DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for review in this medical malpractice case are four motions: (1) a motion in limine under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), to strike and exclude causation testimony by David H. Goldstein, M.D. filed by Defendants Southern Maryland Hospital, Inc.; Weatherby Locums, Inc.; Edna Ruth Hill, M.D.; Gastrointestinal Associates of Maryland, P.A.; and Lornette Mills, M.D. ("Defendants") (ECF No. 49); (2) a motion for summary judgment filed by Defendants (ECF No. 50); (3) a separate motion for summary judgment filed by Defendant Weatherby Locums, Inc. (ECF No. 44); and (4) a motion filed by Defendants to withdraw certain exhibits that contain personal identifying information and replace those exhibits with redacted versions (ECF No. 56). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion to exclude Dr. Goldstein's testimony will be denied. Defendants' motion for summary judgment will be denied. Defendant Weatherby Locums, Inc.'s motion for summary judgment will be granted. Defendants' motion to withdraw and replace certain exhibits will be granted.
On September 28, 2008, Plaintiff Holley Whitfield went to the emergency department at Southern Maryland Hospital ("SMH"), complaining of abdominal pain and vomiting blood. Ms. Whitfield was seen by Defendant Dr. Edna Ruth Hill — an employee of SMH and Weatherby Locums
Plaintiff was subsequently admitted to SMH in the early morning hours of September 29, 2008, under the care of SMH Doctor Rasheed Abassi. (Id. ¶¶ 34, 36-37). Dr. Abassi was aware of Plaintiff's acute pain. (Id. ¶ 38). At 1:15 P.M. on September 29, 2008, Defendant Dr. Lornette Mills, a gastroenterologist employed by Gastrointestinal Associates of Maryland ("GAM"), first saw and treated Plaintiff.
On October 2, 2008, Dr. Okang ordered a CAT Scan due to Plaintiff's persistent abdomen pain. Most relevant for this case, the CAT Scan revealed a superior mesenteric vein thrombosis ("SMVT"). SMVT is a clot of the superior mesenteric vein through which blood leaves the intestine. SMVT, if left untreated, can eventually cause death. Defendants did not administer any anticoagulation medicine. Plaintiffs contend that they did not act with any speed despite the seriousness of Ms. Whitfield's diagnosis. (Id. ¶¶ 47-49).
Ms. Whitfield's family was informed of her diagnosis and requested a transfer to the Medical College of Virginia ("MCV") in Richmond, Virginia, a facility that was better equipped to handle SMVT. SMH refused to transfer her unless and until a physician from an accepting hospital notified SMH that it would accept Plaintiff. Plaintiff's family worked the phones until they found a physician who arranged the transfer on October 3, 2008. (Id. ¶¶ 50-53).
Upon arrival at MCV, Plaintiff was diagnosed with acute mesenteric ischemia, or internal bleeding of the mesenteric vein. Plaintiff underwent surgery which resulted in the removal of seventeen inches of her small intestine after it had died from lack of blood. (Id. ¶¶ 54-55). During her time at SMH and MCV, Plaintiff suffered additional consequences from her acute mesenteric ischemia, including "persistently low hemoglobin levels, rectal bleeding, confusion, agitation, altered mental status requiring medication and psychological consultations, high blood sugar, nausea and vomiting, high pulse rate, rapid shivering and twitching of her jaw, incontinence, inability to talk and/or respond to questions, hospital acquired MRSA [Methicillin-resistant Staphylococcus Aureus], [and] explosive diarrhea." (Id. ¶ 60). "Plaintiff continues to experience significant and severe physical and mental anguish, pain, suffering, inconvenience, physical impairment, disfigurement, and other injuries, as well as additional medical treatment, bills, and loss of earnings and economic capacity." (Id. ¶ 63).
Plaintiffs allege that Defendants provided inadequate care and treatment to Ms. Whitfield from September 29 to October 3, 2008.
The Maryland Health Care Malpractice Claims Act (the "Malpractice Claims Act"), Md. Code Ann., Cts. & Jud. Proc. §§ 3-2A-01 et seq., governs the procedures for medical malpractice claims in the state of Maryland. See, e.g., Carroll v. Kontis, 400 Md. 167, 172 (2007). On September 26, 2011, Plaintiffs filed a Statement of Claim in the Healthcare Alternative Dispute Resolution Office ("HCADRO"). The HCADRO is an administrative body established by the Malpractice Claims Act.
A party can waive arbitration in the HCADRO, which terminates proceedings. See Md. Code Ann., Cts. & Jud. Proc. § 3-2A-06B(a) to (d)(1). The Malpractice Claims Act notes that suit may then be filed in either Maryland Circuit Court or the U.S. District Court. Id. §§ 3-2A-06A(c), 06B(f).
On July 24, 2012, all Defendants filed an election to waive arbitration under the Malpractice Claims Act. On July 27, 2012, HCADRO ordered transfer to this court. Plaintiffs filed their complaint on September 14, 2012. (ECF No. 1).
Dr. David H. Goldstein, one of Plaintiffs' expert witnesses, was deposed. Dr. Goldstein testified that based on the symptoms Plaintiff presented upon arrival at SMH, Defendants should have promptly ordered a CAT Scan, and failure to do so promptly violated their standard of care. The CAT Scan would have revealed Plaintiff's SMVT, for which the standard of care was treatment with an anticoagulant such as the drug heparin. Dr. Goldstein contends that Defendants' failure to administer heparin by September 30, 2008 caused Plaintiff's injuries, because if the drug was administered by that date, it was his opinion that it is more likely than not that blood would have returned to her intestines, foregoing the need for surgery which resulted in the removal of seventeen inches of Plaintiff's small intestine. Alternatively, prompt administration of heparin would have reduced the amount of intestine that had to be removed.
On June 7, 2013, Defendant Weatherby Locums, Inc. filed a motion for summary judgment, arguing that it is not liable for Dr. Hill's alleged negligence because Dr. Hill is not its employee, but instead an independent contractor. Additionally, Weatherby Locums argues that Plaintiffs have not demonstrated that Plaintiffs relied upon Weatherby's apparent authority over Dr. Hill when receiving medical care. (ECF No. 44). Plaintiffs filed an opposition on June 24, 2013 (ECF No. 47), to which Weatherby replied on July 9, 2013 (ECF No. 48).
On July 19, 2013, Defendants filed a joint motion in limine to strike and exclude Dr. Goldstein's causation testimony on the ground that it fails to satisfy the requirements for admissibility of expert testimony pursuant to Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and its progeny. (ECF No. 49). On the same day, Defendants filed a joint motion for summary judgment, arguing that because Dr. Goldstein was Plaintiffs' only expert who testified about causation, should his testimony be excluded, Defendants will have demonstrated that no genuine issue of material fact exists as to the causation element of Plaintiff's prima facie claim of negligence. (ECF No. 50). Plaintiffs filed oppositions to each motion on August 8, 2013 (ECF Nos. 49 & 50), and Defendants replied to both on August 26, 2013 (ECF Nos. 57 & 58).
Finally, on August 16, 2013, Defendants filed a motion to withdraw certain exhibits to their motion in limine and motion for summary judgment after being alerted by Plaintiffs that they contain personal identifying information. They propose to replace these exhibits with redacted versions. (ECF No. 56). Plaintiffs have not filed a response.
Under Federal Rule of Evidence 702, the district court has "a special obligation . . . to `ensure that any and all scientific testimony . . . is not only relevant, but reliable.'" Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (quoting Daubert, 509 U.S. at 589). Rule 702 provides,
The United States Court of Appeals for the Fourth Circuit explained Rule 702 as follows:
Westberry v. Gislaved Gummi AB, 178 F.3d 257, 260 (4
To be considered reliable, an expert opinion "must be based on scientific, technical, or other specialized knowledge and not on belief or speculation, and inferences must be derived using scientific or other valid methods." Oglesby v. Gen. Motors Corp., 190 F.3d 244, 250 (4
In his deposition, Dr. Goldstein provided his opinion "to a reasonable degree of medical certainty, that had the SMVT been diagnosed earlier that the outcome would have been different." (ECF No. 49-6 at 15, Trans. 51:19-23). Dr. Goldstein believes that when Plaintiff arrived at SMH on September 28, 2008, she was already suffering from SMVT, which by definition means her bowel was ischemic, i.e., having a decreased blood supply due to an obstruction. He believed that the ischemia explained why Ms. Whitfield was experiencing hematemesis, i.e., blood in one's vomit. (Id. at 20-21, Trans. 73:14-75:10). Goldstein testified that, although Ms. Whitefield's bowel was ischemic, none of it upon arrival at SMH had yet become infarcted, or dead (necrosis), because of an obstruction of the blood supply. Dr. Goldstein draws this conclusion by way of a negative inference: an infarcted bowel results in a breakdown of the intestine's walls. This results in bacteria entering into the bloodstream which causes a person often to go into septic shock and die within twenty-four hours. The fact that Ms. Whitfield had survived for the four days she was in the care of SMH before the SMVT diagnosis leads to the conclusion that it was not infarcted upon admission or else she should have been dead. This conclusion was bolstered by Dr. Abassi's note on September 29, 2008, where he wrote that Plaintiff's abdomen had no rebound tenderness or guarding, meaning an absence of signs of acute peritonitis (inflammation of the thin tissue that covers most of the abdominal organs), suggesting that the bowel had not completely died. Therefore, Dr. Goldstein's medical opinion was that Plaintiff's bowel was ischemic but not yet infarcted through September 30, 2008. (Id. at 15-16, Trans. 50:13-55:19). Dr. Goldstein goes on to explain that if the Defendants had followed the standard of care, they would have recognized that Plaintiff's arrival at SMH with a high heart and respiratory rate and abdominal pain meant by definition she had Systemic Inflammatory Response Syndrome ("SIRS") which can include multiple possible emergencies, including SMVT. These possibilities require evaluation by a CAT Scan which would have revealed SMVT. The CAT Scan was not done on September 29, 2008, when Plaintiff's condition should have demanded it, but instead October 2, 2008. By that time, the bowel had become infarcted which necessitated surgery. (Id. at 13-15, Trans. 44:2-50:12).
The crux of Defendants' motion concerns the next step in Dr. Goldstein's assessment. Dr. Goldstein posits that if the CAT Scan was done promptly — as demanded by the standard of care — the SMVT would have been discovered at a point where Plaintiff's bowel was only ischemic. The standard of care for an ischemic bowel is immediate treatment with an anticoagulant such as heparin. Dr. Goldstein contends that had Ms. Whitfield been treated with heparin by September 30, 2008, it is "more likely than not [that] she would not have required surgery.... Had she required surgery, it would have been done in a more timely manner and less bowel would have been required to be resected." (Id. at 16, Trans. 56:12-57:11; see also id. at 32, Trans. 118:2-25 (same)). Defendants' attorney asked for Dr. Goldstein's reasoning behind his opinion that failure to diagnose Plaintiff's SMVT promptly and administer heparin resulted in her requiring surgery. Dr. Goldstein responded that he was relying on two issues:
(Id. at 32, Trans. 119:5-23). Defendants' attorney continued to press Dr. Goldstein on his opinion that administration of heparin would have prevented Plaintiff's surgery.
(Id. at 32-33, Trans. 120:7-22, 121:9-122:1, 122:6-122:18).
In support of his opinion, Dr. Goldstein brought to the deposition the medical literature he relied upon. These articles indicate that
(Id. at 118, David A. Tendler & J. Thomas LaMont, Acute Mesenteric Ischemia (last updated May 4, 2012); see also id. at 122, Chat V. Dang, Acute Mesenteric Ischemia Treatment & Management (last updated Feb. 22, 2013) ("Heparin anticoagulation is the main treatment of MVT. If no signs of bowel necrosis exist, the patient may not even need an operation.")).
Defendants attack Dr. Goldstein's view that administration of heparin would break up an already existing clot, thereby allowing blood to return to the bowel, staving off infarction and surgery. They argue that "[i]t has been established through scientific literature and testing that the medication [h]eparin does not break up, lyse, or destroy [an] existing clot in the body," but instead "only works to prevent future clots or the propagation of an existing clot in the body." (ECF No. 49-2, at 13-14). In support, Defendants provide the entry for "heparin" in the 2003 Physician's Desk Reference (the latest version before Ms. Whitfield's illness), which states that "[h]eparin does not have fibrinolytic activity; therefore, it will not lyse existing clots." (ECF No. 49-12, at 2). Defendants also provided affidavits of Dr. John Feigert, a hematologist, and Dr. Nancy Clark, a vascular surgeon. (ECF Nos. 49-13 & 49-14). Dr. Feigert avers that the hematemesis Plaintiff presented upon arrival at SMH "was evidence that the [SMVT] was already formed and had occluded the superior mesenteric vein." (ECF No. 49-13 ¶ 16). He disagreed with Dr. Goldstein's causation opinion "because it is not consistent with the medical science surrounding the mechanism of action of [h]eparin or how a [SMVT] causes bowel injury leading to surgery." (Id. ¶ 17). By the time Plaintiff arrived at SMH, she already had the clot. Administering heparin would do nothing to bring blood flow back to the bowel because heparin simply does not have the capability to break down clots. Dr. Feigert believed that Plaintiff would have had to have surgery regardless of when Defendants diagnosed SMVT and there is no "reasonable medical or scientific support for Dr. Goldstein's contention" about the salutary effects of heparin. (Id. ¶¶ 19-22). Dr. Clark provided identical reasoning and conclusions. (See ECF No. 49-14 ¶¶ 12-13).
In response, Plaintiffs contend that even if heparin is unable to dissolve clots, it does not follow that administering heparin to Ms. Whitfield earlier would not have limited her injury because heparin does prevent propagation of existing clots. By not treating the clot, it was permitted to propagate, exacerbating ischemia which eventually led to infarction and removal of part of the bowel. (ECF No. 54 at 15-16). Plaintiffs provide additional literature in support of their position. (See, e.g., ECF No. 54-14, at 5, Shaji Kumar, et al., Mesenteric Venous Thrombosis, 345 New Eng. J. Med. 1683, 1687 (Dec. 6, 2001) ("Mesenteric venous thrombosis can safely be managed without surgery if there is no evidence of bowel infarction.")). Defendants reply that Ms. Whitfield's presentation of hematemesis upon arrival at SMH demonstrated that her ischemia was too severe to be reversed by heparin before the bowel would become infarcted and require surgery. (ECF No. 58, at 9-11).
The Fourth Circuit has recognized the competing principles at work in terms of expert testimony:
Westberry, 178 F.3d at 261. A literature review can be an appropriate part of a method of determining causation. "Under the Daubert standard, epidemiological studies are not necessarily required to prove causation, as long as the methodology employed by the expert in reaching his or her conclusion is sound." Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1384 (4
Dr. Goldstein's testimony has met the standard of Rule 702 for reliability. The studies Dr. Goldstein brought to his deposition representing what he relied upon in forming his conclusion support the opinions he expressed. Critically, Dr. Goldstein points to Dr. Abassi's note on September 29, 2008 indicating that Plaintiff's abdomen had no rebound tenderness or guarding, meaning an absence of signs of peritonitis, suggesting that the bowel necrosis had not yet occurred. Dr. Goldstein produced a medical article at deposition that supports the view that for pre-bowel necrosis, administering heparin can avoid surgery. (See ECF No. 49-6, at 122, Chat V. Dang, Acute Mesenteric Ischemia Treatment & Management (last updated Feb. 22, 2013) ("Heparin anticoagulation is the main treatment of [mesenteric vein thrombosis]. If no signs of bowel necrosis exists, the patient may not even need an operation."). Further articles accompanying Plaintiffs' opposition support this position. (See ECF No. 54-14, at 5, Shaji Kumar, et al., Mesenteric Venous Thrombosis, 345 New Eng. J. Med. 1683, 1687 (Dec. 6, 2001) ("Mesenteric venous thrombosis can safely be managed without surgery if there is no evidence of bowel infarction."); ECF No. 54-15, at 5, Elena M. Stoffel & Norton J. Greenberger, Mesenteric Ischemia, at 68 ("[I]n patients with clinical and radiologic evidence of MVT, but no infarction, and with good mesenteric blood flow demonstrated by angiography, conservative management can be attempted using anticoagulation therapy.")). These studies indicate that Dr. Goldstein's opinion possesses the degree of reliability demanded by Rule 702 to be admissible, drawing no conclusions as to the weight to be attached to those opinions and their underlying evidence.
Defendants attempt to refute Dr. Goldstein's conclusions by pointing to the known properties of heparin, specifically its ability to prevent only the propagation of clots, not to lyse existing clots. They provide an affidavit of Dr. Feigert, a hematologist, who contends that upon presentation to SMH, Ms. Whitfield's condition already had passed the point where the body's natural ability to break up clots would work fast enough to prevent infarction and surgery even if heparin was administered to arrest the clot's propagation. (ECF No. 49-13 ¶ 21). Defendants will have ample opportunity to cross-examine Dr. Goldstein about these arguments and present their own evidence, but for purposes of Rule 702, "the court need not determine that the expert testimony a litigant seeks to offer into evidence is irrefutable or certainly correct." Westberry, 178 F.3d at 261.
Defendants place great weight on Doe v. Ortho-Clinical Diagnostics, Inc., 440 F.Supp.2d 465 (M.D.N.C. 2006), in which plaintiffs desired to have an expert testify that exposure to a drug caused their child's autism. As Defendants acknowledge, this case is not binding authority on this court. Furthermore, there are numerous differences between that case and the present situation. First, in Doe "all of the available peer-reviewed and generally accepted epidemiological studies refute causation." Id. at 475. Here, there is medical literature suggesting the opposite. Second, the Doe court rejected plaintiffs' expert because he could not meet the preponderance of the evidence standard required to show that the drug could cause autism because the principal study he relied upon stated that it only demonstrated "one possible mechanism by which [exposure to the drug] could increase the risk of autism." Id. at 474 (emphasis added). The court found such a conditional statement inadequate, characterizing it as mere "hypothesis and speculation." Id.
This standard is too exacting as it appears to be demanding that the expert's ultimate conclusion — exposure to the drug causes autism — be more likely than not, rather than demanding merely that plaintiff demonstrate by a preponderance of proof that their expert's methods and principles used to arrive at his conclusion are reliable and relevant. See United States v. Moreland, 437 F.3d 424, 431 (4
Having reviewed Dr. Goldstein's testimony and the literature he relies upon, it cannot be said that his methodology or ultimate conclusions are unwarranted, at least for the purposes of admissibility. This is not to say that Dr. Goldstein's methodology and conclusions are impervious to criticism. Indeed, many of his methods may be tested by Defendants on cross-examination. At this juncture, however, only the admissibility of Dr. Goldstein's opinion is at issue, not the weight it should be afforded, and his opinion passes that threshold.
Defendants also challenge Dr. Goldstein's qualifications to provide expert testimony on causation. Dr. Goldstein received his medical degree from the University of Manitoba in 1976 and performed his internship, residencies, and fellowships at Harvard Medical School. He is currently a pulmonologist and hospitalist at a hospital in Sarasota, Florida and is also a clinical professor of internal medicine, pulmonary medicine, and hospitalist medicine at Florida State University Medical School. He is board certified in pulmonology and internal medicine. (ECF No. 54-13, curriculum vitae of David H. Goldstein, M.D.). Dr. Goldstein has only diagnosed two cases of SMVT in his career and never testified as an expert in an SMVT litigation, nor has he published anything on SMVT. (ECF No. 49-6 at 7, 12, Trans. 18:2-25, 38:15-25). But Dr. Goldstein as a hospitalist would be the first doctor responsible for diagnosing SMVT and starting the patient on heparin. (Id. at 18, Trans. 65:1-20). He would be responsible for monitoring heparin and evaluating its effectiveness in a given patient. (Id. at 19, Trans. 66:11-67:4). Defendants argue that Dr. Goldstein is not qualified to give testimony on causation because he lacks experience in general or vascular surgery and therefore is not qualified to render an opinion on the necessity of surgery if heparin was administered earlier. (ECF No. 49-2, at 22-23).
The Fourth Circuit has held that "[t]he witness' qualifications to render an expert opinion are . . . liberally judged by Rule 702. Kopf v. Skyrm, 993 F.2d 374, 377 (4
Kline, 878 F.2d at 799. Moreover, a "lack of direct experience is not a sufficient basis to reject [a proposed expert's] testimony, but may affect the weight that testimony is given, a decision properly made by the [finder of fact]." Martin v. Fleissner GMBH, 741 F.2d 61, 64 (4th Cir. 1984).
Dr. Goldstein's experience with diagnosing SMVT and administering heparin and monitoring its effects, combined with his knowledge from reviewing the literature discussed above, qualify him as an expert on causation. He can assist the trier of fact with the issue of how diagnosing SMVT at an earlier time — with the corresponding administration of heparin — would have affected Plaintiff's injuries. Defendants' issues with Dr. Goldstein's experience or knowledge can similarly be challenged on cross-examination. Therefore, Defendants' motion to exclude Dr. Goldstein's testimony on causation will be denied.
A motion for summary judgment will be granted only if there exists no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The moving party bears the burden of showing that there is no genuine dispute as to any material fact.
Plaintiffs' claims are for medical malpractice, "which includes the elements of duty, breach, causation, and harm." Barnes v. Greater Balt. Med. Ctr., 210 Md.App. 457, 480 (2013). To prove causation, Plaintiffs have "to establish that but for the negligence of the [Defendants], the injury would not have occurred. Because of the complex nature of medical malpractice cases, expert testimony is normally required to establish breach of the standard of care and causation." Id. at 481 (internal citations omitted). Defendants' motion for summary judgment is premised entirely on the court granting their motion to exclude Dr. Goldstein's expert testimony on causation. Defendants argue that Dr. Goldstein is the only expert who testified as to causation, so if Dr. Goldstein's causation testimony is excluded, Plaintiffs will have failed to satisfy that element of their prima facie case. (See generally ECF No. 50). Because their motion to exclude will be denied, so too will their motion for summary judgment.
Plaintiffs argue that Defendant Weatherby Locums, Inc. is liable for the negligence of Defendant Hill as her employer under the doctrine of respondeat superior. Weatherby Locums moved for summary judgment, arguing that Dr. Hill is not its employee, but merely an independent contractor. Additionally, Weatherby Locums argues that Plaintiffs have not demonstrated any genuine issue of material fact that Weatherby Locums had apparent authority over Dr. Hill.
Generally speaking, a principal is vicariously liable for the negligence of another when the two share a master-servant or employer-employee relationship, but not if the other is merely an independent contractor of the principal. Hunt v. Mercy Med. Ctr., 121 Md.App. 516, 545 (1998). The distinction between a servant and an independent contractor lies in the degree of control exerted by the employer. Danner v. Int'l Freight Sys. Of Washington, LLC, 855 F.Supp.2d 433, 454-55 (D.Md. 2012) (applying Maryland law). In Balt. Harbor Charters, Ltd. v. Ayd, 365 Md. 366, 387 (2001), the Court of Appeals of Maryland said: "[T]he test in determining whether a person is a servant or an independent contractor is whether the employer has the right of control over the employee in respect to the work to be performed." (citation omitted). A "servant is a person who is employed to perform. . . services for another . . . and who, in respect to his physical movements in the performance of the service, is subject to the other's control or right of control." Green v. H & R Block, Inc., 355 Md. 488, 508-09 (1999) (quoting Globe Indemnity Co. v. Victill Corp., 208 Md. 573, 581 (1956) (quotation marks omitted)). Conversely, an independent contractor is generally "free to exercise his own judgment and discretion as to the means and assistants that he may think proper to employ about the work, exclusive of the control and direction, in this respect, of the party for who the work is being done." Balt. Harbor Charters, 365 Md. at 387 n.15 (citation and quotation marks omitted). Notably, "[t]he reservation of some control over the manner in which work is done does not destroy the independent contractor relationship where the contractor is not deprived of his judgment in the execution of his duties." Brooks v. Euclid Sys. Corp., 151 Md.App. 487, 510 (2003).
Weatherby Locums argues that Dr. Hill was an independent contractor. Weatherby Locums and Dr. Hill entered into a "Physician Professional Services Agreement" which explained that "Weatherby desires to engage [Dr. Hill] on an independent contractor basis to furnish locum tenens physician services to Weatherby clients. [Dr. Hill] desires to provide independent contractor locum tenens physician services through Weatherby to clients." (ECF No. 44-2, at 1). In support of its position, Weatherby points to two clauses of its contract with Dr. Hill. Sections 1.5 and 1.6 obligate Dr. Hill to "faithfully and diligently render Services pursuant to the highest professional and ethical standards and in accordance with accepted standards of care," and provide that she "shall exercise independent judgment and control over the provision of Services." This, according to Weatherby Locums, demonstrates that it retained no control over Dr. Hill's independent medical decisions and thus Dr. Hill is an independent contractor. This view is confirmed by Section 1.12 which states that "Weatherby Locums's interest is in the final result of arranging for medical coverage and not in making specific medical decisions. As an independent contractor, [Dr. Hill] is not an employee of Weatherby or [SMH] for any purpose." In addition, Weatherby's service agreement with SMH states that "[e]ach Physician is an independent contractor of Weatherby. . . . Weatherby's interest is in furnishing Physician coverage; Weatherby does not make clinical decisions for Physicians and does not otherwise direct or control the clinical services furnished by Physicians." (ECF No. 44-5, § 2.B). Weatherby maintained this position in its answers to Plaintiffs' interrogatories. (See ECF No. 44-4).
Plaintiffs counter that the agreement between Weatherby Locums and Dr. Hill places numerous restrictions and requirements on Dr. Hill which "amount to an agent being subject to the principal's control over the result or ultimate objectives of the agency relationship." (ECF No. 47-1, at 7). Plaintiffs see section 1.6 in a very different light. Specifically, its clause requiring Dr. Hill to provide necessary clinical documentation to the hospital in a timely manner or be considered in a material breach constitutes much more than a mere reservation of control. Other sections indicate Weatherby Locums's control of Dr. Hill's work. Section 3.0 places a noncompete clause on Dr. Hill: during the term of the agreement and for twelve months thereafter, she is not to provide services to client hospitals unless through Weatherby Locums or directly compete with client hospitals' practices. Section 4.1e provides Weatherby the right to cancel the agreement immediately if it is Weatherby Locums's reasonable determination that Dr. Hill has failed to perform her physician duties "in accordance with the highest professional and ethical standards," a standard higher than the standard imposed by law. Section 5.1 gives Weatherby Locums permission to use Dr. Hill's name as a reference in the normal course of business, and Section 5.4 provides that all data received from Dr. Hill or on Dr. Hill's behalf in connection with the agreement is the property of Weatherby Locums. Finally, Section 5.E of the Weatherby-SMH agreement explains that should SMH desire to remove Dr. Hill for professional incompetence, Weatherby Locums "reserves the right to first counsel [Dr. Hill] and provide an opportunity for [Dr. Hill] to correct any deficiencies prior to any such removal if, in its reasonable discretion, there is no risk of patient endangerment." Plaintiffs contend that this clause indicates that even if SMH wanted to fire Dr. Hill, it could not do so because Weatherby Locums held ultimate control over Dr. Hill.
In its reply, Weatherby Locums dismisses most of Plaintiffs' contentions as not relevant to whether Weatherby Locums actually controlled Dr. Hill as an employer controls its employee. Weatherby Locums argues that, regardless, a principal having some control over how the work is done does not destroy the independent contractor relationship where the contractor maintains judgment in the execution of his duties, citing Brooks. Section 1.2 of the agreement between Weatherby Locums and Dr. Hill left Dr. Hill with a large degree of autonomy, allowing her to refuse any assignment. This fact was confirmed in Dr. Hill's deposition, where she also stated that Weatherby Locums did not control her hours in any way. (ECF No. 44-3 at 3, Trans. 16:9-21). Furthermore, Section 4.3 provides that either party could terminate any assignment or the entire agreement with thirty days notice.
The contractual relationship between Dr. Hill and Weatherby Locums permitted Dr. Hill to practice medicine with complete autonomy. Many aspects of the contract Plaintiffs cite are peripheral issues that do not go to the ultimate question of whether Dr. Hill retains control over the manner by which she performs her duties, namely the practice of medicine. Such control exerted by Weatherby Locums does not convert an independent contractor relationship into one of employeremployee. While the Maryland Court of Appeals has held that "[t]he existence of an agency relationship is a question of fact which must be submitted to the factfinder if any legally sufficient evidence tending to prove the agency is offered," Faya v. Almaraz, 329 Md. 435, 460 (1993), no such evidence has been provided by Plaintiffs. Cf. Lopez-Krist v. Salvagno, No. ELH-12-01116, 2013 WL 5705437, at *13 (D.Md. Oct. 17, 2013) (summary judgment for medical center improper where contract between doctor and medical center gave doctor control over most medical decisions, medical center retained ability to control schedule to some extent and to overrule his decisions in particular circumstances). Accordingly, Weatherby's motion for summary judgment will be granted on the issue of actual authority.
Maryland has adopted the Restatement (Second) of Agency, § 267 (1958) in determining the existence of an apparent agency relationship, which states:
See Mehlman v. Powell, 281 Md. 269, 273 (1977). The Maryland Court of Appeals has explained that the doctrine contains two tests:
Chevron, U.S.A., Inc. v. Lesch, 319 Md. 25, 35 (1990) (citation omitted). In order to recover on this theory, in addition to showing that Dr. Hill was negligent and her negligence was a proximate cause of Plaintiffs' injuries, Plaintiffs must show that: (1) they were misled by Weatherby Locums into believing that Dr. Hill was an employee of Weatherby Locums; (2) this belief was objectively reasonable under all the circumstances; and, (3) they relied on the existence of that relationship in making their decision to entrust Dr. Hill with Ms. Whitfield's care. Id. at 34-35. In regard to the third requirement, "[t]he mere fact that acts are done by one whom the injured party believes to be the defendant's servant is not sufficient to cause the apparent master to be liable. There must be such reliance upon the manifestation as exposes the plaintiff to the negligent conduct." Id. at 35 (quoting Restatement (Second) of Agency, § 267 cmt. A (1958)).
Plaintiffs bear the burden to show that appearances created by Weatherby Locums led them to believe that Dr. Hill was an agent of Weatherby Locums. JAI Med. Sys. Managed Care Org., Inc. v. Bradford, 209 Md.App. 68, 78 (2012). Plaintiffs make no such attempt, instead relying exclusively on the apparent "special relationship" between hospital and physician established in Mehlman. In Mehlman, the plaintiff went to a hospital's emergency room for care. Plaintiff had no knowledge that the emergency department was not operated by the hospital, but rather by an independent contractor. A physician who was an employee of the contractor was negligent in his care for plaintiff. Plaintiff sued the hospital, but the hospital argued that it could not be held vicariously liable for the actions of an independent contractor. The Court of Appeals rejected this argument:
281 Md. at 274.
Unlike the hospital in Mehlman though, Weatherby Locums is one step further removed from physician-patient relationship, for not only is Dr. Hill not its actual employee, but it made no representations to Plaintiffs to lead them to believe that Dr. Hill was apparently its employee. Southern Maryland Hospital was the entity presenting itself to the community as available to provide care. Weatherby Locums was nowhere to be found.
Plaintiffs address this inconvenient fact by arguing that Weatherby Locums should be considered equivalent to SMH for the purposes of apparent authority because it and SMH have established a "joint venture relationship." According to Plaintiffs, by entering into an agreement to furnish physicians for the time periods requested, Weatherby Locums and SMH became joint-partners, such that any representations SMH made to Plaintiffs were also made by Weatherby Locums.
Plaintiffs cite no case law to support such a proposition and none has been found. It does not follow that merely contracting with another for services establishes a joint partnership.
Finally, Defendants filed a joint motion to withdraw certain exhibits to their joint motion in limine and their joint motion for summary judgment and replace those exhibits with redacted versions.
Exhibit 4 to the motion in limine was filed in four parts totaling nearly 200 pages. The proposed redacted exhibit contains only 17 pages. A cursory examination of the other portions of Exhibit 4 reveals instances of personal identifying information that was not marked for redaction. (ECF No. 49-7, at 30 (full birthdate)). Defendants submitted a "redacted" version of Dr. Olden's deposition transcript which was part of their motion in limine (Exhibit 11) and their motion for summary judgment (Exhibit 6). Review of the proposed redacted version reveals nothing marked for redaction. This is understandable, as no personally identifying information is apparent. The motion will be granted and Defendants will be provided fourteen (14) days from the date of this Order to provide a redacted version of the remaining portion of Exhibit 4 and to clarify why Dr. Olden's deposition transcript requires redaction.
For the foregoing reasons, the motion for summary judgment filed by Defendant Weatherby Locums will be granted. The motion for summary judgment filed jointly by Defendants will be denied. The motion to withdraw and replace documents filed jointly by Defendants will be granted. A separate order will follow.
