The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JEFFREY W. ORR, Sr., : Civil No. 1:18-CV-00422
:
Plaintiff, :
:
v. :
:
MARK JUDSON COLLIN, M.D., et al., :
:
Defendants and :
Third-Party Plaintiffs, :
:
v. :
:
VIRTUAL RADIOLOGIC :
PROFESSIONALS, LLC and :
ALISON MARIE ROBINETTE, M.D., :
:
Third-Party Defendants. : Judge Jennifer P. Wilson
MEMORANDUM
This is a professional negligence case in which Plaintiff Jeffrey W. Orr
(“Orr”) alleges that two emergency room doctors, Mark Judson Collin (“Collin”)
and Nicholaos G. Kalathas (“Kalathas”), were negligent in providing medical care
to him, which eventually resulted in the amputation of his right leg. Orr brings
claims in the case against Collin, Kalathas, and several supervisory defendants who
are allegedly vicariously liable for Collin and Kalathas’s negligence. Defendants
deny liability and bring third-party claims for contribution against Alison Marie
Robinette, M.D. (“Robinette”) and Virtual Radiologic Professionals, LLC
(collectively referred to as “Third-Party Defendants”), alleging that Robinette’s
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negligence caused Orr’s injury and that Virtual Radiologic Professionals is
vicariously liable for Robinette’s negligence. The case is presently before the
court on a motion for summary judgment filed by Third-Party Defendants. For the
reasons that follow, the motion is denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY1
In September 2014, a vascular surgeon diagnosed Orr as having an
aneurysm in an arterial blood vessel of his right leg. (Doc. 25 ¶ 15.) The surgeon
performed a femoral-popliteal arterial graft on Orr later that month to restore
adequate and proper blood flow in the leg. (Id.) Orr continued to see the surgeon
for follow-up visits for approximately two years after the surgery, during which
blood flow studies continued to show that Orr had good perfusion in the leg and
that the surgery had been successful. (Id.)
1 The court notes that Third-Party Defendants have not filed a statement of material facts in
connection with their motion for summary judgment as required by Local Rule 56.1.
Nevertheless, the court will proceed with consideration of the motion despite the violation of the
local rules because the parties’ pleadings provide a sufficient factual basis to rule on the Third-
Party Defendants’ motion. Additionally, because many of the facts necessary to understand the
Third-Party Plaintiffs’ claims against Third-Party Defendants were only pleaded in connection
with Orr’s original claims, this section contains facts that are derived from Orr’s complaint, see
Doc. 25, several of which are in dispute between the parties. These disputed facts are provided
only as background information to understand the case. Any facts that are relevant to the Third-
Party Defendants’ motion for summary judgment shall be construed in the light most favorable
to Third-Party Plaintiffs as the non-moving party. See, e.g., Jutrowski v. Twp. of Riverdale, 904
F.3d 280, 288 (3d Cir. 2018).
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On March 13, 2017, Orr visited the Meritus Urgent Care facility in
Hagerstown, Maryland, with complaints of right foot pain. (Id. ¶ 16.) Personnel at
the urgent care facility advised Orr to seek emergency medical care, and he
accordingly went to the emergency room at Chambersburg Hospital in
Chambersburg, Pennsylvania later that day. (Id. ¶¶ 16–17.)
While in the emergency room, Orr received medical care from Defendants
Collin and Kalathas. (Id. ¶ 17.) Collin and Kalathas obtained ultrasound studies of
Orr’s lower right leg arteries and veins in order to assess the blood flow in his right
leg. (Id. ¶ 18.) The ultrasound studies were interpreted by Robinette, a radiologist
who was working remotely from Arizona. (Doc. 67-2 ¶¶ 5, 7; Doc. 75 ¶¶ 5, 7.)
Robinette authored a report on the ultrasound studies, in which she offered the
following findings and impressions:
Right common femoral artery: No acute findings. No occlusion or
significant stenosis. Normal waveform. Right superficial femoral
artery: No acute findings. No occlusion or significant stenosis. Normal
waveform. Right popliteal artery: Right popliteal artery aneurysm,
measuring 2.1 x 2.3 cm. Popliteal artery is occluded. Right calf /foot
arteries: Monophasic dampened waveform in the proximal posterior
tibial artery. Elevated velocity in the mid PTA, measuring 107 cm /s.
Monophasic dampened waveform in the distal PTA. Occlusion of the
right peroneal artery. Monophasic waveform in the right anterior tibial
artery. Monophasic waveform in the right dorsalis pedis artery. Soft
tissues: Unremarkable. Impression: (1) right popliteal artery aneurism
[sic] and occlusion. (2) Occlusion of the right peroneal artery. (3) high-
grade narrowing of the mid right PTA.
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(Doc. 67-2 ¶ 25; Doc. 75 ¶ 25.) Robinette’s report did not reference Orr’s previous
bypass graft, it did not mention that there was an interval change in flow between
the ultrasound studies and a prior comparison study done in November 2016, and it
did not communicate any critical results to Collin and Kalathas. (Doc. 67-2 ¶ 26;
Doc. 75 ¶ 26.) Collin and Kalathas did not obtain any consultation from a vascular
surgeon with regard to Orr’s care, nor did they admit Orr to the hospital for further
care. (Doc. 25 ¶ 19.) Later on March 13, 2017, Collin and Kalathas discharged
Orr from the emergency room with an antibiotic prescription and instructions to
return to the hospital if his condition worsened. (Id. ¶¶ 19, 22.)
On March 19, 2017, the condition of Orr’s leg got suddenly worse, making
him unable to walk and unable to put weight on the leg. (Id. ¶ 22.) Orr
accordingly returned to the Chambersburg Hospital emergency room that day.
(Id.) Personnel from the hospital consulted with a vascular surgeon, after which it
was concluded that Orr had suffered a prolonged period of time without adequate
arterial blood flow and without proper oxygenation of the tissues in his right leg.
(Id.) As a result, doctors were required to perform an emergency amputation of the
leg below the knee. (Id.) Following the amputation, Orr was discharged to a
rehabilitation facility, where he remained for more than a month. (Id.)
Orr initiated this case through the filing of a complaint on February 20,
2018, Doc. 1, and then filed an amended complaint on June 4, 2018, naming as
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defendants Collin, Kalathas, Chambersburg Hospital, Inc., Summit Health, Inc.,
Summit Physician Services, Cumberland Valley Emergency Medical Associates,
Ltd., and Wellspan York Hospital (collectively referred to as “Defendants”). (Doc.
25.) Collin and Kalathas answered the complaint on June 25, 2018, Chambersburg
Hospital, Summit Health, and Summit Physician Services answered the complaint
on June 29, 2018, and Cumberland Valley Emergency Medical Associates and
Wellspan York Hospital answered the complaint on August 10, 2018. (Docs. 27–
28, 37.)
On February 11, 2019, Defendants Collin, Kalathas, Cumberland Valley
Emergency Medical Associates, and Wellspan York Hospital (collectively referred
to as “Third-Party Plaintiffs”) filed a motion for leave to file a third-party
complaint against Robinette and Virtual Radiologic Professionals. (Doc. 46.)
United States District Judge Yvette Kane granted the motion on February 27, 2019,
see Doc. 48, and Third-Party Plaintiffs filed their complaint against Third-Party
Defendants the next day. (Doc. 49.) Virtual Radiologic Professionals answered
the third-party complaint on April 18, 2019, and Robinette moved to dismiss the
third-party complaint on April 24, 2019. (Docs. 65–66.) Judge Kane then granted
the Third-Party Plaintiffs’ motion for leave to file an amended third-party
complaint on October 9, 2019, see Doc. 72, and the amended third-party complaint
accordingly became the operative pleading against Third-Party Defendants. (See
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Doc. 67-2.) Third-Party Defendants answered the amended complaint on
November 12, 2019. (Doc. 75.) The case was reassigned to the undersigned
pursuant to a verbal order on November 19, 2019.
Third-Party Defendants filed the instant motion for summary judgment on
August 14, 2020, along with a supporting brief. (Docs. 86–87.) Third-Party
Plaintiffs filed a brief opposing the motion for summary judgment on September 2,
2020, and filed a motion for leave to file a supplemental expert report on the same
day. (Docs. 92–93.) Third-Party Defendants filed a reply brief in support of the
motion for summary judgment on September 14, 2020. (Doc. 95.) Third-Party
Plaintiffs then filed a motion to have their motion for leave to file a supplemental
expert report deemed unopposed on September 17, 2020, see Doc. 96, after which
Third-Party Defendants filed a brief in opposition to the motion for leave to file a
supplemental expert report. (Doc. 99.) The motion for summary judgment, the
motion for leave to file a supplemental expert report, and the motion to have that
motion deemed unopposed are all ripe for the court’s disposition.
JURISDICTION
This court has jurisdiction under 28 U.S.C. § 1332, which allows a district
court to exercise subject matter jurisdiction where the parties are citizens of
different states and the amount in controversy exceeds $75,000.
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STANDARD OF REVIEW
A court may grant a motion for summary judgment when “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is material if resolution of
the dispute “might affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is
not precluded by “[f]actual disputes that are irrelevant or unnecessary.” Id. “‘A
dispute is genuine if a reasonable trier-of-fact could find in favor of the
nonmovant’ and ‘material if it could affect the outcome of the case.’” Thomas v.
Tice, 943 F.3d 145, 149 (3d Cir. 2019) (quoting Lichtenstein v. Univ. of Pittsburgh
Med. Ctr., 691 F.3d 294, 300 (3d Cir. 2012)).
In reviewing a motion for summary judgment, the court must view the facts
in the light most favorable to the non-moving party and draw all reasonable
inferences in that party’s favor. Jutrowski, 904 F.3d at 288 (citing Scheidemantle
v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir.
2006)). The court may not “weigh the evidence” or “determine the truth of the
matter.” Anderson, 477 U.S. at 249. Instead, the court’s role in reviewing the facts
of the case is “to determine whether there is a genuine issue for trial.” Id.
The party moving for summary judgment “bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those
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portions of ‘the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). The non-moving party must then
oppose the motion, and in doing so “‘may not rest upon the mere allegations or
denials of [its] pleadings’ but instead, ‘must set forth specific facts showing that
there is a genuine issue for trial. Bare assertions, conclusory allegations, or
suspicions will not suffice.’” Jutrowski, 904 F.3d at 288–89 (quoting D.E. v. Cent.
Dauphin Sch. Dist., 765 F.3d 260, 268–69 (3d Cir. 2014)).
Summary judgment is appropriate where the non-moving party “fails to
make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322. “The mere existence of a scintilla of evidence in support
of the plaintiff’s position will be insufficient; there must be evidence on which the
jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. “Where
the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
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BACKGROUND ON THE MOTION FOR SUMMARY JUDGMENT
In their motion for summary judgment, Third-Party Defendants argue that
they are entitled to summary judgment because Third-Party Plaintiffs have failed to
produce any expert report or expert testimony establishing a causal link between
Robinette’s actions and Orr’s injuries. (Doc. 87 at 10.) Third-Party Plaintiffs
disagree, arguing that there is sufficient evidence in the record to establish
causation because there is evidence that Collin and Kalathas relied on Robinette’s
report when they discharged Orr from the emergency room. (Doc. 92 at 20–21.)
Third-Party Plaintiffs note that their emergency medicine expert, Dr. Daniel
Wehner (“Wehner”), testified that it was reasonable for Collin and Kalathas to rely
on Robinette’s report in making the discharge decision. (Id. at 21–22.) Third-
Party Plaintiffs also argue that if additional expert testimony is needed they should
be allowed to produce a supplemental expert report from Wehner that would reach
a more explicit conclusion regarding causation. (Id. at 23.) This argument forms
the basis for Third-Party Plaintiffs’ related motion for leave to file a supplemental
expert report. (See Doc. 93.) Third-Party Defendants reiterate in their reply brief
their argument that Third-Party Plaintiffs have not sufficiently established
causation to survive the motion for summary judgment. (Doc. 95.)
Because the motion for summary judgment is based on a contention that
Third-Party Plaintiffs’ expert witnesses cannot establish causation, a brief review
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of the Third-Party Plaintiffs’ expert reports is necessary. The first report comes
from Dr. Muneeb Ahmed (“Ahmed”), a board-certified radiologist. (Doc. 92-6.)
Ahmed opines that Robinette “did not adequately evaluate the right femoral-
popliteal artery saphenous vein bypass graft.” (Id. at 3.) Ahmed further opines
that the “monophasic waveforms described in the ultrasound report, which
represent diminished arterial inflow from the bypass graft to the lower extremity,
should have been concerning for occlusion of the known right femoral popliteal
bypass graft” and should have “triggered a request for additional images from the
ultrasound technologist.” (Id.) “In sum,” Ahmed opines, “Dr. Robinette
specifically should have reported that the diagnostic ultrasound study that she
interpreted did not adequately image the right lower extremity bypass graft.” (Id.)
Ahmed opines that Robinette “did not comply with the standard of care required of
a practicing diagnostic radiologist” because she did not correctly identify that
reduced blood flow to the calf could have resulted from proximal graft occlusion,
she did not request additional images of the graft, and she did not tell Collin and
Kalathas that the bypass graft anatomy was not adequately assessed. (Id. at 4.)
Third-Party Plaintiffs’ second expert report comes from Wehner, who is
board certified in emergency medicine. (Doc. 92-7.) As relevant to the current
motion for summary judgment, Wehner opines that Collin and Kalathas reasonably
relied on Robinette’s findings in reaching their own radiologic decisions. (Id. at
10
3.) Wehner states that it was reasonable for Collin and Kalathas “to assume that
assessment of blood flow to the calf and foot would include imaging of the graft,
and that, if it did not, [Robinette] would have alerted them of the same.” (Id.)
DISCUSSION
A. Third-Party Defendants’ Motion for Summary Judgment Is Denied
To establish medical malpractice under Pennsylvania law, a plaintiff must
establish “(1) a duty owed by the physician to the patient; (2) a breach of that duty;
(3) that the breach of duty was the proximate cause of the harm suffered by the
patient; and (4) that the damages suffered were a direct result of that harm.”
Mitchell v. Shikora, 209 A.3d 307, 314 (Pa. 2019) (citing Hightower-Warren v.
Silk, 698 A.2d 52, 54 (Pa. 1997)). To establish a breach of the physician’s duty,
the plaintiff must establish “that the defendant’s treatment fell below the
appropriate standard of care—that is, varied from accepted medical practice.” Id.
at 314–15 (citing Scampone v. Highland Park Care Ctr., 57 A.3d 582, 596 (2012)).
A plaintiff in a medical malpractice action must present an expert witness
who will testify to a reasonable degree of medical certainty that (1) the defendant
owed a duty of care to the plaintiff; (2) the defendant breached that duty of care;
and (3) the defendant’s breach caused the plaintiff’s injuries. Id. (citing
Hightower-Warren, 698 A.2d at 54). In reviewing whether an expert can satisfy
this standard, a court looks to the substance of the expert’s report, and the expert is
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not required to use “magic words” for the plaintiff to establish duty, breach, or
causation. Welsh v. Bulger, 698 A.2d 581, 586 (Pa. 1997) (quoting Mitzelfelt v.
Kamrin, 584 A.2d 888, 894 (Pa. 1990)). To establish causation, “a medical
opinion need only demonstrate, with a reasonable degree of medical certainty, that
a defendant’s conduct increased the risk of the harm actually sustained, and the
jury then must decide whether that conduct was a substantial factor in bringing
about the harm.” Rolon v. Davies, 232 A.3d 773, 777 (Pa. Super. Ct. 2020)
(quoting Vicari v. Spiegel, 936 A.2d 503, 510 (Pa. Super. Ct. 2007)).
There is no dispute in this case that Third-Party Plaintiffs have produced
sufficient expert testimony to establish that Robinette owed a duty of care and
breached that duty. Ahmed’s report clearly concludes that Robinette’s actions fell
below the standard of care. (See Doc. 92-6 at 4.) As for causation, although
neither Ahmed nor Wehner explicitly opine that Robinette’s actions caused Orr’s
injuries, the substance of Wehner’s report could support such a conclusion.
Testimony from Collin and Kalathas could establish that they relied on Robinette’s
findings while treating and subsequently discharging Orr, and Wehner’s report
concludes that such reliance was reasonable. Therefore, because evidence in the
record combined with Wehner’s expert testimony could establish that Collin and
Kalathas would not have discharged Orr from the hospital but for their reasonable
reliance on Robinette’s report and that Collin and Kalathas’s decision to discharge
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Orr led to Orr’s leg being amputated, the court finds that Third-Party Plaintiffs
have introduced sufficient expert evidence on causation to survive Third-Party
Defendants’ motion for summary judgment. Third-Party Defendants’ motion for
summary judgment is accordingly denied.
B. Third-Party Plaintiffs’ Motion for Leave to Produce a Supplemental
Expert Report Is Denied
Having denied the Third-Party Defendants’ motion for summary judgment,
the court will also deny the Third-Party Plaintiffs’ motion for leave to produce a
supplemental expert report. Because the deadline for all expert reports expired on
July 18, 2020, see Doc. 78 at 1, Third-Party Plaintiffs have to establish good cause
for the court to permit them to file a supplemental expert report. Fed. R. Civ. P.
16(b)(4). The court finds that good cause for such a modification is not present at
this time because the motion for summary judgment has been denied and there is
accordingly no need for an additional expert report to supplement Third-Party
Plaintiffs’ causation evidence at the summary judgment stage. The court will
accordingly deny the motion without prejudice to Third-Party Plaintiffs’ right to
file a renewed motion for leave to produce a supplemental expert report in
preparation for trial.
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CONCLUSION
For the foregoing reasons, Third-Party Defendants’ motion for summary
judgment and Third-Party Plaintiffs’ motion for leave to file a supplemental expert
report are denied. An appropriate order follows.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Court Judge
Middle District of Pennsylvania
Dated: November 16, 2020
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