In Damien Berg v. Bradley Maxfield, M.D. (2017AP1448), the Court of Appeals District IV upheld summary judgment dismissing patient Berg’s medical negligence claim against Dr. Maxfield.

Dr. Maxfield performed a voiding cystourethrogram (VCUG) procedure on Berg but did not interpret any remarkable results from the images. Berg consulted another doctor, who found a mass of plastic tubing on Berg’s bladder, which had to be surgically removed.

Berg filed a negligence action against Dr. Maxfield, believing initially that Dr. Maxfield failed to remove plastic tubing during the VCUG. However, in depositions, Dr. Maxfield and the two doctors who found the tubing and performed Berg’s removal surgery all testified that the tubing found in Berg could not have been from the VCUG Dr. Maxfield performed.

When Dr. Maxfield moved for summary judgment, Berg asked for more time to investigate Dr. Maxfield’s liability based on the previous deposition testimony. Berg also requested permission for an additional expert. The appeals court denied Berg’s claims and upheld the circuit court’s grant of summary judgment in favor of Dr. Maxfield, stating that Berg could reasonably have discovered previously that the tubing found in his bladder was not from Dr. Maxfield’s negligence in performing the VCUG. Furthermore, Berg cited no legal authority that would grant him more time to investigate other potential negligence by Dr. Maxfield.