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Dean v. Gordinho

Supreme Court of Appeals of West Virginia

October 18, 2019

Barbara Dean, as Administratrix of the Estate of M.M., Plaintiff Below, Petitioner
v.
Jorge Gordinho, M.D., Responsible Pain & Aesthetic Management, PLLC, and Alleghany Medical Services, P.C., Defendants Below, Respondents

          Raleigh County 16-C-421-H

          MEMORANDUM DECISION

         Petitioner Barbara Dean, as Administratrix of the Estate of M.M., by counsel James D. McQueen, Jr., and Christopher J. Heavens, appeals the June 14, 2018, order of the Circuit Court of Raleigh County that granted summary judgment to Respondents Jorge Gordinho, M.D.; Responsible Pain & Aesthetic Management, PLLC; and Alleghany Medical Services, P.C. All three respondents, by counsel Joseph M. Farrell, Jr., filed a response in support of the circuit court's order. Respondent Alleghany Medical Services, by counsel Matthew E. Kelley, filed an additional response in support of the circuit court's order. Petitioners filed a reply.

         The Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         On August 13, 2013, Lisa Walker, a nurse practitioner at Respondent Alleghany Medical Services P.C. ("AMS"), evaluated M.M. ("decedent"). Decedent complained of pain in her back and other areas of her body. The nurse practitioner noted that decedent had been prescribed Suboxone (a combination of buprenorphine and naloxone used to treat opiate addiction), but discontinued it and prescribed instead Cymbalta (for depression) and Ultram (a narcotic-like pain reliever). The nurse practitioner also ordered an MRI of decedent's cervical spine and referred decedent to Respondent Responsible Pain & Aesthetic Management, PLLC ("RPAM").

         Two days later, on August 15, 2013, decedent saw Respondent Dr. Jorge Gordinho at RPAM. Dr. Gordinho searched the State pharmacy database and discovered decedent had abused opioids in the past and had recently participated in a Suboxone program. Decedent's urine screen showed that she had no opioids in her system. Dr. Gordinho diagnosed decedent with degenerative disk disease and lumbago and prescribed a thirty-day course of oxycodone, an opioid medication.

         At decedent's second appointment with Dr. Gordinho on September 10, 2013, Dr. Gordinho tested decedent's urine. The lab report indicated that decedent's urine was diluted and positive for substances not prescribed by Dr. Gordinho, including Tramadol (a narcotic-like pain reliever). Dr. Gordinho refilled decedent's oxycodone prescription before her last such prescription ran out.

         At decedent's third appointment on October 8, 2013, Dr. Gordinho refilled her oxycodone prescription and prescribed Ultram. Thereafter, decedent's mother, who is now the representative of decedent's estate and the petitioner in this appeal, sent Dr. Gordinho a letter asking him to stop prescribing opioids to decedent because she was a drug addict. The undated letter was placed in decedent's medical file at Dr. Gordinho's office sometime after October 8, 2013.

         At decedent's fourth appointment with Dr. Gordinho on October 30, 2013, he gave her a prescription for oxycodone fourteen days before her last such prescription ran out because decedent said she sprained her ankle. Dr. Gordinho also discussed with decedent the letter decedent's mother wrote to Dr. Gordinho.

         At decedent's fifth appointment with Dr. Gordinho on November 13, 2013, she presented with claims of worsened pain. Dr. Gordinho refilled her oxycodone prescription and increased the dosage by fifty percent.

         Decedent had her sixth and final appointment with Dr. Gordinho on December 11, 2013, at which she claimed to have greater pain. Dr. Gordinho reviewed decedent's urinalysis from her last appointment and found that it did not contain the oxycodone metabolites that should have been in her urine. As a result, Dr. Gordinho discharged decedent as a patient.

         One week later, on December 18, 2013, decedent saw Dr. Hassan Asghar Jafary and complained of depression and neck and back pain. Decedent told Dr. Jafary that Dr. Gordinho had previously treated her. However, decedent did not tell Dr. Jafary that Dr. Gordinho had discharged her from his care. Dr. Jafary refused to prescribe pain medication but, instead, referred her to a mental health provider. Dr. Jafary next saw decedent nine months later, on August 21, 2014, at which time he diagnosed her with "opioid type dependence - continuous use" and re-enrolled her in a Suboxone program. Decedent saw Dr. Jafary again on August 22 and 29, 2014, to continue with Suboxone monitoring.

         On September 5, 2014, decedent visited the office of Dr. Faheem where she claimed that someone had stolen her medications. The office staff advised petitioner that Dr. Faheem did not replace lost or stolen medication; however, the staff told her that Dr. Faheem would "detox" decedent. Decedent refused that service.

         Decedent saw Dr. Yasar Aksoy on September 11, 2014, who prescribed her hydrocodone, an opioid. Decedent filled the prescription on October 1, 2014. She died the next day, October 2, 2014. The medical examiner opined that decedent's death resulted from oxymorphone, hydrocodone, and diazepam intoxication.

          Petitioner brought this action against respondents and other medical providers, including Dr. Aksoy.[1] Specifically, petitioner filed this action on June 28, 2016, twenty-one months after decedent died, thirty months after Dr. Gordinho last treated decedent, and thirty-four months after the nurse practitioner at AMS last treated decedent. Dr. Lloyd Saberski, MD, issued petitioner's certificate of merit, [2] in which he opined that (1) Dr. Gordinho deviated from an acceptable medical practice when he prescribed decedent oxycodone; (2) Dr. Gordinho undermined decedent's recovery and rekindled her addiction, which contributed to her death; (3) Dr. Gordinho deviated from acceptable medical practice in failing to provide the ...


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