Clemente v. Roth , 171 F. App'x 999 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1477
JOSEPH CLEMENTE, Administrator of the Estate
of Paige Denise Prentice,
Plaintiff - Appellant,
versus
JOHN P. ROTH, Representative of the Estate of
Charles R. Cardany, M.D., deceased; UNITED
STATES OF AMERICA,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. William Connelly, Magistrate Judge. (CA-
01-865-WGC)
Argued: March 21, 2006 Decided: April 20, 2006
Before WILKINS, Chief Judge, and WILLIAMS and SHEDD, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Theresa M. Blanco, EATON & MCCLELLAN, Philadelphia,
Pennsylvania, for Appellant. Karen Roberts Turner, HAMILTON,
ALTMAN, CANALE & DILLON, L.L.C., Bethesda, Maryland; Tarra R.
DeShields-Minnis, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellees. ON BRIEF: Allen Theophilus Eaton, III,
THE EATON LAW FIRM, P.L.L.C., Washington, D.C., for Appellant.
Nadira Clarke, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for the United States, Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Joseph Clemente, Administrator of the Estate of Paige Denise
Prentice, appeals three rulings in this suit arising out of
Prentice’s medical treatment for breast cancer. Finding no error,
we affirm.
I.
In 1993, Dr. Charles R. Cardany contracted with the National
Institutes of Health (NIH), which the United States owns and
operates, to serve as an independent contractor performing medical
services, including plastic surgery, for NIH’s patients. This
contract was renewed annually through the time period relevant to
this case.
Prentice was diagnosed with breast cancer in February 1997.
She approached NIH, hoping to take part in a study concerning
preoperative chemotherapy. Although NIH officials determined that
Prentice was not a good candidate for the study, they informed her
that she could undergo a bilateral mastectomy and a simultaneous
breast reconstruction at NIH. When Prentice decided to do so, NIH
assigned her Dr. David Danforth for the mastectomy and Dr. Cardany
for the reconstruction.
The doctors performed the surgery on April 23, 1997. Prentice
had a follow-up appointment with Dr. Cardany in approximately June
1997, at the end of which Dr. Cardany asked Prentice to dinner.
Thus began a six-week consensual sexual relationship.
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During this relationship, Prentice developed an infection with
her implants. When Prentice asked Dr. Cardany about the implants,
he told her there was no problem. However, when Prentice
subsequently developed a high fever, Dr. Cardany sent her to
another physician who informed her that the implants would need to
be removed. Dr. Cardany performed the procedure.
Sometime in 1999, Prentice was diagnosed with advanced
metastic cancer, from which she eventually died on July 21, 2001.
Before her death, Prentice filed a medical malpractice suit against
John P. Roth, the Personal Representative of Dr. Cardany, who had
died following the events at issue in the suit. Prentice
maintained that the complications with her implants and the long
recovery period following her breast reconstruction delayed her
chemotherapy. After Prentice’s death, Clemente was substituted for
her as a party. He amended the complaint in December 2001, adding
a claim against the United States based on Dr. Cardany’s negligence
and on NIH’s negligence in hiring Dr. Cardany. The United States
moved to dismiss the claim against it on the ground that, because
Dr. Cardany was an independent contractor rather than an employee,
the Government was protected from liability for any malpractice by
Dr. Cardany under the Federal Tort Claims Act, see
28 U.S.C.A. § 1346(b) (West Supp. 2005). The district court
granted the motion with regard to any claim of vicarious liability
for Dr. Cardany’s negligence, but granted Clemente leave to amend
the complaint once more to clarify the negligent hiring claim.
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Prentice’s second amended complaint alleged four causes of
action, only the first two of which are relevant to this appeal.
The first alleged negligence on the part of Dr. Cardany in advising
Prentice of the risks attendant to the procedure employed in the
breast reconstruction surgery and in diagnosing and treating her
infection. The second alleged negligence by NIH in hiring and
retaining Dr. Cardany. That count alleged that Dr. Cardany was
under active supervision by the Maryland Board of Physician Quality
Assurance for a substance abuse problem and that NIH failed to make
an adequate investigation before granting privileges to Dr. Cardany
and selecting him to operate on Prentice (the “negligent
credentialing claim”). The United States moved to dismiss, or in
the alternative, for summary judgment. The district court granted
summary judgment against Clemente on the negligent credentialing
claim, concluding that he had failed to create a genuine issue of
material fact regarding whether the hospital would have rejected
Dr. Cardany’s application had it known all of the relevant facts.
Clemente thereafter amended his complaint once again, this
time to allege that Dr. Cardany committed malpractice by engaging
in a sexual relationship with Prentice and to request punitive
damages based on Dr. Cardany’s allegedly willful, wanton, and
reckless conduct. In light of the amendment, the parties agreed
that the trial would be bifurcated, with a first trial resolving
liability and damages unrelated to the sexual relationship, and
with all issues relating to the sexual relationship to be
determined in a separate trial.
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After the first trial, the jury returned a verdict in Roth’s
favor on the negligence issues, leaving for resolution only the
claim of malpractice arising out of the sexual relationship. Roth
successfully moved in limine, prior to the trial of this claim, to
exclude as inadmissible hearsay a letter written by Prentice to
Dr. Danforth. The letter concerned the decision of what plastic
surgeon would be chosen to complete Prentice’s breast
reconstruction after the removal of her implants. In the letter,
Prentice asked Dr. Danforth to refer her to two plastic surgeons so
that she could meet with them and then select the one she
preferred. She noted that “[t]he fundamental ethical boundaries
broken by Dr. Cardany and the low level of care provided by him
ha[d] left [her] feeling extremely violated and depressed,” such
that she felt that she needed “extra support from [Dr. Danforth]
and NIH in obtaining peace of mind and good health in a timely
manner.” J.A. 538.
The district court rejected Clemente’s contention that the
letter was admissible under the business records exception to the
hearsay rule because Prentice, the supplier of the information in
the letter, did not prepare the letter “in the course of a
regularly conducted business activity.” Fed. R. Evid. 803(6); see
Rowland v. Am. Gen. Fin., Inc., 340 F.3d 187, 194-95 (4th Cir.
2003). And, the court ruled that the letter could not come in as
a statement for purposes of medical diagnosis or treatment because
the information was not of the type that would have been reasonably
relied on by a physician in treatment or diagnosis. See Fed. R.
5
Evid. 803(4); Morgan v. Foretich, 846 F.2d 941, 949 (4th Cir.
1988).
Subsequently, the second trial commenced without a jury. At
the close of evidence, the district court found against Clemente.
As is relevant here, the court concluded that Dr. Cardany’s sexual
relationship with Prentice would not constitute medical malpractice
under Maryland law. The court found it persuasive that courts from
other jurisdictions had held almost unanimously that, other than a
mental health professional or a doctor who essentially takes on the
role of a mental health professional, a doctor who does not induce
his patient to have sexual relations with him as necessary for
medical treatment does not commit medical malpractice simply by
engaging in sexual relations with his patient. See Gunter v.
Huddle, 724 So. 2d 544, 546 (Ala. Civ. App. 1998); Korper v.
Weinstein, 783 N.E.2d 877, 879-80 (Mass. App. Ct. 2003); Odegard v.
Finne, 500 N.W.2d 140, 143 (Minn. Ct. App. 1993); Iwanski v. Gomes,
611 N.W.2d 607, 614 (Neb. 2000); Darnaby v. Davis, 57 P.3d 100, 104
(Okla. Civ. App. 2002). But see Hoopes v. Hammargren, 725 P.2d
238, 242-43 (Nev. 1986) (holding that patient who engaged in
consensual sexual relations with her doctor while they had an
ongoing doctor-patient relationship may establish liability against
doctor for breach of fiduciary duty if she shows that the doctor
“held a superior authoritative position in the professional
relationship,” “that, as a result of [the patient’s] illness, she
was vulnerable,” and that the doctor proximately caused her harm by
“exploit[ing] the vulnerability”).
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II.
Clemente challenges the orders granting summary judgment
against him on the negligent credentialing claim and granting
judgment against him on the claim based on the sexual relationship.
Clemente also contends that the district court erred in excluding
from evidence Prentice’s letter to Dr. Danforth. Having reviewed
the record, the parties’ briefs, and the applicable law, and having
had the benefit of oral argument, we find no error and affirm on
the reasoning of the district court.
AFFIRMED
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