United States District Court, S.D. West Virginia, Bluefield
JANET GRAHAM, Administratrix of The Estate of Edna Marie McNeely, Plaintiff,
SUNIL KUMAR DHAR, M.D., BLUEFIELD CLINIC COMPANY, LLC, d/b/a BLUEFIELD CARDIOLOGY, and, BLUEFIELD HOSPITAL COMPANY, LLC, d/b/a BLUEFIELD REGIONAL MEDICAL CENTER, Defendants.
MEMORANDUM OPINION AND ORDER
A. FABER, SENIOR UNITED STATES DISTRICT JUDGE
before the court is defendant Bluefield Hospital Company,
LLC, d/b/a Bluefield Regional Medical Center
(“BRMC”)'s motion for summary judgment. ECF
No. 77. For the reasons that follow, the motion for summary
judgment is GRANTED, and plaintiff's
remaining claim in the Complaint against defendant BRMC -
Count III - is DISMISSED with prejudice.
Factual and Procedural Background
October 6, 2017, plaintiff Janet Graham (hereinafter
“plaintiff”), Administratrix of the Estate of
Edna Marie McNeely, filed a medical professional liability
lawsuit against BRMC and co-defendant, Dr. Sunil Kumar Dhar,
relative to Edna Marie McNeely's (hereinafter
“patient” or “Mrs. McNeely”)
hospitalization at BRMC in March of 2016. See ECF
No. 1-1. Plaintiff's Complaint originally contained two
(2) counts against BRMC. Id. Plaintiff's stated
claims against BRMC were: (1) for medical negligence while
Mrs. McNeely was a patient at BRMC in March of 2016 (Count
III); and (2) for violation of the West Virginia Consumer
Credit and Protection Act (Count IV). Id. Only Count
III of plaintiff's Complaint - the medical negligence
claim - currently remains against BRMC, as Count IV was
dismissed by the plaintiff. Plaintiff's Complaint in
Count III alleges that, “as a direct and proximate
result of the . . . negligence of defendant BRMC, the
decedent sustained severe physical injuries, tremendous
suffering and pain . . . and other compensable injuries and
damages.” Id. at ¶ 49.
April 12, 2019, plaintiff timely filed Rule 26(a)(2)(A) and
(B) Expert Disclosures in this matter. See ECF No.
54. Plaintiff named Scott J. Denardo, M.D., as her liability
expert in this matter. Dr. Denardo authored a preliminary
report in this matter and issued opinions regarding
BRMC's deviations in the standard of care. Dr. Denardo
testified that BRMC deviated from the applicable standard of
care in the following three ways: (1) for not mentoring
defendant Sunil Kumar Dhar, M.D., due to the amount of
procedures he had performed prior to Edna McNeely's
procedure in March 2016; (2) for not declaring Edna
McNeely's circumstances as a sentinel event, requiring
peer review; and (3) for failing to comply with the West
Virginia Cardiac Catheterization Standards related to patient
transfer.See ECF No. 78-2 at ¶¶
7, 9. At his deposition, Dr. Denardo was questioned by
BRMC's counsel as to his opinions contained in his
preliminary report relating to BRMC's breaches of the
standard of care.
counsel first asked the following question related to Dr.
Denardo's opinion that BRMC deviated from the applicable
standard of care by not mentoring defendant Dr. Dhar:
Q: Okay. And you'd agree with me that whether Dr. Dhar
was mentored or not did not play an ultimate role in this
case, did it?
See ECF No. 81-2 at p. 74, lines 19-22.
BRMC's counsel questioned Dr. Denardo with respect to his
opinion regarding BRMC's deviation in the standard of
care for not declaring Edna McNeely's circumstances as a
sentinel event, requiring peer review:
Q. And then on Page 5 of your report, Paragraph B there, it
talks about peer review for PCI procedures, and whether peer
review was conducted on Ms. McNeely's case or not. You
would certainly agree with me that whether peer review was
conducted after this case or not played no role in her death?
A. Well, conceptually, peer review, one of the major points
is to avoid future complications. So if a peer reviewed
process is in this place, it would diminish the chances of a
bad outcome. I think that's the whole intent.
Q. Right. But the -- they couldn't have peer reviewed Ms.
McNeely's case . . . until after she left the hospital .
. . and died. Correct?
A: Right. Right. Right.
Q: So whether they, in fact, peer reviewed this case or not
did not play a role in her death. You'd agree with that?
See id. at p. 77, lines 9-24, p. 78, lines 1-6.
BRMC's counsel questioned Dr. Denardo regarding his
opinions on Mrs. McNeely's probability of survival had
she been transferred sooner from BRMC.
Q: Well, you know, ultimately that gets to the -- are you
able to ascribe any of these probabilities in terms of
A. Well, I thought about that. I think that if she --I've
thought about it in different time points. For example, at
9:30 in the evening, I think her chance of survival was at
least 50 percent or more had she been transferred right at
that point and aggressively transfused. And in my mind -- and
this is not based on any research article, but just kind of
based on my experience. I think about every hour, her chance