                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-1477


JOSEPH CLEMENTE, Administrator of the Estate
of Paige Denise Prentice,

                                              Plaintiff - Appellant,

           versus


JOHN P. ROTH, Representative of the Estate of
Charles R. Cardany, M.D., deceased; UNITED
STATES OF AMERICA,

                                            Defendants - Appellees.


Appeal from the United States District Court for the District of
Maryland, at Greenbelt. William Connelly, Magistrate Judge. (CA-
01-865-WGC)


Argued:   March 21, 2006                   Decided:   April 20, 2006


Before WILKINS, Chief Judge, and WILLIAMS and SHEDD, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Theresa M. Blanco, EATON & MCCLELLAN, Philadelphia,
Pennsylvania, for Appellant.     Karen Roberts Turner, HAMILTON,
ALTMAN, CANALE & DILLON, L.L.C., Bethesda, Maryland; Tarra R.
DeShields-Minnis, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellees. ON BRIEF: Allen Theophilus Eaton, III,
THE EATON LAW FIRM, P.L.L.C., Washington, D.C., for Appellant.
Nadira Clarke, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for the United States, Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Joseph Clemente, Administrator of the Estate of Paige Denise

Prentice,    appeals   three   rulings   in   this   suit    arising   out   of

Prentice’s medical treatment for breast cancer.             Finding no error,

we affirm.



                                    I.

     In 1993, Dr. Charles R. Cardany contracted with the National

Institutes of Health (NIH), which the United States owns and

operates, to serve as an independent contractor performing medical

services, including plastic surgery, for NIH’s patients.                 This

contract was renewed annually through the time period relevant to

this case.

     Prentice was diagnosed with breast cancer in February 1997.

She approached NIH, hoping to take part in a study concerning

preoperative chemotherapy.      Although NIH officials determined that

Prentice was not a good candidate for the study, they informed her

that she could undergo a bilateral mastectomy and a simultaneous

breast reconstruction at NIH.      When Prentice decided to do so, NIH

assigned her Dr. David Danforth for the mastectomy and Dr. Cardany

for the reconstruction.

     The doctors performed the surgery on April 23, 1997. Prentice

had a follow-up appointment with Dr. Cardany in approximately June

1997, at the end of which Dr. Cardany asked Prentice to dinner.

Thus began a six-week consensual sexual relationship.



                                     2
       During this relationship, Prentice developed an infection with

her implants.       When Prentice asked Dr. Cardany about the implants,

he    told   her    there    was   no   problem.         However,      when   Prentice

subsequently developed a high fever, Dr. Cardany sent her to

another physician who informed her that the implants would need to

be removed.        Dr. Cardany performed the procedure.

       Sometime     in   1999,     Prentice      was   diagnosed       with   advanced

metastic cancer, from which she eventually died on July 21, 2001.

Before her death, Prentice filed a medical malpractice suit against

John P. Roth, the Personal Representative of Dr. Cardany, who had

died    following     the    events     at   issue     in     the   suit.     Prentice

maintained that the complications with her implants and the long

recovery period following her breast reconstruction delayed her

chemotherapy. After Prentice’s death, Clemente was substituted for

her as a party.       He amended the complaint in December 2001, adding

a claim against the United States based on Dr. Cardany’s negligence

and on NIH’s negligence in hiring Dr. Cardany.                      The United States

moved to dismiss the claim against it on the ground that, because

Dr. Cardany was an independent contractor rather than an employee,

the Government was protected from liability for any malpractice by

Dr.     Cardany      under     the      Federal        Tort     Claims      Act,   see

28 U.S.C.A. § 1346(b) (West Supp. 2005).                        The district court

granted the motion with regard to any claim of vicarious liability

for Dr. Cardany’s negligence, but granted Clemente leave to amend

the complaint once more to clarify the negligent hiring claim.



                                             3
       Prentice’s second amended complaint alleged four causes of

action, only the first two of which are relevant to this appeal.

The first alleged negligence on the part of Dr. Cardany in advising

Prentice of the risks attendant to the procedure employed in the

breast reconstruction surgery and in diagnosing and treating her

infection.    The second alleged negligence by NIH in hiring and

retaining Dr. Cardany.          That count alleged that Dr. Cardany was

under active supervision by the Maryland Board of Physician Quality

Assurance for a substance abuse problem and that NIH failed to make

an adequate investigation before granting privileges to Dr. Cardany

and    selecting   him     to    operate     on    Prentice   (the   “negligent

credentialing claim”).          The United States moved to dismiss, or in

the alternative, for summary judgment.             The district court granted

summary judgment against Clemente on the negligent credentialing

claim, concluding that he had failed to create a genuine issue of

material fact regarding whether the hospital would have rejected

Dr. Cardany’s application had it known all of the relevant facts.

       Clemente thereafter amended his complaint once again, this

time to allege that Dr. Cardany committed malpractice by engaging

in a sexual relationship with Prentice and to request punitive

damages based on Dr. Cardany’s allegedly willful, wanton, and

reckless conduct.        In light of the amendment, the parties agreed

that the trial would be bifurcated, with a first trial resolving

liability and damages unrelated to the sexual relationship, and

with   all   issues   relating      to   the      sexual   relationship   to   be

determined in a separate trial.

                                         4
       After the first trial, the jury returned a verdict in Roth’s

favor on the negligence issues, leaving for resolution only the

claim of malpractice arising out of the sexual relationship.                    Roth

successfully moved in limine, prior to the trial of this claim, to

exclude as inadmissible hearsay a letter written by Prentice to

Dr. Danforth.        The letter concerned the decision of what plastic

surgeon      would     be    chosen     to    complete     Prentice’s      breast

reconstruction after the removal of her implants.                  In the letter,

Prentice asked Dr. Danforth to refer her to two plastic surgeons so

that   she   could    meet   with     them   and   then   select    the   one    she

preferred.     She noted that “[t]he fundamental ethical boundaries

broken by Dr. Cardany and the low level of care provided by him

ha[d] left [her] feeling extremely violated and depressed,” such

that she felt that she needed “extra support from [Dr. Danforth]

and NIH in obtaining peace of mind and good health in a timely

manner.”     J.A. 538.

       The district court rejected Clemente’s contention that the

letter was admissible under the business records exception to the

hearsay rule because Prentice, the supplier of the information in

the letter, did not prepare the letter “in the course of a

regularly conducted business activity.”             Fed. R. Evid. 803(6); see

Rowland v. Am. Gen. Fin., Inc., 340 F.3d 187, 194-95 (4th Cir.

2003).    And, the court ruled that the letter could not come in as

a statement for purposes of medical diagnosis or treatment because

the information was not of the type that would have been reasonably

relied on by a physician in treatment or diagnosis.                  See Fed. R.

                                         5
Evid. 803(4); Morgan v. Foretich, 846 F.2d 941, 949 (4th Cir.

1988).

     Subsequently, the second trial commenced without a jury.            At

the close of evidence, the district court found against Clemente.

As is relevant here, the court concluded that Dr. Cardany’s sexual

relationship with Prentice would not constitute medical malpractice

under Maryland law. The court found it persuasive that courts from

other jurisdictions had held almost unanimously that, other than a

mental health professional or a doctor who essentially takes on the

role of a mental health professional, a doctor who does not induce

his patient to have sexual relations with him as necessary for

medical treatment does not commit medical malpractice simply by

engaging in sexual relations with his patient.                See Gunter v.

Huddle, 724 So. 2d 544, 546 (Ala. Civ. App. 1998); Korper v.

Weinstein, 783 N.E.2d 877, 879-80 (Mass. App. Ct. 2003); Odegard v.

Finne, 500 N.W.2d 140, 143 (Minn. Ct. App. 1993); Iwanski v. Gomes,

611 N.W.2d 607, 614 (Neb. 2000); Darnaby v. Davis, 57 P.3d 100, 104

(Okla. Civ. App. 2002).       But see Hoopes v. Hammargren, 725 P.2d

238, 242-43 (Nev. 1986) (holding that patient who engaged in

consensual sexual relations with her doctor while they had an

ongoing doctor-patient relationship may establish liability against

doctor for breach of fiduciary duty if she shows that the doctor

“held    a   superior   authoritative   position   in   the    professional

relationship,” “that, as a result of [the patient’s] illness, she

was vulnerable,” and that the doctor proximately caused her harm by

“exploit[ing] the vulnerability”).

                                    6
                                   II.

     Clemente   challenges   the   orders   granting   summary   judgment

against him on the negligent credentialing claim and granting

judgment against him on the claim based on the sexual relationship.

Clemente also contends that the district court erred in excluding

from evidence Prentice’s letter to Dr. Danforth.        Having reviewed

the record, the parties’ briefs, and the applicable law, and having

had the benefit of oral argument, we find no error and affirm on

the reasoning of the district court.


                                                                 AFFIRMED




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