Barbara Dean, as Administratrix of the Estate of M.M., Plaintiff Below, Petitioner
Jorge Gordinho, M.D., Responsible Pain & Aesthetic Management, PLLC, and Alleghany Medical Services, P.C., Defendants Below, Respondents
Raleigh County 16-C-421-H
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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. 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,
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 ...