percutaneous endoscopic gastrotomy (“PEG”) tube in Ms. Burns' stomach. After the surgical procedure, the Defendant discharged Ms. Burns from GVMC to White Sulphur Spring Center. The Plaintiff alleges that the Defendant released Ms. Burns to the White Sulphur Spring Center without detailed discharge instructions with respect to monitoring her or what to do if she pulled out her PEG tube.

         After she was discharged on December 15, 2015, staff at White Sulphur Spring Center discovered that Ms. Burns had pulled out the PEG tube placed by the Defendant earlier that day. On December 16, 2015, staff at the White Sulphur Spring Center discovered that Ms. Burns was unresponsive. She was transported to the Greenbrier Emergency Department. After preliminary treatment at the Greenbrier Emergency Department, she was airlifted to the Charleston Area Medical Center, where she died. Ms. Burns death certificate states that the cause of death was bowel perforation, pulled PEG tube, delirium, and hypoglycemia.

         STANDARD OF REVIEW

         The well-established standard in consideration of a motion for summary judgment is that “[t]he 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)-(c); see also Hunt v. Cromartie, 526 U.S. 541, 549 (1999); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Hoschar v. Appalachian Power Co., 739 F.3d 163, 169 (4th Cir. 2014). A “material fact” is a fact that could affect the outcome of the case. Anderson, 477 U.S. at 248; News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). A “genuine issue” concerning a material fact exists when the evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party's favor. FDIC v. Cashion, 720 F.3d 169, 180 (4th Cir. 2013); News & Observer, 597 F.3d at 576.

         The moving party bears the burden of showing that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp., 477 U.S. at 322-23. When determining whether summary judgment is appropriate, a court must view all of the factual evidence, and any reasonable inferences to be drawn therefrom, in the light most favorable to the nonmoving party. Hoschar, 739 F.3d at 169. However, the nonmoving party must offer some “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256. “At the summary judgment stage, the non-moving party must come forward with more than ‘mere speculation or the building of one inference upon another' to resist dismissal of the action.” Perry v. Kappos, No.11-1476, 2012 WL 2130908, at *3 (4th Cir. June 13, 2012) (unpublished decision) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)).

         In considering a motion for summary judgment, the court will not “weigh the evidence and determine the truth of the matter, ” Anderson, 477 U.S. at 249, nor will it make determinations of credibility. N. Am. Precast, Inc. v. Gen. Cas. Co. of Wis., 2008 WL 906334, *3 (S.D. W.Va. Mar. 31, 2008) (Copenhaver, J.) (citing Sosebee v. Murphy,797 F.2d 179, 182 (4th Cir. 1986). If disputes over a material fact exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party, ” summary judgment is inappropriate. Anderson, 477 U.S. at 250. If, however, the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, ” then ...


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