Brown v. United States

Full title: Harrey Anthony Brown, and Kesha Lynette Brown, Plaintiffs, v. United…

Court: United States District Court, D. South Carolina, Charleston Division

Date published: Jun 14, 2023

2:21-cv-03801-DCN-MGB (D.S.C. Jun. 14, 2023)

Opinion

2:21-cv-03801-DCN-MGB

06-14-2023

Harrey Anthony Brown, and Kesha Lynette Brown, Plaintiffs, v. United States of America; Dr. George J. Kallingal; and Dr. Grace E. Park, Defendants.

MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE.

REPORT AND RECOMMENDATION

MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE.

Harrey Anthony Brown (“Mr. Brown”) and Kesha Lynette Brown (“Mrs. Brown”) (collectively, “Plaintiffs”), proceeding pro se, bring this civil action pursuant to the Federal Tort Claims Act (“FTCA”) challenging a medical procedure Mr. Brown received at the Brooke Army Medical Center (“BAMC”) in Texas, in May 2019. This matter is before the Court on the parties' cross Motions for Summary Judgment and Defendants' Motion for Certification.¹(Dkt. Nos. 61; 75.) Under Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. For the reasons set forth herein, the undersigned recommends that the Court deny Plaintiffs' Motion for Summary Judgment, grant Defendants' Motion for Certification, and grant in part and deny in part Defendants' Motion for Summary Judgment.

1 The Gonzalez Act immunizes federal employees in the medical field . . . by allowing the United States to substitute itself as a defendant upon certification by the Attorney General that the medical employee was acting within the scope of his employment at the time of the incident out of which the suit arose. 10 U.S.C. § 1089(c).

BACKGROUND

The instant case stems from a medical procedure Mr. Brown received in May 2019. Specifically, Plaintiffs allege that Defendant George Kallingal, a “urology oncology surgeon” at BAMC, recommended that Mr. Brown undergo a robotic-assisted laparoscopic radical prostatectomy to treat his prostate cancer. (Dkt. No. 46 at 6.) Plaintiffs allege they consented to the surgery, with the understanding that Dr. Kallingal would serve as the primary surgeon “with no resident involvement.” (Id.) According to Plaintiffs, Defendant Grace Park, a resident physician at BAMC, was thereafter reassigned as the primary surgeon on the procedure. (Id. at 6-7.) Plaintiffs allege that although Dr. Park “lacked the required skill and experience to effectively perform the complex surgical procedure,” no one informed them of her status as a resident or sought their permission prior to her performing the surgery. (Id.) Instead, Plaintiffs claim that Dr. Kallingal falsified an informed consent form by forging Mr. Brown's signature. (Id. at 7.) Plaintiffs also allege that Dr. Park altered Mr. Brown's surgical dictation notes and filed a falsified surgical counseling session. (Id.)

According to Plaintiffs, Dr. Park performed the procedure on or around May 9, 2019 without Mr. Brown's consent. (Id.) Plaintiffs allege that Dr. Kallingal and Dr. Alexander Ernest (“Dr. Ernest”) had a duty to supervise Dr. Park but allegedly failed to do so. (Id. at 8.) Plaintiffs allege that due to Dr. Park's alleged lack of skill and experience, the procedure resulted in “severe post-operative complications,” including “a life-threatening illness and physical injuries to [Mr. Brown's] body.” (Id.) Mr. Brown has allegedly been required to undergo additional medical procedures to treat the resulting injuries. (Id. at 8, 11-12.) The Amended Complaint alleges claims against Dr. Park, Dr. Kallingal, and Dr. Ernest for negligence based on medical battery and medical malpractice and a negligence claim based on respondeat superior liability against BAMC. (Id. at 10-11.)

On February 10, 2023, the Court granted in part and denied in part Defendants' Motion to Substitute Party. (Dkt. Nos. 26; 72.) Pursuant to that Order, BAMC and Dr. Alexander Ernest were dismissed as defendants and the United States was substituted as the party for them. (Dkt. No. 72.) The Court denied, however, Defendants' request to substitute the United States in place of Defendants Kallingal and Park. (Id.) On November 15, 2022, prior to the discovery deadline, Plaintiffs filed a Motion for Summary Judgment. (Dkt. No. 61.) Defendants filed a response in opposition on November 29, 2022 (Dkt. No. 62), to which Plaintiffs replied on December 2, 2022 (Dkt. No. 63.) On April 3, 2023, Defendants filed a Motion for Summary Judgment and Motion for Certification. (Dkt. No. 75.) Plaintiffs filed a 71-page brief in opposition on April 13, 2023 (Dkt. No. 79), and Defendants did not file a reply. The motions are ripe for review.

STANDARD OF REVIEW

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

In ruling on a motion for summary judgment, “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). Conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.

Because Plaintiffs are representing themselves, these standards must be applied while liberally construing their filings in this case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

DISCUSSION

As noted above, the parties have filed cross Motions for Summary Judgment, and Defendants have also moved for certification. In their Motion for Summary Judgment, Plaintiffs argue that the evidence shows they are entitled to summary judgment as a matter of law with respect to their negligence claims in this action. (Dkt. No. 61.) In their Motion for Summary Judgment, Defendants argue that Plaintiffs have failed to sufficiently establish any of their claims, and this action should be dismissed. (Dkt. No. 75.) Defendants also move “to certify Defendants Kallingal and Park and dismiss them as individual defendants.” (Id. at 1.) Before considering Plaintiffs' claims, the undersigned first summarizes the evidence in the record.

A. Evidence

1. Affidavit and Deposition Testimony; Medical Records

Defendants have submitted affidavits from Dr. Kallingal, Dr. Park, and third-party Dr. Nancy Gillcrist, as well as portions of Plaintiffs' deposition testimony. Both parties have submitted portions of Mr. Brown's medical records. In his affidavit, Dr. Kallingal avers to the following: Mr. Brown was diagnosed with prostate cancer in December 2018. (Dkt. No. 75-5 at 1.) Mr. Brown developed “severe sepsis/prostate infection after his biopsy at the VA Hospital.” (Id.) “After the Browns refused care to return to the VA, they were seen by BAMC Urology (Dr. Jellison on 28 Jan 2019).” (Id. at 2.) “He did not want the recommended surveillance for his cancer and he was then referred to a Urologic Oncologist at BAMC (Dr. Morales)² on 4 Feb 2019 for more counseling and surgical planning.” (Id. at 2.) In his affidavit, Dr. Kallingal quotes portions of Dr. Morales' notes from the February 4, 2019 counseling visit, including:

2 Third-parties Dr. Jellison and Dr. Morales are only mentioned in Dr. Kallingal's affidavit. It is unclear if Dr. Morales was involved in Mr. Brown's medical care beyond the February 4, 2019 consultation.

In particular, counseling was given to his treatment options for very low risk prostate cancer which include watchful waiting, active surveillance, and, if desired active treatment with either external beam radiotherapy or surgery. . . Given the very low risk disease and age of the patient, watchful waiting versus active surveillance was discussed in greater detail. I have counsel[e]d the patient again on active surveillance, as he is very young to suffer near lifelong issues with incontinence and impotence, even with the best and most careful procedure. I have counseled the patient that there exist alternate biopsy pathways, such as transperineal, with a much lower incidence of urosepsis, and that my preference would be to obtain an MRI 6 months from previous biopsy and re-biopsy in a targeted, transperineal fashion after that (MAY-JUN 2019). The patient still prefer[s] surgery, but will attend 13 FEB 2019 CPCC, where this can be discussed in more detail....

(Id.)

While Dr. Morales' medical note indicates Plaintiffs were to attend the Comprehensive Prostate Cancer Clinic (“the Clinic”) at BAMC on February 13, 2019, Dr. Kallingal's affidavit testimony and the submitted medical records for Mr. Brown indicate Plaintiffs attended the Clinic on March 27, 2019. (Id. at 2, 4-5.) According to Dr. Kallingal, during the Clinic, Plaintiffs were counseled on prostate cancer treatment options. Dr. Kallingal avers he first interacted with Plaintiffs during this Clinic. After counseling Mr. Brown on the different “treatment options,” Mr. Brown “chose to undergo a robotic prostatectomy with lymph node dissection.” (Id. at 2.) Dr. Kallingal avers that he discussed this procedure with Plaintiffs, “including risks of infection, pain, bleeding, injury, leakage of fluid, injury to rectum, bowel, ureters or other structures, needing additional surgery or procedures, and risks of anesthesia among others.” (Id.) Dr. Kallingal avers,

At no time did I make any representation that I would perform the surgery alone. A robotic assisted laparoscopic prostatectomy cannot be performed by one person. Standard procedure for any robotic surgery requires an assistant surgeon to sit at the bedside to help during the surgery with positioning the patient, adjusting the robotic ports and instruments and inserting sutures and laparoscopic instruments into the body. I am the console surgeon, who is controlling the robotic instruments. The resident typically assists at the bedside.

(Id. at 3.)

Dr. Kallingal has attached to his affidavit BAMC records containing his notes from the March 27, 2019 visit. (Id. at 4-5.) He has also attached records showing Mr. Brown reported to BAMC on May 6, 2019 for bloodwork and a urine sample. (Id. at 6-8.) Dr. Kallingal avers Mr. Brown also reported to BAMC on May 8, 2019 for “preoperative clearance with Dr. Grace Park, which included having his vitals taken and reading the results of his urine sample to insure that he did not have any active infections prior to surgery and ensuring there is the appropriate documentation needed for surgery.” (Id. at 3.) Dr. Kallingal avers that the “residents handle the preoperative visits in [his] standard practice” and they “include [his] prior counseling notes in the preoperative note as evidence of prior counseling.” (Id.)

Dr. Kallingal avers that he performed the surgery on May 9, 2019, after “verif[ying] Mr. Brown's informed consent³to perform the robotic assisted laparoscopic prostatectomy.” (Id.) He continues,

3 It appears that the “informed consent” referenced here is the document titled “Request for Administration of Anesthesia and for Performance of Operations and Other Procedures,” which Mr. Brown signed at 9:25AM on May 9, 2023. (Dkt. No. 75-9 at 3.) As discussed further herein, this form states that the robotic-assisted laparoscopic prostatectomy is “to be performed by or under the direction of” Dr. Kallingal and “other staff and Resident team.” (Id.) It also states, inter alia, that “The nature and purpose of the operation or procedure, possible alternative methods of treatment, the risks involved, and the possibility of complications have been fully explained to me.” (Id.) Dr. Kallingal does not aver that he obtained Mr. Brown's informed consent on this form. Rather, as discussed below, discovery has shown that a third-party obtained Mr. Brown's signature on this form.

As the attending surgeon, I control the robot and perform the operation. Dr. Grace Park performed perioperative matters such as positioning the patient, assisting me in placing the ports and foley catheter, and then assisting at the bedside for the case. After the case, the resident is responsible for entering the post-operative orders for admission and dictating the operative case. As the Chief Resident, Dr. Park would dictate the operative report. It is then transcribed and sent to me for review. I review, correct, and then sign the report. The actions described above by Dr. Park were under my supervision. The complications experienced by Mr. Brown were potential risks/complications that were explained to Mr. Brown.

(Id.) In support of his testimony, Dr. Kallingal has submitted the “Operative Report,” which describes the procedure and lists Dr. Kallingal as the “Primary Surgeon” and Dr. Park as one of the three assistants (Id. at 3, 9-12; Dkt. No. 61-5.) The operative report states, inter alia, that on the morning of the procedure, “The patient was met in the preoperative holding area. Informed consent was obtained. The patient was then brought to the OR ” (Id. at 10.)

Dr. Park has submitted an affidavit in which she avers that she served as the “Chief Resident in Urology” at BAMC from 2018-2019. (Dkt. No. 75-6 at 1.) Dr. Park denies that she has “altered or fraudulently created any medical records regarding Harrey Brown or any other patient.” (Id.) She avers that her “first personal contact with Mr. Brown was on May 8, 2019,” when she “performed the operative clearance.” (Id.) She has submitted her notes from this May 8, 2019 visit. (Id. at 6-8.) Her notes include Mr. Brown's vital signs taken by Jesse E. Keller on May 9, 2019 at 9:07 AM. (Id. at 6.) Her notes also document that Dr. Park discussed with Plaintiffs “options including surgery, radiation, and surveillance. Surgery is a robotic radical prostatectomy ....The drawbacks include the need for surgery, associated anesthetic risks, a risk of erectile dysfunction, and risks of urinary incontinence.” (Id. at 8.) The notes state that Mr. Brown “has chosen surgery as he does not want radiation or to continue surveillance. I advised him to follow up with Dr. Morales for open surgery, however he prefers robotic approach. Will have him scheduled.” (Id.)

Dr. Park avers that she “did not provide the informed consent form for Mr. Brown on May 9, 2019,” and it appears the form contains “the signature of Nancy Gillcrist,” not Dr. Park. (Id. at 1-2.) Dr. Park avers that during Mr. Brown's surgery on May 9, 2019, “Dr. Kallingal operated the robot while [she] performed matters such as positioning the patient, helping with prepping and draping the patient, and assisting at the bedside as a first assist during the procedure.” (Id. at 2.) She avers that while Mr. Brown “experienced some complications after his surgery, . . . per the informed consent form in Mr. Brown's BAMC record,⁴ the potential risks/complications were explained” to him. (Id.)

4 Here, it appears Dr. Park is referencing the document signed by Mr. Brown on May 9, 2019, consenting to the robotic-assisted laparoscopic prostatectomy being “performed by or under the direction of” Dr. Kallingal and “other staff and Resident team.” (Dkt. No. 75-9 at 3.)

Defendants have also submitted an affidavit from third party Dr. Nancy Gillcrist, “a resident physician in Urology.” (Dkt. No. 75-9 at 1.) Dr. Gillcrist avers that she served as a “General Surgery Intern” at BAMC during the time period at issue. (Id.) She has attached to her affidavit the document titled “Request for Administration of Anesthesia and for Performance of Operations and Other Procedures,” which Mr. Brown signed at 9:25AM on May 9, 2023. (Id. at 3.) This form states that the robotic-assisted radical prostatectomy is “to be performed by or under the direction of” Dr. Kallingal and “other staff and Resident team.” (Id.) It also states, inter alia, that “The nature and purpose of the operation or procedure, possible alternative methods of treatment, the risks involved, and the possibility of complications have been fully explained to me.” (Id.) Dr. Gillcrist avers that while the printed name under the designated “Signature of Counseling Physician/Dentist” states “George Joesph Kallingal, LTC, USA, MC,” she recognizes the “electronic signature” as her own. (Id. at 1, 3.) Dr. Gillcrist avers that while she does not recall this event, “as the intern I was often involved in the pre-operative phase and consenting protocol.

As a standard, when I performed consent I would inform the patient of my position/role and that I was a part of their surgeon's team.” (Id.) Dr. Gillcrist avers that it “was a common practice at BAMC for an intern/resident to explain the procedure to patients and have the patient sign the consent form via a tablet or laptop.” (Id.)

Throughout their unverified pleadings, Plaintiffs deny that it is Mr. Brown's signature on the May 9, 2019 consent form submitted with Dr. Gillcrist's affidavit. In a reply brief, Plaintiffs claim “[t]he signature on the document is completely different than any verified signature of Mr. Brown.” (Dkt. No. 63 at 6.) In support of this allegation, they have attached a “catalog of Mr. Brown's authentic signature from legal documents . . . [that] will show the forged signature deviates from Mr. Brown's standard signature.” (Id.; Dkt. Nos. 63-2-63-5.)

Defendants have submitted portions of Plaintiffs' deposition testimony in support of their Motion. In his deposition, Mr. Brown admitted that “various doctors tried to dissuade” him from treating his prostate cancer with surgery. (Dkt. No. 75-1 at 2.) Mr. Brown testified that he only spoke to Dr. Kallingal on March 27, 2019. (Id. at 4.) He also recalled going to BAMC on May 6, 2019 for “lab work” and on May 8, 2019 to sign the “consent form to do the anesthesia.”⁵(Id. at 5-6.) Mr. Brown denied meeting with Dr. Park on May 8, 2019. (Id. at 6.) He testified he met with Dr. Park the day of his surgery and signed a consent form, but he did not read the form. (Id. at 78, 10.) According to Mr. Brown, Dr. Park did not tell him that she would be performing the surgery or assisting with the surgery. (Id. at 10.) Mr. Brown believed that Dr. Park wanted “to make it look” as if he had consented to her performing the surgery, so she made “a note saying that she sat down with” Plaintiffs on May 8, 2019. (Id. at 11-12.) As support, he testified that Dr. Park's May 8, 2019 notes are “a duplicate” of Dr. Kallingal's March 27, 2019 notes. (Id. at 12.)

5 The record contains a document titled “Request for Administration of Anesthesia and for Performance of Operations and Other Procedures,” which Mr. Brown signed at 10:49AM on May 8, 2023. (Dkt. No. 75-7.) This form states that the anesthesia was “to be performed by or under the direction of” Dr. Kyle H. Friedman. (Id.)

Mr. Brown further testified that the computer system used at BAMC was “pretty much identical” to the one he used while working for a “teaching hospital.” (Id. at 13-16.) According to Mr. Brown, after a “note” was entered into the computer system, no changes could be made to the entry. (Id. at 14.) If a change was made to the note, it would state “addendum” on the entry. (Id.) In her deposition, Mrs. Brown testified that that they met with Dr. Park on the morning of the surgery and that Mr. Brown provided an electronic signature on a consent form during that meeting. (Dkt. No. 75-2 at 9-10.)

In addition to the above records, both parties have submitted medical records further documenting the individual Defendants' involvement in Mr. Brown's robotic-assisted radical prostatectomy. Defendants have submitted the “Anesthesia Record” for Mr. Brown's procedure on May 9, 2019, which lists Dr. Kallingal as the “Surgeon.” (Dkt. No. 75-10.) Plaintiffs have submitted a “Nurse Intraoperative Note” dated May 9, 2019, that lists Dr. Kallingal as the “Responsible Staff Surgeon” and Dr. Park as the “Primary Surgeon.” (Dkt. No. 61-2 at 2.) Beyond Dr. Kallingal's affidavit testimony (Dkt. No. 75-5 at 3), Defendants have presented no evidence specifically documenting that Dr. Kallingal was the “console surgeon” for Mr. Brown's procedure.

Plaintiffs have also submitted the result of an alleged polygraph test in which Mr. Brown truthfully stated that he was never informed that a resident would perform his surgery or that the surgery would be transferred to anyone else. (Dkt. No. 79-27 at 1-2.) According to Mr. Brown, “Dr. Kallingal told myself and my wife . . . he alone would be performing the surgery for me.”⁶(Id.)

6 In their response brief, Plaintiffs argue that these polygraph results render Dr. Kallingal's affidavit testimony “inadmissible” because it proves he gave false testimony. (Dkt. No. 79 at 54.) They further argue that the affidavit testimony from Dr. Park and Dr. Gillcrist is inadmissible, implying that their testimony is not based on personal knowledge. (Id. at 54-59.) In their affidavits, Dr. Kallingal, Dr. Park, and Dr. Gillcrist aver, under penalty of perjury, that their affidavit testimony “is true and correct to the best of my information knowledge and belief.” (Dkt. Nos. 755 at 3; 75-6 at 2; 75-9 at 1.) Plaintiffs offer no compelling basis to reject these averments-their arguments attack the credibility, rather than the admissibility, of the affidavit testimony. Accordingly, the undersigned finds the affidavit testimony submitted by Defendants is admissible and it has been considered herein. See Argo v. Blue Cross and BlueShield of Kansas, Inc., 452 F.3d 1193, 1200 (10th Cir. 2006) (noting that “[u]nder the personal knowledge standard, an affidavit is inadmissible if the witness could not have actually perceived or observed that which he testifies to”) (internal quotation marks omitted); Fed.R.Civ.P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”).

2. Defendants' Expert Report

Defendants have submitted a report from their expert, Dr. Daniel J. Canter, who notes that “any robotic surgery requires an assistant surgeon to sit at the bedside to help during the operation.” (Dkt. No. 75-11 at 5.) After providing a detailed factual summary of the events at issue, Dr. Canter opines, to a reasonable degree of medical certainty, that the care and treatment provided by Drs. Kallingal, Ernest, and Park “were well within the standard of care.” (Id. at 2-6.) He focuses on the care and treatment these doctors provided at BAMC “from March 2019 through August 2019 related to Mr. Brown's diagnosis of localized prostate cancer, its surgical treatment, and Mr. Brown's post-operative course.” (Id. at 1.)

In summarizing Plaintiff's post-operative care, Dr. Canter notes that in August 2019, Plaintiff was seen by Dr. Lavin of Urology San Antonio “for voiding difficulties.” (Id. at 4.) He continues,

Dr. Lavin placed a suprapubic tube (SP tube) because Mr. Brown's vesical-urethral anastomosis was completely obstructed. Because of the obstruction of Mr. Brown's vesico-urethral anastomosis, he underwent a robotic bladder neck reconstruction and urethroplasty in December 2019. Finally, Mr. Brown had an artificial urinary sphincter and inflatable penile prosthesis placed in June 2021 and September 2021, respectively, for urinary incontinence and erectile dysfunction.

(Id.)

Based on the documentation from this case and Dr. Canter's experience as (1) an attending urologic surgeon working with residents and (2) an assistant and associate residency program director in charge of educating and supervising residents, Dr. Canter opines that “the supervision of Dr. Park in both the operating room and in the post-surgical setting were well within the standard of care and totally appropriate.” (Id.).

In support of these opinions, Dr. Canter states, inter alia,

Although Mr. Brown did develop a lymphocele⁷post-operatively that required multiple hospital readmissions and procedures by Interventional Radiology, these events do not constitute a breach of the standard of care. Lymphoceles are a well-known occurrence after a robotic radical prostatectomy and bilateral pelvic lymph node dissection, and the fact that one develops is in no way indicative of a breach of the standard of care....[W]hen the lymphocele did develop, Drs. Kallingal, Ernest, and Park promptly evaluated the patient each time he returned to the emergency room and took all appropriate steps to mitigate the symptoms that arose from the lymphocele. The fact that Mr. Brown required repeat procedures to adequately drain the lymphocele as well as developing an infection is a common clinical scenario in this situation and, unfortunately, are unavoidable despite all best efforts.

In addition to lymphoceles, it is imperative to note that post-operative erectile dysfunction and urinary incontinence (uncontrollable leakage of urine) are well-recognized side effects of robotic radical prostatectomy and bilateral pelvic lymph node dissection. Even in patients who do not have any post-operative issues with a lymphocele and drain placements, erectile dysfunction and urinary incontinence routinely develops requiring surgical intervention to correct these issues. Importantly, patients who have erectile dysfunction prior to surgery, as Mr. Brown did . . ., will have further deterioration of their erectile dysfunction post-operatively. Thus, Mr. Brown's need for an inflatable penile prosthesis after surgery is more likely than not a natural progression of his underlying pathophysiology than any reflection on the quality of his surgical and post-surgical care. Similarly, his urinary difficulties, including incontinence requiring an artificial urinary sphincter, can and do occur even in patients who have no post-surgical issues.

Finally, as an attending urologist who has worked with residents for many years as well as being a former assistant and associate residency program director, I do not see in the documentation provided to me any indication of poor or inadequate resident supervision during Mr. Brown's surgery and/or his post-operative care. . . . It is important to note that any robotic surgery requires an assistant surgeon to sit at the bedside to help during the operation.

(Id. at 4-6.)

7 “Lymphocele is a postsurgical complication that develops when the lymphatic system gets damaged during surgery. This damage causes the lymph fluid to drain out from the lymphatic channel and then build up in a nearby cavity.” What is Lymphocele: Symptoms, Causes, Diagnosis, and Treatment, DocDoc, https://www.docdoc.com/medical-information/conditions/lymphocele (last visited June 9, 2023).

3. Plaintiffs' Expert Report

Plaintiffs have submitted a report from their expert, Dr. Dudley Danoff, who states he is “an award-winning Urologist” with an active clinical practice and training as a “principal investigator.” (Dkt. No. 61-3 at 2.) He states, inter alia,

After surgery, Mr. Brown experienced many complications including an anastomotic leak.⁸This type of leak is caused by the breakdown of post-surgical closure and the result is often peritonitis.⁹ Patients must be properly monitored after surgery to ensure that peritonitis does not occur. In laparoscopic prostatectomies, vesicourethral anastomotic leaks may result in significant morbidity because of the chemical and metabolic derangements created by urine within the peritoneal cavity. ..

Following his operation, Mr. Brown's clinical condition rapidly deteriorated. He underwent numerous radiological studies between May 13-30, . . . [which] overwhelming confirmed an anastomosis leakage. A Jackson-Pratt (JP) is used to drain fluid after surgery. A JP Drain was not utilized until May 22, 2019, 13 days post-prostatectomy and Mr. Brown being readmitted twice due to severe surgical complications, including collection of extravasated urine....

Radical prostatectomy is a challenging operation demanding a high level of surgical expertise and experience. The standard of medical care in performing a RALP [robotic-assisted laparoscopic prostatectomy] required Dr. Park¹⁰to: 1) use a medically accepted technique to properly identify Mr. Brown's anatomy prior to clipping and cutting structures to remove his prostate gland and attached seminal vesicles; 2) properly executing a medically accepted technique to identify Mr. Brown's anatomy prior to clipping and cutting structure to remove his prostate; and

3) refraining from clipping, cutting, and injuring Mr. Brown's ureteral orifices. An anastomotic leakage leads to significantly more severe postoperative complications, higher rate of reoperations, and higher mortality.

It is my opinion that resident Dr. Park breached the standard of medical care by failing to properly execute a medically accepted technique to properly identify Mr. Brown's anatomy prior to clipping and cutting structure to remove his prostate gland and attached seminal vesicles. Urinary leakage at the urethrovesical anastomosis is one of the most common short-term complications of radical prostatectomy, with an incidence of 0.3% to 15.4%.

Dr. Park failed to diagnose the urethrovesical anastomotic leak in a timely manner, specifically when it was clinically significant and intervention was required. Moreover, the standard for medical care required Dr. Park to timely diagnose Mr. Brown's bladder injury and transfer him to a higher level of care. Dr. Park breached the standard of care by failing to timely diagnose and treat the anastomotic leak injury, Sepsis, and bladder injury, and transfer him to a high level of care.... It is my opinion, that Dr. Park's lack of surgical expertise combined with his [sic] inexperience, breached the standard of medical care by both attending Dr. Kallingal and resident Dr. Park and substantially delayed Mr. Brown's treatment and proximately caused him to undergo additional treatment for over two years.

(Id. at 1-4.)

8 “An anastomotic leak . . . refers to the leaking of the contents of your gut when the two ends of the channel aren't sealed correctly. When this happens, the content of your gastrointestinal tract leak out.” What is an Anastomotic Leak?, WebMD, https://www.webmd.com/digestive-disorders/what-is-anastomotic-leak (last visited June 9, 2023).

9 “Peritonitis happens when the thin layer of tissue inside the abdomen becomes inflamed.” Peritonitis, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/peritonitis/symptoms-causes/syc-20376247 (last visited June 9, 2023).

10 Dr. Danoff does not describe Dr. Kallingal's involvement in Mr. Brown's medical care.

On the issue of causation, Dr. Danoff further opines,

Had Mr. Brown's condition been evaluated properly, the anastomotic leakage would have been treated effectively....The following Urologic procedures and injuries could have been prevented: Suprapubic Catheter Placement Surgery (August 2019), Suprapubic Catheter Malfunction Surgery (September 2019), Suprapubic Catheter Malfunction Surgery (November 2019), Urethroplasty Surgery (December 2019), Urosepsis post-Urethroplasty (December 2021), Urethrotomy Surgery (December 2019), Urosepsis post-Urethroplasty (December 2021), Urethrotomy Surgery (February 2021), Artificial Urinary Sphincter Surgery (June 2021), and Penile Implant Surgery (September 2021)....

I have reviewed all the medical records for the treatment Mr. Brown received at BAMC from May 9, 2019, until May 30, 2019. Based upon a reasonable degree of medical certainty, all the treatment, including the Urethroplasty operation, was proximately caused by Dr. Park's and Dr. Kallingal's breaches of the standard of medical care.

Based upon a reasonable degree of medical certainty[,] all the treatment Mr. Brown received from BAMC after May 9, 2019 [u]ntil May 30, 2019, is proximately caused by both attending Dr. Kallingal's and resident Dr. Park's breaches of the standard of medical care.

(Id.)

B. Defendants' Motion for Certification

This action falls within the purview of both the Gonzalez Act and the FTCA. The Gonzalez Act immunizes medical workers “of the armed forces” from personal liability for claims arising from the performance of medical or related health care functions. 10 U.S.C. § 1089(a). There is no dispute that Dr. Kallingal and Dr. Park are employees of the armed forces for purposes of the statute. The Fourth Circuit recently issued an opinion summarizing the procedure in which such workers may be immunized from suit.

The Gonzalez Act immunizes federal employees in the medical field . . . by allowing the United States to substitute itself as a defendant upon certification by the Attorney General that the medical employee was acting within the scope of his employment at the time of the incident out of which the suit arose. 10 U.S.C. § 1089(c).

After certification, the ball is in the plaintiff's court. If a plaintiff does not challenge the Attorney General's certification, the certification is conclusive. Gutierrez de Martinez v. Drug Enforcement Admin., 111 F.3d 1148, 1153 (4th Cir. 1997). If a plaintiff challenges the Attorney General's certification, he must prove that the defendants were not acting within the scope of their employment. [Maron v. United States, 126 F.3d 317, 323 (4th Cir. 1997)]. If the plaintiff presents persuasive evidence refuting certification, the government must provide evidence and analysis supporting its conclusion that the conduct at issue was carried out within the scope of employment. Id. If the plaintiff's evidence carries the burden of proof, the district court may allow any discovery it deems appropriate. Gutierrez de Martinez, 111 F.3d at 1155.

Doe v. Meron, 929 F.3d 153, 160-61 (4th Cir. 2019) (footnote omitted).

Similarly, the FTCA¹¹provides a limited waiver of the United States' sovereign immunity, but the waiver restricts liability to acts or omissions of agents or employees of the United States who are acting within the scope of their employment. Roberts v. United States, 2015 WL 4546038, at *3 (D.S.C. July 28, 2015); 28 U.S.C. § 1346(b)(1). When read in tandem, the Gonzalez Act provides that the remedy and waiver of sovereign immunity contained in the FTCA is the exclusive remedy for damages due to personal injury caused by a negligent act of any military healthcare provider whose challenged actions were within the scope of his or her employment. See Levin v. United States, 568 U.S. 503, 507 (2014) (explaining that the Gonzalez Act “makes claims against the United States under the FTCA the ‘exclusive' remedy for injuries resulting from malpractice committed by medical personnel of the armed forces”). Thus, even if the United States were to be substituted for the individual defendants pursuant to the Gonzalez Act, jurisdiction over the government is only proper if the suit is commenced based on a wrongful act or omission of an employee who was acting within the scope of his employment.

11 Under the FTCA, district courts have jurisdiction in a civil action against the United States if the United States is sued under circumstances where “a private person[ ] would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). As discussed below, Texas recognizes the negligence claims asserted in this action.

As noted above, the Court denied Defendants' initial request to substitute the United States in place of Defendants Kallingal and Park. Now that discovery has closed, Defendants again move “to certify Defendants Kallingal and Park and dismiss them as individual defendants.” (Dkt. No. 75 at 1.) They seek to substitute the United States in their place. In support, Defendants have provided certification by the United States Attorney for the District of South Carolina that the individual Defendants were acting within the scope of their employment at the time of the incidents alleged in the Complaint. (Dkt. No. 26-1.). Plaintiffs challenge the certification and argue that “Defendants Kallingal and Park falsified Mr. Brown's medical records to conceal their guilt.” (Dkt. No. 79 at 66.)

In resolving the question of whether an alleged tort occurred within the scope of employment, the district court may resolve disputed issues of fact. See Borneman v. United States, 213 F.3d 819, 827 (4th Cir. 2000). To assist in this inquiry, the district court, in its discretion, may allow limited discovery or conduct an evidentiary hearing on the matter of scope of employment. Martinez, 111 F.3d at 1155. However, such a hearing is unnecessary if the certification, pleadings, affidavits, and any supporting documents fail to reveal an issue of material fact. See id. In addition, at all stages of the process, the district court must “weigh the sufficiency of the evidence, to determine whether genuine issues of fact exist, and ultimately to resolve these factual issues.” Borneman, 213 F.3d at 827. Once all factual issues have been resolved, the district court must then “weigh the evidence on each side to determine whether the certification should stand.” Gutierrez, 111 F.3d at 1155.

The district court “must apply the law of the state in which the alleged tort occurred to ascertain whether the federal employee was acting within the scope of his employment.” Borneman, 213 F.3d at 827. Texas law applies to this analysis because that is where the events in the Complaint took place. Under Texas law, the conduct of an employee is committed in the course and scope of employment when the conduct “falls within the scope of the employee's general authority in furtherance of the employer's business and [is done] for the accomplishment of the object for which the employee was hired.” Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002). By contrast, “if an employee deviates from the performance of his duties for his own purposes, the employer is not responsible for what occurs during that deviation.” Id.; see also Fink v. Anderson, 477 S.W.3d 460, 467 (Tex. App. 2015) (“[C]onduct that is better viewed as a deviation from an assigned task instead of an escalation beyond what was authorized is not within the employee's scope of employment.”).

As noted above, Defendants first moved for this certification when discovery was ongoing. In a prior Order, the Court found that Plaintiffs “have adequately refuted, but not disproved, the Certification” as to Dr. Kallingal and Dr. Park based on evidence indicating that these defendants “may have fabricated certain medical records” in an effort to conceal that they “arguably improperly substituted Dr. Park as the primary surgeon.” (Dkt. No. 72 at 9-11.) The Court noted that Plaintiffs “have also established that discovery may yield additional information supporting their claim that patient records were fraudulently created.” (Id. at 13.) The Court further stated that “in any dispositive motion they may file, defendants will be able to reassert that Dr. Kallingal and Dr. Park are not proper defendants based on the totality of the discovered evidence.” (Id. at 13 n.6.) Now that discovery has closed, Defendants argue that the evidence ultimately establishes that “Dr. Kallingal and Dr. Park did not exceed the scope of their authority and did not alter the computer records.” (Dkt. No. 75 at 10.)

Here, to determine whether the substitution of the United States in place of Dr. Kallingal and Dr. Park is appropriate, the undersigned will review and weigh the contentions and evidence in the record relevant to the certification issue.¹²As an initial matter, Plaintiffs have not presented any further evidence contradicting the certification. While Plaintiff insists the note Dr. Park entered documenting a visit with Plaintiffs on May 8, 2019 was fraudulently created, there is no evidence to support this allegation. As the Court noted in its prior Order, “the note for the March 27 visit- which was written by Dr. Kallingal-is not, as plaintiffs claim, an exact duplicate of Dr. Park's note,” dated May 8, 2019. (Dkt. No. 72 at 12.) Further, Dr. Park's notes include the recording of Mr. Brown's vital signs by a clinician at 9:07 AM.¹³Plaintiffs do not contend that those vital signs were falsified, and there is no “addendum” indicating Dr. Park's notes were altered in any way. As Mr. Brown's deposition testimony implied, due to the mechanics of the computer system at BAMC, any computer entry would indicate there was an addendum if the note was altered in any way. There is no “addendum” entered in any of the records from May 8, 2019. While Plaintiffs deny meeting with Dr. Park on May 8, 2019 and deny that Mr. Brown was ever informed a resident would perform his surgery (Dkt. No. 79-27), that alone does not establish that Dr. Park and Dr. Kallingal falsified medical records.

12 The evidence in the record relevant to this issue is summarized, supra, in section A. Because this evidence is sufficient to decide whether Dr. Kallingal and Dr. Park acted within the scope of their employment, an evidentiary hearing was not held. See Lee v. United States, 171 F.Supp.2d 566, 575 (M.D. N.C. 2001) (on certification issue, “review[ing] and weigh[ing] the contentions and evidence” without holding an evidentiary hearing because the evidence in the record “is sufficient to decide whether Stokes acted within the scope of his employment”).

13 It does not appear this portion of the May 8, 2019 medical note was in the record when the Court initially considered the certification issue. (Dkt. No. 52-9.)

Also, as the Court previously noted, the record includes an exhibit showing that “Mr. Brown signed a Request for Administration of Anesthesia” on May 9, 2019, stating that the procedure “is to be performed by or under the direction of” Dr. Kallingal and “other staff and Resident team.” (Dkt. No. 52-1 at 1; 72 at 11; 75-9 at 3.) In its Order, the Court did not entertain any of Plaintiffs' unverified allegations that Mr. Brown's signature on this form was forged.¹⁴While Plaintiffs continue to argue that Mr. Brown's signature on this May 9, 2019 consent form is a forgery, they have only made this allegation in unverified pleadings. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (noting that once the moving party meets its burden, the nonmoving party must “go beyond the pleadings” and by affidavits, depositions, answers to interrogatories, or admissions on file show there is a genuine issue for trial); Goodman v. Diggs, 986 F.3d 493, 498 (4th Cir. 2021) (holding a verified complaint is considered an affidavit for summary judgment purposes and implicitly recognizing that an unverified complaint is not); McClary v. Hafeze, No. 1:19-cv-1, 2021 WL 11134243, at *1 (M.D. N.C. Apr. 22, 2021) (“The plaintiff's factual assertions in the complaint and letters treated as supplements are not under oath or otherwise subject to the penalties for perjury and do not constitute evidence.”); see generally Fed. R. Civ. P. 56.

14 Plaintiffs allege this forgery only in their unverified complaint and in their unverified briefings.

Plaintiffs have still not offered any evidence specific to this forgery issue, other than pointing to Mr. Brown's signature on other documents, which they contend “show the forged signature deviates from Mr. Brown's standard signature.” (Dkt. Nos .63 at 6; 63-2-63-5.) Notably, in his deposition, Mr. Brown expressly admitted to signing a consent form on May 9, 2019, and he testified that he “didn't read it” when he signed the form. (Dkt. No. 75-1 at 7, 10.) Mrs. Brown also testified that Mr. Brown provided an electronic signature on a consent form on the morning of his surgery. (Dkt. No. 75-2 at 10.) Defendants have submitted an affidavit from Dr. Nancy Gillcrist, who avers that she obtained Mr. Brown's electronic signature on this May 9, 2019 consent form. (Dkt. No. 75-9 at 1.) In short, there is no evidence that the signature on the May 9, 2019 consent form does not belong to Mr. Brown.

Based on the foregoing, the totality of evidence does not indicate that Dr. Kallingal and Dr. Park fabricated any medical records. Thus, the government has presented sufficient evidence to support its conclusion that Dr. Kallingal and Dr. Park acted within the scope of their employment during the events alleged in the Complaint. See Doe, 929 F.3d at 167 (“If Doe meets his burden in challenging certification, the government is then required to present evidence to support its conclusion that the torts occurred within the scope of employment.”); see Fink v. Anderson, 477 S.W.3d 460, 470 (Tex. App. 1st 2015) (explaining that Texas courts “have broadened the focus to ask whether the general conduct was within the scope of employment instead of whether the specific act was somehow wrongful”); Poland v. Willerson, 2008 WL 660334, at *7 (Tex. App. Mar. 13, 2008) (holding that doctor, who was supposedly negligent in performing surgery on patient, acted in the scope of employment because he averred that he provided medical care in course and scope of employment with governmental unit). Accordingly, the undersigned recommends Dr. Park and Dr. Kallingal be dismissed from this action, and the United States be substituted in their place.

C. Motions for Summary Judgment

In light of the foregoing, if the District Judge adopts the above recommendation, the United States is the only remaining Defendant in this action. Based on the alleged actions of Dr. Park, Dr. Kallingal, and Dr. Ernest, Plaintiffs bring claims against the United States for negligence based on medical battery and medical malpractice. Because Plaintiffs allege these negligent acts occurred in Texas, “the law of that state controls.” Iodice v. United States, 289 F.3d 270, 274 (4th Cir. 2002) (“In this federal tort claims action, arising out of events occurring in North Carolina, the law of that state controls.”).

The undersigned considers these claims in turn.

1. Negligence and Medical Battery

Plaintiffs' medical battery claim arises out of the allegation that Defendant Park performed Mr. Brown's robot-assisted laproscopic prostatectomy without his informed consent. According to Plaintiffs, Mr. Brown was led to believe that Defendant Kallingal would be performing Mr. Brown's surgery, alone. (Dkt. No. 79-27 at 1-2.) In their Motion, Defendants argue that under the applicable law, Plaintiffs' medical battery claim fails because there is no legal duty for a physician to disclose “the participants to the surgery.” (Dkt. No. 75 at 10.)

“Medical treatment will not constitute a battery unless it is provided without the patient's consent.” Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (per curiam); see also Miller v. HCA, Inc., 118 S.W.3d 758, 767 (Tex. 2003); Baribeau v. Gustafson, 107 S.W.3d 52, 61 (Tex.App.-San Antonio 2003, pet. denied) (holding that “[b]attery in the health care context generally involves claims that a doctor performed acts on the patient without consent.”). An informed consent claim is a “subspecies of negligence,” with the threshold issue being whether there is a duty. Benge v. Williams, 472 S.W.3d 684, 707 (Tex. App. 2014), aff'd, 548 S.W.3d 466 (Tex. 2018). It is well-established under Texas law that there is “no legal duty to disclose to a patient specific information about a consented-to assisting surgeon's anticipated level of participation or experience.” Benge, 472 S.W.3d at 709. Moreover, where the patient has signed a consent form consenting to a selected surgeon and other “such associates” to perform the surgery, such consent is established. See Haynes v. Beceiro, 219 S.W.3d 24, 27 (Tex.App.-San Antonio 2006, pet. denied) (medical battery case; signature on standard consent and disclosure form permitted active participation in surgery by another doctor because patient consented to her chosen doctor and other “such associates” he deemed necessary to perform surgery).

In Benge v. Williams, the Texas Court of Appeals considered a negligence claim based on the defendant surgeon's failure to disclose a resident's participation in the plaintiff's hysterectomy, wherein plaintiff suffered a perforated bowel. 472 S.W.3d at 689-90. As in the instant case, the parties disputed whether the plaintiff was told the surgeon would be assisted during the procedure. Id. at 690. Likewise, the Benge plaintiff signed a form acknowledging that a “resident” may “assist” the surgeon, including performing “important tasks” during the surgery. Id. Finding that the resident's participation was adequately disclosed on the “standard form language used in this case,” the court dismissed the negligence claim, concluding that “Texas law does not impose a legal duty to disclose to a patient specific information about a consented-to assisting surgeon's anticipated level of participation or experience.” 472 S.W.3d at 707-09.

Similarly, in Haynes v. Beceiro, the plaintiff could not prevail on a medical battery claim against an assisting surgeon who participated in her surgery, even though she explicitly informed the surgeon's staff, before her procedure, that “[s]he does not want to see anyone else-or have anyone else do surgery” besides the surgeon she selected. 219 S.W.3d at 25. The Disclosure and Consent Form she signed stated that she was “voluntarily request[ing]” her chosen surgeon “and such associates, technical assistants and other health care providers as they may deem necessary to treat my condition ” Id. The Haynes court held that consent, therefore, was given for the second surgeon to participate in her procedure and it dismissed the medical battery claim. Id.

Here, as in Benge and Haynes, the record includes a similar consent form signed by Mr. Brown on May 9, 2019, acknowledging that his surgery would be “performed by or under the direction of Dr. George Joseph Kallingal, LTC, USA, MC, other staff and Resident team.” (Dkt. No. 75-9 at 3.) As discussed above, while Plaintiffs argue that Mr. Brown's signature on this form was forged, they have only made this allegation in unverified pleadings that do not constitute evidence-the allegation of forgery has not been made under oath or otherwise subject to the penalty for perjury.¹⁵ See McClary, 2021 WL 11134243, at *1. Defendants have submitted affidavit evidence from the former BAMC official who avers she obtained Mr. Brown's electronic signature on this consent form, and Mr. Brown testified in his deposition that he signed a consent form on May 9, 2019, which he did not read. Mr. Brown's failure to read the consent form does not raise a fact issue on alleged lack of informed consent, and there is no evidence that the signature on the May 9, 2019 consent form does not belong to Mr. Brown. See Biggs v. Clyburn, 2003 WL 21197151, at *5 (Tex. App. May 22, 2003) (rejecting plaintiff's argument that his “alleged failure to read a consent form raises a fact issue on lack of informed consent”).

15 Plaintiffs' deposition testimony in the record makes no allegation of forgery on the May 9, 2019 consent form.

In short, the record shows that Mr. Brown signed a form prior to his surgery, acknowledging that his surgery would be “performed by or under the direction of Dr. George Joseph Kallingal, LTC, USA, MC, other staff and Resident team.” (Dkt. No. 75-9 at 3.) Given that this form disclosed to Mr. Brown the potential participation of “other staff and Resident team” in his surgery, no further disclosure was required as to Dr. Park's participation under Texas law. Plaintiffs' attempt to “characterize[] the failure to disclose this information as a breach of duty presents an invalid legal theory,” and the medical battery claim fails as a matter of law. Benge, 472 S.W.3d at 709.

2. Negligence and Medical Malpractice

In addition to Plaintiffs' claims for medical battery, the Amended Complaint also alleges under causes of action for “medical malpractice”¹⁶that: (1) Dr. Kallingal, Dr. Park, and Dr. Ernest provided negligent medical care and treatment to Mr. Brown both during and after his surgery, which caused his physical injuries; and (2) Dr. Ernest and Dr. Kallingal failed “to properly supervise the medical care and treatment that was being provided by Grace Park to the Plaintiff.”¹⁷(Dkt. No. 46 at 10-11.)

16 In their Motion for Summary Judgment, Defendants briefly assert that “Plaintiffs' attempt to recast their medical malpractice claim into a fraud claim should be rejected.” (Dkt. No. 75 at 12.) Plaintiffs' Amended Complaint does not expressly plead a cause of action for fraud, and Plaintiffs do not mention any such claim in their Motion for Summary Judgment. (Dkt. Nos. 46; 61.) Plaintiffs offer no compelling argument on this issue (Dkt. No. 79 at 42), and the undersigned recommends any such independent claim of fraud fails as a matter of law.

17 Here, the undersigned recognizes that the United States has been substituted for Dr. Ernest and BAMC as named defendants. (Dkt. No. 72.) Further, in this R&R, the undersigned has recommended that the United States be substituted as named defendants for Dr. Kallingal and Dr. Park.

Under Texas law, in a medical malpractice action, the plaintiff bears the burden of proving: (1) the physician's duty to act according to an applicable standard of care, (2) a breach of that standard of care, (3) injury, and (4) causation. Quijano v. United States, 325 F.3d 564, 567 (5th Cir. 2003). Where the mode of treatment is not a matter of common knowledge for laymen, expert testimony is required to show the applicable standard of care and how the care he received breached that standard. Hood v. Phillips, 554 S.W.2d 160, 165-66 (Tex. 1977); see also Anderson v. U.S., 2010 WL 3006527 (5th Cir., July 23, 2010). Specifically, the Texas courts have held that to raise a fact issue sufficient to defeat summary judgment in a medical negligence case, the plaintiff's controverting expert should “specifically identify the standard of care, establish the expert's familiarity with that standard, and explain why the treatment rendered by the defendant health care provider breached the applicable standard.” Keeton v. Carrasco, 53 S.W.3d 13, 25 (Tex.App.-San Antonio 2001, pet. denied).

Proximate cause sufficient to establish medical malpractice has two components: causation in fact and foreseeability. W. Invs. Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005). “The test for cause in fact is whether the act or omission was a substantial factor in causing the injury without which the harm would not have occurred.” Id. Evidence that shows only that the defendant's negligence furnished a condition that made the injuries possible is insufficient to show proximate cause. Id. Proximate cause cannot be established by mere conjecture, guess, or speculation. Id. In a medical malpractice case, proximate cause must be established through expert testimony. Mariner Health Care of Nashville, Inc. v. Robins, 321 S.W.3d 193, 205 (Tex.App.-Houston [1st Dist.] 2010, no pet.).

In their Motion, Defendants argue that Plaintiffs' submitted expert report, written by Dr. Danoff, offers evidence specific only to Dr. Park. (Dkt. No. 75 at 14-18.) According to Defendants, Dr. Danoff offers only conclusory statements about what Dr. Park did or did not do that deviated from [her] undefined standard of care” and he fails to establish the causal relationship between the alleged breach and Plaintiff's injuries. (Dkt. No. 62 at 6-8.)

In his expert report, Dr. Danoff opines that Dr. Park should have “use[d] a medically accepted technique” and “properly execut[ed]” that technique during Mr. Brown's robotic-assisted laparoscopic prostatectomy (“RALP”). (Dkt. No. 61-3 at 3.) He concludes that “Dr. Park breached the standard of medical care by failing to properly execute a medically accepted technique to properly identify Mr. Brown's anatomy prior to clipping and cutting structure to remove his prostate gland and attached seminal vesicles.” (Id.) Because Dr. Danoff never explains what constitutes “a medically accepted technique,” Plaintiff cannot establish a breach of the standard of care based on these statements. See Garnett v. Ghafoori, 2008 WL 525456, at *6 (Tex. App. Feb. 28, 2008) (The applicable standard [of care] must be established so the fact finder can decide if the defendant deviated from it.”) (citing Jones v. Miller, 966 S.W.2d 851, 854 (Tex. App.-Houston [1st Dist.] 1998, no pet.)).

However, Dr. Danoff also references Mr. Brown's anastomotic leak and the need for a “timely diagnose[s] and treat[ment]” by Dr. Park. In his “summary of the records,” Dr. Danoff notes that

Following his operation, Mr. Brown's clinical condition rapidly deteriorated. He underwent numerous radiological studies between May 13-30, including, a CT Abdomen/Pelvis with Contrast (May 14, 20, & 28 2019) and CT Needle Guidance (May 21, 2019). The results of these tests, in addition to the patient's lab work overwhelming confirmed an anastomosis leakage. A Jackson-Pratt (JP) is used to drain fluid after surgery. A JP Drain was not utilized until May 22, 2019, 13 days post-prostatectomy and Mr. Brown being readmitted twice due to severe surgical complications, including collection of extravasated urine....

(Dkt. No. 61-3 at 2.) When the above summary is considered with the expert report submitted by Defendants, the record indicates that after Mr. Brown was discharged home on May 11, 2019, he returned to the BAMC hospital on May 14, 2019, “complaining of abdominal pain, nausea and vomiting.” (Dkt. No. 75-11 at 3.) While there, a CT scan was performed, “blood work was also done,” and Mr. Brown was discharged the next day without diagnosis or treatment for an anastomosis leakage. (Id.) Mr. Brown returned to the emergency room on May 20, 2019, and, after a repeat CT scan, “a single drain was placed” to treat the “bilateral pelvic fluid collection” that was detected. (Id.) Mr. Brown was discharged on May 22, 2019. (Id.)

Following his “summary of records,” Dr. Danoff opines that

Dr. Park failed to diagnose the urethrovesical anastomotic leak in a timely manner, specifically when it was clinically significant and when intervention was required. Moreover, the standard for medical care required Dr. Park to timely diagnose Mr. Brown's bladder injury and transfer him to a higher level of care. Dr. Park breached the standard of care by failing to timely diagnose and treat the anastomotic leak injury, sepsis, and bladder injury, and transfer him to a high level of care.

(Id. at 4.) On the issue of causation, Dr. Danoff further opines,

Had Mr. Brown's condition been evaluated properly, the anastomotic leakage would have been treated effectively....The following Urologic procedures and injuries could have been prevented: Suprapubic Catheter Placement Surgery (August 2019), Suprapubic Catheter Malfunction Surgery (September 2019), Suprapubic Catheter Malfunction Surgery (November 2019), Urethroplasty Surgery (December 2019), Urosepsis post-Urethroplasty (December 2021), Urethrotomy Surgery (December 2019), Urosepsis post-Urethroplasty (December 2021), Urethrotomy Surgery (February 2021), Artificial Urinary Sphincter Surgery (June 2021), and Penile Implant Surgery (September 2021)....

I have reviewed all the medical records for the treatment Mr. Brown received at BAMC from May 9, 2019, until May 30, 2019. Based upon a reasonable degree of medical certainty, all the treatment, including the Urethroplasty operation, was proximately caused by Dr. Park's and Dr. Kallingal's breaches of the standard of medical care.

Based upon a reasonable degree of medical certainty[,] all the treatment Mr. Brown received from BAMC after May 9, 2019 [u]ntil May 30, 2019, is proximately caused by both attending Dr. Kallingal's and resident Dr. Park's breaches of the standard of medical care.

(Id.)

Based on the foregoing, the undersigned finds that Dr. Danoff has “specifically identif[ied] the standard of care” based on his opinion that Mr. Brown's anastomosis leak should have been diagnosed and treated based on the results of the blood work and CT scan from Mr. Brown's May 14, 2019 emergency room visit. Keeton, 53 S.W.3d at 25. Dr. Danoff has further “explain[ed] why the treatment rendered by [Dr. Park] breached the applicable standard” based on his opinion that Dr. Park failed to timely diagnose and treat Mr. Brown's anastomotic leak “when it was clinically significant.” Id. Here, the undersigned recognizes that Defendants' expert, Dr. Canter, has opined that the May 14, 2019 CT scan “did not have any significant findings,” and the fluid collection was only detected on the “repeat CT scan” conducted during Mr. Brown's second emergency room visit. (Dkt. No. 75-11 at 3.) Because it is for the jury to decide “which expert witness to credit,” Dr. Canter's opinion does not preclude finding an issue of fact on the standard of care issue. Morrell v. Finke, 184 S.W.3d 257, 282 (Tex. App. 2005) (“In a battle of competing experts, it is the sole obligation of the jury to determine the credibility of the witnesses and to weigh their testimony....The jury decides which expert witness to credit.”).

As for the causation element, Dr. Danoff states that “[a]n anastomotic leakage leads to significantly more severe postoperative complications, higher rate of reoperations, and higher mortality.” (Dkt. No. 61-3 at 3.) He states that “[h]ad Mr. Brown's condition been evaluated properly, the anastomotic leakage would have been treated effectively.” (Id. at 1.) Listing a series of surgeries Mr. Brown underwent between August 2019 and September 2021, Dr. Danoff opines that Mr. Brown's “Urologic procedures and injuries” could have been prevented. (Id.) He further opines that “Based upon a reasonable degree of medical certainty, all the treatment, including the Urethroplasty operation, was proximately caused by Dr. Park's . . . breach[] of the standard of medical care.” (Id. at 4.)

In sum, through Dr. Danoff's expert report, Plaintiffs have specifically identified the standard of care for a patient in Mr. Brown's situation, established his familiarity with that standard,¹⁸and explained why Dr. Park's treatment of Mr. Brown breached the applicable standard. Thus, Plaintiffs have raised a material fact issue on the standard of care provided by Dr. Park. Further, based on Dr. Danoff's expert opinion, Plaintiffs have also raised a fact issue as to whether Dr. Park's alleged failure to timely diagnose and treat Mr. Brown's anastomotic leakage proximately caused his injuries.¹⁹Accordingly, the undersigned recommends Plaintiffs' medical malpractice claim arising from Dr. Park's conduct should survive summary judgment.²⁰ See, e.g., Tejada v. Gernale, 363 S.W.3d 699, 709 (Tex. App. 2011) (finding plaintiff's expert opinion raised fact issue as to whether physician's negligence in failing to diagnose plaintiff's diabetes caused plaintiff's injuries); Cooke v. United States, 2008 WL 3876035, at *9 (N.D. Tex. Aug. 18, 2008) (finding plaintiffs' experts raised fact issue as to whether physician's failure to, inter alia, timely “recognize and treat” hypertension caused plaintiff's subsequent stroke).

18 Defendants do not dispute this factor on the standard of care issue, and the undersigned finds that Dr. Danoff has sufficiently established his familiarity with the proper standard of care for treating patients in Mr. Brown's condition.

19 Here, the undersigned recognizes that Defendants' expert, Dr. Canter, opines that erectile dysfunction and urinary incontinence “are well-recognized side effects” of Mr. Brown's procedure and would likely have developed regardless of any post-operative issues. (Dkt. No. 75-11.) Because Dr. Danoff opines that Dr. Park's conduct proximately caused Mr. Brown's other injuries including the urethroplasty operation (Dkt. No. 61-2 at 1, 4), Dr. Danoff's failure to address other plausible causes of Mr. Brown's incontinence and impotence does not preclude denying summary judgment here. Cf. Kyle v. Hillery, 2018 WL 1003807, at *2 (Tex. App. Feb. 22, 2018) (in medical malpractice claims, “[w]hen the evidence demonstrates that ‘there are other plausible causes of the injury or condition that could be negated, the plaintiff must offer evidence excluding those causes with reasonable certainty'” (quoting Bustamante v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017)).

20 Because the undersigned has recommended the United States be substituted in place of Dr. Park, it would be liable for her conduct pursuant to a theory of respondeat superior. See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995) (noting that upon certification, when the United States is substituted as the defendant in place of the employee, “such cases unfold much as cases do against other employers who concede respondeat superior liability).

However, Plaintiff has only presented evidence sufficient to raise factual issues as to Dr. Park's negligence. Dr. Danoff does not mention Dr. Ernest in his report and he only states in a conclusory manner that Dr. Kallingal “breached the standard of medical care.” (Dkt. No. 61-3 at 4.) There is no evidence elsewhere in the record that supports any negligence claims against Dr. Kallingal and Dr. Ernest. Thus, any medical malpractice claims arising from the conduct of Dr. Kallingal and Dr. Ernest fail as a matter of law. See, e.g., Garnett, 2008 WL 525456, at *6 (granting summary judgment on medical malpractice claim where because plaintiff “did not raise a material fact issue as to the essential elements of her medical malpractice claim”); See Walker v. Corley, 2003 WL 22025853, at *3 (Tex. App. Aug. 29, 2003) (“To raise a fact issue sufficient to defeat summary judgment, the plaintiff's controverting expert should specifically identify the standard of care, establish the expert's familiarity with that standard, and explain why the treatment rendered by the defendant health-care provider breached the applicable standard.”).

3. Claims Specific to Mrs. Brown

Finally, in their Motion for Summary Judgment, Defendants assert that Plaintiffs have failed to adequately plead any claims specific to Mrs. Brown. (Dkt. No. 75 at 18-19.) Here, they cite Mrs. Brown's deposition testimony as an indication that Plaintiffs believe they have alleged a claim for loss of consortium. (Dkt. Nos. 75 at 19; 75-2 at 7-8.) Specifically, in her deposition, Mrs. Brown admitted that while Plaintiffs did not expressly plead a claim for loss of consortium in the Amended Complaint, she believed the request for “lost earnings” in the Amended Complaint sufficiently encompasses a request for “loss of consortium.” (Dkt. Nos. 46 at 12; 75-2 at 7-8.)

To the extent Plaintiffs seek relief for loss of consortium, this is treated as an element of damage under Texas law rather than a cause of action. Rodriguez v. Blaine Larsen Farms, Inc., 2022 WL 18034478, at *1 (N.D. Tex. Apr. 21, 2022) (“Texas law does not recognize a loss-of-consortium cause of action.”) (citing Whittlesey v. Miller, 572 S.W.2d 665, 666 n.1 (Tex. 1978) (the “phrase ‘loss of consortium' is more accurately described as an element of damage”); In re Air Crash at Dall./Fort Worth Airport, 856 F.2d 28, 29 (5th Cir. 1988) (stating “no such cause of action exist[s]”).

Here, the Amended Complaint asserts that Defendants should compensate Plaintiffs for “(1) actual damages; (2) consequential damages; (3) economic damages (medical bills), (4) lost earnings, lost ability to earn an income, (5) noneconomic damages (pain and suffering), (6) punitive damages, and (7) such other and further relief as the Court and jury deem just and appropriate.” (Dkt. No. 46 at 12.) Further, Plaintiffs have presented evidence “showing the nature and extent of [Mr. Brown's] injuries,” and “[a] jury can infer loss of consortium damages” from such evidence. Puga v. RCX Sols., Inc., 922 F.3d 285, 296 (5th Cir. 2019) (quoting Glasscock v. Armstrong Cork Co., 946 F.2d 1085, 1090 (5th Cir. 1991)). Based on the foregoing, the undersigned finds Mrs. Brown can seek loss of consortium in this action. Defendants' argument here is without merit.

CONCLUSION

Based on the foregoing, the undersigned RECOMMENDS that Plaintiffs' Motion for Summary Judgment (Dkt. No. 61) be DENIED, Defendants' Motion for Certification (Dkt. No. 75) be GRANTED, and Defendants Motion for Summary Judgment (Dkt. No. 75) be GRANTED IN PART AND DENIED IN PART. Specifically, the undersigned recommends Dr. Park and Dr. Kallingal be dismissed from this action, and the United States be substituted in their place. Additionally, Plaintiffs' medical malpractice claim arising out of Dr. Park's conduct should proceed. All other causes of action should be dismissed. Finally, the undersigned recommends Mrs. Brown can seek loss of consortium as an element of damage in this action.

IT IS SO RECOMMENDED.

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4^th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk

United States District Court

Post Office Box 835

Charleston, South Carolina 29402

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).