United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE
Marzorati (“Marzorati”) and her husband, Lawrence
Marzorati, (collectively, “Plaintiffs”) are suing
MedStar Georgetown Medical Center, Inc., d/b/a Georgetown
University Hospital (“MGUH”) and Dr. Ivica Ducic
for medical malpractice arising from Marzorati's
unsuccessful nerve surgery in January 2008. The matter is
before the Court on Defendant MGUH's motion for partial
summary judgment on Plaintiffs' claims for negligent
hiring, supervision, and training, Dkt. 36, and Dr.
Ducic's motion for partial summary judgment, or, in the
alternative, for judgment on the pleadings on Plaintiffs'
claims for punitive damages, Dkt. 37. For the reasons set
forth below, the Court will GRANT MGUH's
motion, Dkt. 36, and will DENY Dr.
Ducic's motion, Dkt. 37, without prejudice.
met with Dr. Ducic, a physician specializing in plastic
surgery and peripheral nerve surgery, to treat her chronic
headaches. Dkt. 8 at 3 (Amd. Compl. ¶ 8). At the time,
Dr. Ducic was employed by MGUH. Id. (Amd. Compl.
¶ 7). Dr. Ducic recommended that Marzorati undergo a
surgical procedure known as an occipital neurectomy, which
involves a bilateral decompression of the dorsal and greater
occipital nerves and a bilateral transection of the lesser
occipital nerves. Id. (Amd. Compl. ¶ 12).
Marzorati underwent the operation on January 5, 2008.
Id. at 5 (Amd. Compl. ¶ 21). Afterwards,
Marzorati alleges that she was “left with severe,
untreatable, and disabling pain, ” which she describes
as “much worse” than what she experienced before
the surgery. Id. (Amd. Compl. ¶ 24). When
Marzorati described her symptoms during a follow-up visit,
Dr. Ducic informed her that they were “not
unusual” and advised her that “some people
require a second surgery.” Id. (Amd. Compl.
¶ 26). Marzorati, however, “decided against
[undergoing a] further procedure, ” id. (Amd.
Compl. ¶ 27), because of her frustration with the
results of her first surgery.
October 2016, more than eight years after the surgery,
Marzorati and her husband filed suit against Dr. Ducic, MGUH,
and MedStar Health, Inc. d/b/a/ MedStar-Georgetown Medical
Center, Inc. d/b/a Georgetown University Hospital
(“MedStar Health”). Dkt. 1. Their amended complaint
alleges medical negligence and loss of consortium (against
Dr. Ducic and MGUH) and negligent hiring/supervision/training
(against MGUH). Dkt. 8 at 6-9 (Amd. Compl. ¶¶
33-51). Marzorati seeks $60, 000, 000 in compensatory damages
and $10, 000, 000 in punitive damages from Dr. Ducic.
Id. at 8 (Amd. Compl. ¶ 42). Her husband seeks
$10, 000, 000 for loss of consortium. Id. at 9 (Amd.
Compl. ¶ 51).
Defendants moved to dismiss the amended complaint as
time-barred. See Dkt. 9 at 3 (citing D.C. Code
§ 12-301(8) (setting forth a three-year statute of
limitations for negligence actions)). The Court granted in
part and denied in part that motion. See Marzorati v.
MedStar-Georgetown Med. Ctr., Inc., 265 F.Supp.3d 24
(D.D.C. 2017). The Court dismissed Marzorati's informed
consent claim because “the factual allegations
contained in Marzorati's own complaint establish[ed] that
she knew or should have known, as early as April 2008, that
[Dr.] Ducic and the hospital had failed to inform her of the
risk that [her surgery] . . . might make her pain worse,
rather than better.” Id. at 27. The Court
declined to dismiss Marzorati's negligence claims,
however, because the Court could not conclude “as a
matter of law” that Marzorati had “failed to
exercise reasonable diligence in investigating whether her
injury was caused by [Dr.] Ducic or the hospital's
incompetence.” Id. at 30.
the close of discovery, Defendants moved for summary judgment
on the same ground. See Dkt. 35 at 3-4 (arguing that
Marzorati's negligence claims are time-barred). In
addition, MGUH moved for partial summary judgment on
Marzorati's negligent hiring, training, and supervision
claims, Dkt. 36, and Dr. Ducic moved for partial summary
judgment, or, in the alternative, for judgment on the
pleadings, on Marzorati's claim for punitive damages,
Dkt. 37. The Court held oral argument on all three motions on
March 14, 2019. At the hearing, the Court denied
Defendants' statute of limitations motion on the ground
that there exists “a genuine dispute of material fact
as to whether [Marzorati] had any reasonable belief or
inquiry notice that she was the victim of Dr. Ducic's
alleged malpractice before [March 2016]; and, if so, whether
reasonable due diligence required her to investigate Dr.
Ducic's assurances that her failed surgery was
normal.” Dkt. 54 at 34 (Motions Hrg. Tr.). The Court
reserved on the issue of punitive damages. Id. at
80-81 (Motions Hrg. Tr.). With respect to Plaintiffs'
negligent hiring, training, and supervision claims, the Court
expressed skepticism that there was sufficient evidence that
“MedStar Georgetown actually had reason to believe that
Dr. Ducic was engaged in dangerous behavior.”
Id. at 38 (Motions Hrg. Tr.). The Court,
nevertheless, permitted the parties to submit supplemental
briefing on that issue, see Id. at 66-67 (Motions
Hrg. Tr.). Briefing is now complete.
is entitled to summary judgment under Federal Rule of Civil
Procedure 56 if it can “show that there is no genuine
dispute as to any material fact and [that it] is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). The
party seeking summary judgment “bears the initial
responsibility” of “identifying those
portions” of the record that “demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
A fact is “material” if it could affect the
substantive outcome of the litigation. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a
dispute is “genuine” if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party. See Scott v. Harris, 550 U.S. 372, 380
(2007). The Court must view the evidence in the light most
favorable to the nonmoving party and must draw all reasonable
inferences in that party's favor. See Talavera v.
Shah, 638 F.3d 303, 308 (D.C. Cir. 2011).
moving party carries this initial burden, the burden then
shifts to the nonmoving to show that sufficient evidence
exists for a reasonable jury to find in his or her favor with
respect to the “element[s] essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Id. (quoting
Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir.
2006)). The nonmoving party's opposition must,
accordingly, consist of more than unsupported allegations or
denials, and must be supported by affidavits, declarations,
or other competent evidence setting forth specific facts
showing that there is a genuine issue for trial. See
Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324.
That is, if the moving party carries its initial burden on
summary judgment, the nonmoving party must provide evidence
that would permit a reasonable jury to find in his or her
favor. See Laningham v. U.S. Navy, 813 F.2d 1236,
1241 (D.C. Cir. 1987). If the nonmoving party's evidence
is “merely colorable” or “not significantly
probative, ” the Court should grant summary judgment.
Liberty Lobby, 477 U.S. at 249-50.
MGUH's Motion for Partial Summary Judgment
moves for partial summary judgment on Plaintiffs'
negligent hiring, supervision, and training claims. Dkt. 36.
At oral argument, Plaintiffs' counsel conceded that
Plaintiffs are no longer pursuing their claims for negligent
hiring. Dkt. 54 at 37-38 (Motions Hrg. Tr.). Moreover,
Plaintiffs' counsel did not make any argument as to
Plaintiffs' negligent training claims, and Plaintiffs
failed to oppose MGUH's motion for partial summary
judgment on those claims in their brief in opposition or in
their supplemental briefing. See Dkt. 42; Dkt. 51.
The Court will, accordingly, grant summary judgment in favor
MGUH on Plaintiffs' claims for negligent hiring and
training and will consider only Plaintiffs' claims
against MGUH for negligent
D.C. law, a plaintiff alleging negligent supervision must
provide factual evidence that the employer “knew or
should have known its employee behaved in a dangerous or
otherwise incompetent manner, and that the employer, armed
with that actual or constructive knowledge, failed to
adequately supervise the employee.” Rawlings v.
District of Columbia, 820 F.Supp.2d 92, 114 (D.D.C.
2011) (quoting District of Columbia v. Tulin, 994
A.2d 788, 794 (D.C. 2010)). In order to succeed, the
plaintiff must provide “proof that the employer
breached a duty to plaintiff to use reasonable care in the
supervision or retention of an employee which proximately
caused harm to plaintiff.” Phelan v. City of Mount
Ranier, 805 A.2d 930, 940 (D.C. Cir. 2002). In ...