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E-Alert Case Updates

Doctor Admits Breach of Standard of Care, But Motion for Summary Judgment Still Denied

Buss v. Nilar
Civ. No. JKB-10-2807 (D. Md.) (April 3, 2012)

by Kevin M. Cox, Associate
Semmes, Bowen & Semmes (

Gail Buss (“Ms. Buss”) and her husband, Joseph Buss, (“Plaintiffs”), sued Nilar U., M.D., (“Dr. U”), Dr. U’s employer, Carroll Primary Care (“CPC”), and Wal-Mart Stores for injuries allegedly caused by Ms. Buss taking a dose of medication prescribed by Dr. U, and supplied by Wal-Mart’s pharmacy. Ms. Buss claimed that she had an allergic reaction to Macrodantin, and that Dr. U should not have prescribed the medication for her because CPC’s records included information on an allergic reaction she had some years prior to another medication in the same “family as Macrodantin.” She further claimed to have continued difficulty breathing because of the allergic reaction. Before the United States District Court for the District of Maryland was Plaintiffs’ Motion for Summary Judgment on the issue of liability of Dr. U.

Plaintiffs asserted that they were entitled to summary judgment on the issue of liability as against Dr. U because Dr. U had not contested that she breached the standard of care in prescribing Macrodantin to Ms. Buss. Although a proof of a breach of standard of care is a necessary component of a medical negligence case, it alone does not establish liability. The classic elements of negligence are duty, breach, causation, and damage. In a medical negligence case, these are expressed as a duty of care owed by the provider to the patient, breach of the standard of care, proximate causation, and damage.

Liability on the part of Dr. U could only be established if Plaintiffs could prove that no genuine dispute of material fact existed that Dr. U’s breach of the standard of care was the proximate cause of Plaintiff’s alleged permanent injury. In support of their claim that Dr. U’s breach of the standard of care was the proximate cause of Ms. Buss allegedly permanent injury, Plaintiffs relied upon their expert contest causation opinion. Most notably, however, Defendants presented their own expert opinion to the contrary. The Court found that it was clearly faced with a genuine dispute of material fact that could not properly be resolved on a Motion for Summary Judgment. Therefore, Plaintiffs’ Motion for Summary Judgment was denied.