Dean v. US Air Force ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
YVONNE L. DEAN,
Plaintiff-Appellant,
v. No. 99-2222
UNITED STATES AIR FORCE,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-97-1951-JFM)
Submitted: March 23, 2000
Decided: March 31, 2000
Before LUTTIG, WILLIAMS, and MICHAEL,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Yvonne L. Dean, Appellant Pro Se. Roann Nichols, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Plaintiff Yvonne L. Dean appeals the grant of summary judgment
in favor of the United States Air Force in her medical malpractice
action. We affirm.
Dean's complaint, as liberally construed by the district court,
alleges that Air Force medical personnel performed negligently when
treating her in Japan and Maryland. Her chief assertion is that she has
suffered continuous stress and other symptoms due to surgical clips
left in her abdomen during a hernia operation.
The district court dismissed all claims relating to medical services
provided in Japan, and Dean has not challenged that ruling on appeal.
Regarding Dean's claims arising from treatment received in Mary-
land, the court properly granted the Air Force's motion for summary
judgment because Dean had not proffered any expert evidence estab-
lishing a link between the surgical clips and her symptoms. Dean
notes the record contains a letter from an Air Force lawyer expressing
sympathy for her condition, as well as several doctors' notes alluding
to the clips in her abdomen. None of this material, however, amounts
to an expert determination of negligence or harm to Dean. Maryland
law requires such expert testimony in malpractice cases, "[e]xcept in
cases where the medical negligence alleged is of such gross and obvi-
ous nature that a layman can comprehend the breach of care." Karl
v. Davis, 639 A.2d 214, 218-19 (Md. Ct. Spec. App. 1994); accord
Holzhauer v. Saks & Co., 697 A.2d 89, 94-95 (Md. 1997). As this
case does not fall into the exception for obvious malpractice, the dis-
trict court properly granted summary judgment in favor of the Air
Force.
Dean's two remaining claims are unavailing. First, she faults the
district court for not giving her time to retain an expert. The court
granted two continuances for this purpose, however; the denial of a
third was within the court's discretion. See United States v. Lawrence,
161 F.3d 250, 254 (4th Cir. 1998), cert. denied , 526 U.S. 1031(1999). Second, Dean raises an ambiguous claim relating to disclo-
sure of medical records. As this issue was not presented below, it is
2
waived. See Skipper v. French, 130 F.3d 603, 610 (4th Cir. 1997)
(noting general rule that theories presented for the first time on appeal
will not be considered).
For these reasons, we affirm the district court's order. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
3