Johnson v. Wexford Health Sources Inc.

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KAHIL JOHNSON, v. WEXFORD HEALTH SOURCES INC., et al.

No. 1736-2021

Court of Special Appeals of Maryland

November 2, 2022

Circuit Court for Prince George's County Case No CAL-1928883

Wells C.J. Zic, Ripken, JJ.

OPINION ^[*]

Ripken, J.

This appeal involves a challenge by Kahil Johnson ("K. Johnson") to the Circuit Court for Prince George's County's grant of summary judgment and a motion in limine in favor of Appellees, Wexford Health Sources, Inc. ("Wexford") and Dr. Wright. The court determined that Wexford and Dr. Wright could not be held liable, under a theory of negligence, for their actions related to a delay in treatment of Thomas Johnson's ("T. Johnson") terminal cancer. For the reasons discussed below, we shall affirm.

ISSUES PRESENTED FOR REVIEW

The parties present the following issues for our review, which we have condensed and consolidated:^[1]

I. Whether the court erred in considering Dr. Wright's Joinder in Wexford's Motin for Summary Judgment.

II. Whether the court erred in determining that there was no genuine dispute of material fact.

III. Whether the court erred in concluding that Wexford and Dr. Wright were entitled to judgment as a matter of law.

IV. Whether, after granting Wexford and Dr. Wrights' motion for summary judgment, the circuit court erred in granting their then-moot motion in limine.

The Circuit Court for Prince George's County considered and granted Dr. Wright's motion for joinder, found no genuine dispute of material fact, held that Wexford and Dr. Wright were entitled to judgment as a matter of law, and granted the motion in limine.

FACTUAL AND PROCEDURAL BACKGROUND

In the spring of 2013, T. Johnson developed pain in his groin and was subsequently diagnosed with prostate cancer. After a bone scan in November of 2014 confirmed T. Johnson's cancer had spread to his left hip, the cancer was reclassified as metastatic, a form of terminal cancer. From the initial cancer diagnosis until his incarceration, T. Johnson was treated by Dr. Dawson, a medical oncologist at the Georgetown Hospital's Lombardi Cancer Center ("Lombardi Center"). In February of 2015, T. Johnson underwent cryoablation to remove as much of a cancerous tumor from his hip as possible.^[2] After the procedure, T. Johnson required a walker for mobility and had constant hip pain. In the months leading up to his incarceration, T. Johnson's pain lessened only slightly, and he continued to rely on his walker.

On September 14, 2015, the Circuit Court for Prince George's County convicted T. Johnson and subsequently sentenced him to a period of incarceration in the Maryland Division of Corrections. On November 19, 2015, about a week into the commitment, T. Johnson underwent an initial health assessment and was enrolled in the chronic care clinic at the Jessup Regional Infirmary. To help optimize T. Johnson's cancer treatment, he was referred to Dr. Mannuel, an oncologist at the University of Maryland Medical Center ("UMMC"). At T. Johnson's initial visit with Dr. Mannuel on April 29, 2016, T. Johnson shared that "[h]e feels well overall aside from residual leg and hip pain" and that he relies on a walker to move around. The pain and mobility issues described in the initial visit made up T. Johnson's baseline symptoms. The effect of treatments in reducing pain and improving mobility were measured against T. Johnson's baseline for medical consistency.

On September 9, 2016, Dr. Mannuel reviewed T. Johnson's recent CT scan and noticed a mild increase in the size of his lymph nodes. The increased size, coupled with the rise in T. Johnson's PSA level to 17 ng/ml from 10 ng/ml in July of 2016,^[3] indicated to Dr. Mannuel the diminished effectiveness of T. Johnson's current medications. Dr. Mannuel consulted with Dr. Dawson, and they agreed that T. Johnson should switch medication from Xtandi to Zytiga. Dr. Mannuel expected the Zytiga to reduce T. Johnson's pain and suffering. Per routine, Dr. Mannuel marked the change in medication in a note sent back to the prison facility with T. Johnson's accompanying correctional officers.

Starting on September 14, 2016, Dr. Wright began to oversee T. Johnson's cancer treatment. Dr. Wright was an independent contractor hired by Summerfield and Associates, Inc. to treat Maryland prison inmates on Wexford's behalf. Wexford, in turn, had a contract with the State of Maryland to provide health services to inmates of facilities operated by the Maryland Division of Corrections. In his initial visit with Dr. Wright, T. Johnson was "chronically ill-appearing" and walked with a cane. Dr. Wright was aware of T. Johnson's most recent visit with Dr. Mannuel, but the record of the visit was not promptly available for Dr. Wright's review.^[4]

Dr. Mannuel attempted to reach Dr. Wright numerous times to ensure that T. Johnson began Zytiga treatment. However, the phone number that Dr. Mannuel used was never associated with Maryland prison medical facilities.^[5] Dr. Mannuel's nurse separately tried to reach Dr. Wright. On one occasion, someone answered the nurse's call and agreed to leave a message for Dr. Wright, but there is nothing in the record to suggest that a message reached him.

When T. Johnson saw Dr. Wright on October 27, 2016, Dr. Wright had not received a note from Dr. Mannuel and T. Johnson's medications remained unchanged. A week later, on November 3, Dr. Wright saw T. Johnson again. At this appointment, Dr. Wright prescribed Zytiga, indicating that he had received and reviewed Dr. Mannuel's note with his recommendation.

T. Johnson visited Dr. Wright again on November 17 and November 30, 2016. T. Johnson did not begin receiving Zytiga until approximately a week before his appointment with Dr. Mannuel on December 14, 2016.^[6] Prior to starting on Zytiga, T. Johnson's PSA level rose from 17 ng/ml on September 9 to 53 ng/ml on November 16, 2016. Additionally, T. Johnson reported baseline leg pain to Dr. Mannuel on November 16, but increased groin pain the next day to Dr. Wright. On November 30, T. Johnson spoke to Dr. Wright about persistent pain in his lower left groin area, and on December 3, 2016 he reported to a different doctor that he was not feeling well.

After at least one week into taking Zytiga, T. Johnson reported to Dr. Mannuel on December 14, 2016 that his pain and overall symptoms were baseline. At the same time, T. Johnson's PSA level had risen from 53 ng/ml to 70 ng/ml. Dr. Mannuel took the position that the PSA increase "might reflect his months off-therapy."

On January 11, 2017, T. Johnson's PSA level had decreased to 63 ng/ml and his medical records read that he, "appear[ed] to be tolerating [Zytiga] well." However, his chronic pain remained unchanged. Dr. Mannuel recommended palliative radiation to help with continuing leg and groin pain and that T. Johnson continue with Zytiga treatment.

On February 8, 2017, T. Johnson's PSA level had decreased again to 61 ng/ml, but his thigh and groin pain persisted. Dr. Mannuel also noted that Radiation Oncology would be following up with T. Johnson later in the week to begin therapy. Dr. Mannuel subsequently indicated that T. Johnson "[b]oth subjectively and objectively" appeared better and that "the medication and radiation combination" were helping T. Johnson. However, it is unclear from the record whether Dr. Mannuel's description refers to T. Johnson's February 8 visit or a visit in May of 2017.^[7]

On March 21, 2017, T. Johnson was released from prison on medical parole and stopped receiving medical care from Dr. Wright and Dr. Mannuel. Two days later, T. Johnson reestablished care with Dr. Dawson at the Lombardi Center. Dr. Dawson reported that T. Johnson had "ongoing pain in joints, lower back pain, knees and hips."

On May 12, 2017, T. Johnson had a medical appointment at UMMC. There, he told his doctor that radiation therapy had significantly lessened his pain for two months and that he could now walk short distances, albeit weakly and unsteadily. However, his chronic pain was slowly returning, and over the last two weeks he had been developing worsening headaches. Ultimately, T. Johnson's pain and condition worsened. His constant pain had increased, and his PSA level rose from 59 ng/ml on May 2 to 85 ng/ml on May 23, 2017.

During post-release treatment, T. Johnson remained on Zytiga. After a CT scan on June 13, 2017 showed the further spread of T. Johnson's cancer, a certified nurse practitioner at the Lombardi Center recommended chemotherapy to begin on June 23. T. Johnson passed away in his sleep on June 13, 2017.

Per Dr. Mannuel, the chance of Zytiga having a positive effect is just 15% when given as a second line of therapy after Xtandi. Because T. Johnson's cancer was terminal, there was no treatment that could have permanently stopped the cancer's progression and accompanying pain increases. Even so, Dr. Mannuel articulated that effective treatment could have slowed the cancer and improved and prolonged quality of life.

The Johnsons jointly^[8] filed a claim against Wexford and Dr. Wright in the Health Care Alternative Dispute Resolution Office on May 13, 2019. After the Johnsons waived arbitration, their claim was transferred to the Circuit Court for Prince George's County. Their claim against Wexford and Dr. Wright, filed on September 5, 2019, included counts of: (I) medical negligence, (II) wrongful death, and (III) deliberate indifference to a serious medical need. The claims purport to hold Dr. Wright directly liable and hold Wexford liable under agency and/or apparent agency theories.^[9] In preparation for trial, the Johnsons deposed Dr. Mannuel on August 6, 2020, and Dr. Dawson on September 18, 2020.

In response, Wexford filed a Motion for Summary Judgment on August 2, 2021 and an ...