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Graham v. Dhar

United States District Court, S.D. West Virginia, Bluefield

December 19, 2019

JANET GRAHAM, Administratrix of The Estate of Edna Marie McNeely, Plaintiff,
v.
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

          DAVID A. FABER, SENIOR UNITED STATES DISTRICT JUDGE

         Pending 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.

         I. Factual and Procedural Background

         On 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.[1] 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.

         On 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.[2]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.

         BRMC's 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?
A: Yes.

See ECF No. 81-2 at p. 74, lines 19-22.

         Second, 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?
A: True.

See id. at p. 77, lines 9-24, p. 78, lines 1-6.

         Third, 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 percentages?
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 of ...

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