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Fall 2011
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The Defense Line: Fall 2011

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The Defense Line: A Publication From The Maryland Defense Counsel, Inc.


justiceGDLD Secures Summary Judgment Win in Employment Case Involving Hospital Resident

On February 25, 2011, GDLD attorneys Craig B. Merkle and K. Nichole Nesbitt convinced the Honorable Evelyn O. Cannon to enter summary judgment in favor of their clients, St. Agnes HealthCare, Inc. and Norman Dy, M.D., in an employment case pending in the Circuit Court for Baltimore City, Case No. 24-C-09-006852 OT.

The case was brought by a first year internal medicine resident, Payam Pojhan, M.D., who was placed on remediation and probation and ultimately encouraged to withdraw from the program after his supervisors expressed concerns about his medical knowledge, his professional attitude, and his ability to care for patients safely. Dr. Pojhan argued that the employment actions against him were motivated by hostility on the part of Dr. Dy, the residency program director, whom Dr. Pojhan contends discriminated against him on the basis of his Iranian nationality and retaliated against him for complaining about his working conditions. Dr. Pojhan also contended that Dr. Dy defamed him by sharing information about Dr. Pojhan’s performance with other hospital residency programs. He brought a ten-count complaint alleging a number of tort, contract, and civil rights claims.

Ruling from the bench, Judge Cannon agreed with the defense’s position that the hospital and Dr. Dy were immune from liability for the contract and tort claims by virtue of the Health Care Quality Improvement Act, 42 U.S.C. § 11111 (“HCQIA”). She noted that the undisputed facts established that Dr. Pojhan was afforded fair procedures for challenging the employment actions taken and that the decision to terminate him from the program was objectively reasonable in light of the documented concerns about his ability to care for patients. Therefore, Dr. Pojhan’s non-civil rights counts could not survive summary judgment.

Judge Cannon went further by holding that even in the absence of HCQIA immunity, Dr. Pojhan failed to establish the facts necessary to support his tort claims.

With regard to Dr. Pojhan’s discrimination and retaliation claims, which are not subject to immunity under the HCQIA statute, Judge Cannon agreed with the defense that Dr. Pojhan had not exhausted his administrative remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission or the Maryland Human Relations Commision. Dr. Pojhan argued that his failure to file a charge of discrimination was due to threats of retaliation by Dr. Dy, and that the defendants should therefore be estopped from citing failure to exhaust administrative remedies as a defense. Judge Cannon disagreed, noting that any alleged retaliation may support his retaliation claim, but does not excuse his failure to comply with mandatory administrative requirements. Judge Cannon went on to find that Dr. Pojhan could not prevail on the merits of his discrimination and retaliation claims, because the undisputed evidence demonstrated the hospital’s legitimate, nondiscriminatory basis for the employment actions taken.

Summary judgment was entered in favor of the defendants on all counts.

GDLD Attorneys Successfully Defend Obstetrical Malpractice Claim by Brain-Damaged Infant

Craig Merkle and Kelly Hughes Iverson obtained a defense verdict on January 21, 2011 for three obstetricians, two physician assistants, and their obstetrical practice group following a nearly three-week trial in the Circuit Court for Montgomery County, Maryland. In Eskandary v. RHJN, et al., the two-year-old plaintiff's mother suffered a cardiac arrest and died while 40 weeks pregnant. The baby, who was delivered by emergency traumatic cesarean section, was severely brain damaged and now requires, among other things, tracheostomy, tube feeding, and 24-hour nursing care. The plaintiff alleged that in the course of her prenatal care, his mother's obstetricians allegedly failed to refer her for cardiac work-up to identify a congenital heart malformation, which was first identified on autopsy, that led to sudden arrthymia and cardiac arrest. The plaintiff asserted that diagnosis of the condition should have led to early delivery of the baby before the mother's arrest. The plaintiff claimed damages approaching $20 million and elicited the testimony of several treating physicians and providers to attest to the child's global brain injury and profound disabilities. Mr. Merkle and Ms. Iverson presented the testimony of all of the obstetric providers, as well as expert testimony in the fields of maternal-fetal medicine and cardiology, among others. The jury returned a verdict in favor of all six defendants. Mr. Merkle and Ms. Iverson had previously obtained a summary judgment in favor of a fourth obstetrician in the case.

Bonner Kiernan Obtains Defense Verdict in the Circuit Court for Baltimore City, Maryland — Alleged Medical Malpractice/Wrongful Death

A 53 year old man, Arthur Johnson, developed deep vein thrombosis (DVT) after completing a course of anticoagulant therapy prescribed by a doctor at Johns Hopkins. One of his primary care physicians subsequently placed the patient on a blood thinner to treat the DVT, but Mr. Johnson still went on to suffer from a pulmonary embolism (PE) and died. The decedent’s family (including a wife and two adult children) filed a lawsuit against certain physicians involved in his treatment, alleging that Mr. Johnson’s pulmonary embolism was a result of the premature discontinuation of anticoagulant therapy and/or improper treatment of the DVT.

Two of the Plaintiff’s doctors, represented by E. Phillip Franke and Ace McBride of Baxter Baker Sidle Conn & Jones, were both voluntarily dismissed by the plaintiffs in the middle of the trial. Plaintiffs elected to continue their case against only the doctor from Johns Hopkins, represented by Carolyn Israel Stein and Jason Engel of Bonner Kiernan Trebach & Crociata. After a three week trial, the jury returned a defense verdict in favor of the doctor at Johns Hopkins after 45 minutes of deliberation.

Plaintiffs had sought $1,200,000 in economic damages, plus non-economic damages for the decedent’s alleged pain and suffering and the family member’s suffering due to the loss of their decedent.

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