Opinion
CIVIL ACTION NO. 1:04-cv-1475-GET.
November 28, 2005
ORDER
The above-styled matter is presently before the court on defendant's motion for summary judgment or dismissal of all claims [docket no. 16].
Plaintiff filed the instant action on May 25, 2004 pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. ("FTCA"), alleging that Robert S. Boy was injured through the negligence of federal employees at the Veteran's Administration Medical Center ("VA") while undergoing medical treatment in Decatur, Georgia. On June 20, 2005, defendant filed a motion for summary judgment or dismissal of all claims.
Motion to Dismiss
Defendant argues that plaintiff's claims in his capacity as administrator must be dismissed for failure to exhaust administrative remedies under the FTCA. Defendant also argues that plaintiff's claims in all capacities except his individual capacity are not permitted by Georgia law, and are thus barred by the FTCA.
Standard
A motion to dismiss under Rule 12(b)(6) attacks the legal sufficiency of the complaint. It is viewed with disfavor and rarely granted. See e.g., Int'l Erectors, Inc. v. Wilhoit Steel Erectors Rental Serv., 400 F.2d 465, 471 (5th Cir. 1968). A complaint should not be dismissed for failure to state a claim unless the plaintiff can prove no set of facts entitling him to relief. Hishon v. King Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229 (1984); Pataula Elec. Membership Corp. v. Whitworth, 951 F.2d 1238, 1240 (11th Cir. 1992). The court is to presume true all of the complaint's allegations and make all reasonable inferences in favor of the plaintiff. Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). The rules require nothing more than "a short and plain statement" that will give the defendant fair notice of the claims and the grounds upon which they are based. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99 (1957).
Discussion
Under the doctrine of sovereign or governmental immunity, the United States of America is immune from suit except to the extent that immunity has been expressly waived by statute. Lehman v. Nakshian, 453 U.S. 156, 160, 101 S. Ct. 2698 (1981). Thus, absent an express statutory waiver, a court lacks subject matter jurisdiction to entertain an action against the United States, and the action must be dismissed. United States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767 (1941). The FTCA includes such a waiver, permitting the United States to "be held liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. The parties agree that the instant action is brought against the United States under the FTCA. Defendant argues that plaintiff has not complied with the pre-requisites to suit under the FTCA, and that therefore that statute does not waive immunity for these claims.
Before a court claim may proceed against the United States, section § 2675 of the FTCA requires a claimant to present his claim to the appropriate federal agency and receive from that agency a denial of the claim in writing. Plaintiff has filed two claims with, and received denials from, the Department of Veteran's Administration in his individual capacity and as personal representative of Robert Boy. Defendant argues that because plaintiff did not also file a claim in his capacity as administrator, he may not now bring an action in that capacity. Plaintiff argues that his filings fulfilled the purpose of the statute because the agency was put on notice by the filings, and was able to conduct an investigation into plaintiff's decedent's medical care at the VA.
Initially, the court notes that Georgia courts look to the substance of the claim asserted to determine in which capacity the action is brought. For example, one Georgia court found that the "[p]ersonal representative is . . . as `one who manages affairs of another because of incapacity or death. Includes executor, administrator." Bernard v. Nationwide Mut. Fire Ins. Co., 206 Ga. App. 519, 521 (1992). Another case refers to separate claims by administrator and personal representative, but treats the "personal representative" action as a claim brought in plaintiff's individual capacity. Georgia Dept. Of Human Resources v. Phillips, 223 Ga. App. 520 (1996), overruled on other grounds by 268 Ga. 316 (1997). From plaintiff's treatment of the claims in his response to defendant's motion, it is clear that plaintiff advances the same interests as "administrator" and as "personal representative." Further, section 2675 does not require a claimant to enumerate each theory of liability in the claim, especially when the actions are based on the same injury in fact so the agency is unlikely to conduct a second investigation or act any differently. Brown v. U.S., 838 F.2d 1157, 1160-1161 (11th Cir. 1988). Accordingly, the court finds that none of plaintiff's claims must be dismissed for failure to exhaust administrative remedies.
Defendant also argues that Georgia law, which applies to the instant matter through section 2674, provides no wrongful death claim to the administrator or personal representative of the estate, and therefore plaintiff's claims brought as administrator and personal representative should be dismissed.
Pursuant to O.C.G.A. §§ 51-4-2 and 51-4-4, a cause of action for wrongful death vests in the following order, moving to the next in line only when no one exists in the previous class: surviving spouse, then any children of the deceased, then the parent. "When there is no person entitled to bring an action for the wrongful death of the decedent under Code Section 51-4-2 or 51-4-4, the administrator or executor of the decedent may bring an action for and may recover and hold the amount recovered for the benefit of the next of kin." O.C.G.A. § 51-4-5. In the instant matter, there is a person entitled to bring an action under O.C.G.A. § 51-4-2: plaintiff, as surviving child. Therefore, there is no wrongful death claim available to the administrator. Further, for the reasons discussed above, claims brought as personal representative are treated the same as claims brought by the administrator. Accordingly, to the extent that plaintiff seeks to recover in his capacity as administrator or personal representative for the wrongful death of plaintiff's decedent, his claim is dismissed.
Defendant argues that this leaves only plaintiff's claim for wrongful death in his individual capacity. However, Georgia law permits the administrator and personal representative to bring actions other than wrongful death on behalf of the estate. Plaintiff's complaint alleges that "[a]s a direct and proximate result of Defendant's negligent acts and/or omissions, Plaintiff James R. Boy, as Administrator of the Estate of Robert S. Boy, Deceased, has incurred damages for funeral and burial expenses; hospital and medical expenses; damages for decedent Robert S. Boy's injuries, pain and suffering prior to his death." Pursuant to O.C.G.A. § 51-4-5(b), the personal representative of the decedent may recover for the "funeral, medical, and other necessary expenses resulting from the injury and death" of a decedent injured by negligence. "An individual's claim for wrongful death and an estate's claim for pain and suffering are distinct causes of action." Smith v. Mem'l Med. Center, Inc., 208 Ga. App. 26, 27 (1993). Consequently, plaintiff may proceed with his negligence claims as administrator and personal representative.
Accordingly, and for all the aforementioned reasons, defendant's motion to dismiss, contained within its motion for summary judgment and dismissal of all claims [docket no. 31] is GRANTED to the extent that plaintiff seeks to recover in his capacity as administrator or personal representative for the wrongful death of plaintiff's decedent. Defendant's motion is DENIED as to all other claims. Any wrongful death claims raised by plaintiff in any capacity other than his individual capacity are hereby DISMISSED.
Motion for Summary Judgment
Standard
Courts should grant summary judgment when "there is no genuine issue as to any material fact . . . and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party must "always bear the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). That burden is `discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325; see also U.S. v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991).Once the movant has met this burden, the opposing party must then present evidence establishing that there is a genuine issue of material fact. Celotex, 477 U.S. at 325. The nonmoving party must go beyond the pleadings and submit evidence such as affidavits, depositions and admissions that are sufficient to demonstrate that if allowed to proceed to trial, a jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). If he does so, there is a genuine issue of fact that requires a trial. In making a determination of whether there is a material issue of fact, the evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his favor. Id. at 255; Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). However, an issue is not genuine if it is unsupported by evidence or if it is created by evidence that is "merely colorable" or is "not significantly probative."Anderson, 477 U.S. at 249-50. Similarly, a fact is not material unless it is identified by the controlling substantive law as an essential element of the nonmoving party's case. Id. at 248. Thus, to create a genuine issue of material fact for trial, the party opposing the summary judgment must come forward with specific evidence of every element essential to his case with respect to which (1) he has the burden of proof, and (2) the summary judgment movant has made a plausible showing of the absence of evidence of the necessary element. Celotex, 477 U.S. at 323.
Facts
In light of the foregoing standard, the court finds the following facts for the purpose of resolving this motion for summary judgment only. Mr. Boy, plaintiff's father, underwent a colonoscopy at the VA in Decatur the afternoon of May 1, 2001. Dr. Bhawna Halwan, M.D. performed the colonoscopy. At the time of Mr. Boy's surgery, Dr. Halwan had completed a fellowship in gastroenterology from 1997-2000, during which she performed colonoscopies, and had been on staff at the VA for about four months, performing approximately 150 colonoscopies per month. Prior to Mr. Boy's colonoscopy, Dr. Halwan reviewed an informed consent with him and advised him of known risks such as perforation, bleeding, infection and death. Dr. Halwan explained that the procedure involved filling the colon with air and inserting a flexible tube containing a scope, approximately one centimeter in diameter, through the colon from the rectum to the cecum, examining the colon as it is removed.
At 2:10 p.m., prior to Mr. Boy's colonoscopy, Mr. Boy's pain was zero on a 10-point scale and he displayed no abdominal distention. The procedure started at 3:30 p.m. and ended at 4:27 p.m. Within five minutes of inserting the scope in Mr. Boy's rectal area, his pain level increased by a factor of three despite three doses of pain medication. Within ten minutes, the pain worsened. During the procedure, Mr. Boy's complaints of pain reached level five despite seven doses of pain medication. The scope passed through the colon with some difficulty due to frequent looping. Dr. Bloom, Chief of Gastroenterology Unit at the VA, was called to assist Dr. Halwan because she was having difficulty passing the scope through the colon. Eighteen minutes after the procedure, Mr. Boy's complaints of pain returned to zero.
Dr. Halwan testified that it is normal following a colonoscopy for the patient to have some abdominal cramps, to be improving as he passes flatus, and to have mild abdominal distention. However, following the colonoscopy and prior to discharge, Mr. Boy was doubled over in pain. In the presence of VA healthcare providers, Mr. Boy indicated that he was in "bad pain." The attending nurse noted that Mr. Boy's abdomen was distended and that he had abdominal cramps. A patient has "persistent abdominal distention" when his abdomen remains distended forty-five minutes after completion of a colonoscopy, despite passing gas twice. Persistent abdominal distention could indicate a perforated bowel.
The attending nurse called Dr. Halwan to determine whether discharge was proper. Mary Ferguson, a registered nurse who worked at the VA during May 2001, testified that it was standard procedure for the attending registered nurse to discharge a colonoscopy patient without consulting a physician, absent unusual clinical symptoms. Symptoms that would warrant a nurse to call a physician for a consult included abdominal pain and distention.
When an attending physician must be consulted before a post colonoscopy discharge, standard policy required the physician to note and record her discharge examination of the patient. Dr. Halwan authorized Mr. Boy's discharge to his home in Royston, Georgia, eighty-five miles from the VA, sometime after 5:30 p.m. on May 1, 2001. Further, there is no notation of the discharge examination Dr. Halwan claims to have made. Dr. Bloom was not involved with Mr. Boy's discharge and has no personal knowledge of what Dr. Halwan did prior to discharging Mr. Boy.
At the time of his discharge, Mr. Boy was instructed to report to his doctor immediately if he experienced a large amount of blood in stool, chills, fever, severe abdominal pain, increased abdominal distention, rectal spasms, or abnormal rectal drainage. Mr. Boy called the VA at 7:48 a.m. on May 2, 2001 complaining of severe abdominal pain, fullness, rectal bleeding, and inability to pass flatus. Mr. Boy was advised to go to the nearest emergency room. When Mr. Boy indicated a lack of transportation, he was told to call 911. Mr. Boy requested other options first. A physician called Mr. Boy back at 8:12 a.m. and told him to lay on his abdomen and try to release air, but that if his pain continued and he was unable to release air, to call 911.
Mr. Boy arrived by private vehicle at the emergency room at Ty Cobb Memorial Hospital ("ER") at 1:40 p.m. on May 2, 2001, complaining of severe abdominal pain. The triage assessment classified him as non-urgent, so he was not placed in an exam room until 4:40 p.m. Mr. Boy was seen by a physician at 5:20 p.m. The physician ordered chest x-rays, which revealed free air under Mr. Boy's left diaphragm and an obstruction of the small bowel. At 10:55 p.m. Mr. Boy was admitted and taken into an operating room. His abdomen was "massively distended." After removing a large amount of blood that had collected in Mr. Boy's abdominal cavity, ER physician Dr. Kelly found the source of the blood, a 1.5 cm rectal tear.
The ER physician noted that Mr. Boy suffered severe abdominal pain "after getting VA colonoscopy." The ER discharge summary noted that Mr. Boy had come to the ER with "a ruptured rectum from a recent colonoscopy." Mr. Boy was transferred from the ER to the VA. In progress notes in May, Mr. Boy's VA hematologist noted that he was in the hospital "after elective colonoscopy was complicated by perforation." Postoperative notes at the VA again noted that Mr. Boy had suffered a "colonoscopy with rectal perforation" during a physical therapy consultation in June. Mr. Boy died on July 3, 2001. The discharge summary explained that he had been initially admitted "after having colon perforated during colonoscopy."
Plaintiff seeks to establish, through testimony of its expert, that the standard of care requires that physicians vigilantly seek to identify symptoms of a perforated bowel following colonoscopy, such as abdominal pain and abdominal distention, and upon discovery of these symptoms, perform a simple upright chest x-ray or CT scan to rule out bowel perforation by determining whether there is free air in the diaphragm. Both tests were available at the VA on May 1, 2001; either would have identified free air in Mr. Boy's abdominal cavity. Plaintiff further contends, based on its expert's report, that if Dr. Halwan had performed an x-ray of Mr. Boy's bowel at the time of his discharge, more likely than not she would have seen a perforation that occurred during the colonoscopy.
A rectal examination performed by Dr. Halwan prior to Mr. Boy's colonoscopy did not reveal any tears, perforations, or other abnormalities. Following the colonoscopy and before Mr. Boy's surgery in the ER, no physician other than VA physicians provided care or treatment to Mr. Boy. Before any invasive procedure in the ER, a chest x-ray revealed Mr. Boy's perforated bowel. Further, though Dr. Halwan argued a tear at the location of Mr. Boy's tear would cause the patient to pass blood from the rectum, and Mr. Boy was not doing so at the time he was discharged, she had not performed any rectal examination following the colonoscopy.
Peter Bloom, M.D., Chief of Gastroenterology Unit at the VA from November 1999 until July 2002, provided defendant's expert report. He explained that early signs of a perforation can include persistent severe pain, abdominal distention, and tachycardia, and observed that "none of these signs were apparent in the record during Mr. Boy's recovery from his colonoscopy." Dr. Bloom testified that there was nothing unusual about Mr. Boy's colonoscopy. Dr. Bloom opined that because Mr. Boy exhibited no symptoms indicative of a complication before leaving the VA, there could be no breach of the standard of care. Further, Dr. Bloom opined that the delay in recognizing and treating the perforation is attributable to Mr. Boy's failure to timely seek medical attention and the time required to evaluate and prepare him for surgery after he arrived at the ER. Dr. Bloom also opined that "[e]ven if a perforation had been diagnosed immediately, it is unlikely that Mr. Boy would have survived," due to "significant preexisting medical problems including liver disease, alcohol abuse, congestive heart failure, chronic obsessive pulmonary disease, renal insufficiency," and a "ploymicrobial wound infection" that Mr. Boy developed after the ER surgery.
Plaintiff designated Jerry Bush, M.D. as its expert. Dr. Bush is a board certified internal medicine physician who has practiced internal medicine for over twenty years, and is familiar with the diagnostic and treatment issues raised by the facts of Mr. Boy's case based on his education, training and experience. His expert report opines that the VA health care providers' breach of the standard of care in failure to suspect, rule out, and promptly treat Mr. Boy's bowel perforation, resulted in a complicated and stormy postoperative course from which Mr. Boy did not recover.
Discussion
To impose liability for medical malpractice, a plaintiff must show: (1) the duty inherent in a professional-patient relationship; (2) a deviation from the appropriate standard of care; and (3) a showing that the failure to exercise the requisite degree of skill is the proximate cause of the injury sustained." Breyne v. Potter, 258 Ga. App. 728, 729 (2002). Defendant attacks plaintiff's claim on the basis that plaintiff has no evidence to establish breach of the standard of care or causation.
First, defendant argues that plaintiff's claim must fail because plaintiff cannot establish breach of the standard of care. Defendant contends that Dr. Halwan did not fall below the standard of care in failing to rule out a perforated bowel because Mr. Boy did not exhibit any symptoms of a perforation until several hours after he was discharged from the VA. Defendant argues that there is absolutely no evidence that should have caused Dr. Halwan to suspect that Mr. Boy had a perforated colon before he left the VA. Having reviewed the evidence presented by both parties, however, the court finds that sufficient evidence has been presented to create a question of fact as to whether Dr. Halwan breached the standard of care by failing to detect Mr. Boy's perforated colon.
Secondly, defendant argues that plaintiff's claim must fail because plaintiff cannot establish that the VA healthcare professionals' failure to detect and treat the perforated colon caused Mr. Boy's death. Specifically, defendant contends that Mr. Boy would have died even had the perforation been detected, due to his other health problems, including the laceration to the colon during his ER treatment, liver disease, alcohol abuse, congestive heart failure, chronic obsessive pulmonary disease, and renal insufficiency. Having reviewed the evidence presented by both parties, however, the court finds that sufficient evidence has been presented to create a question of fact as to whether the perforated colon caused plaintiff's death.
The court has considered the testimony of both experts in evaluating this motion for summary judgment. Each party's motion or response raises concerns about the other's expert's testimony. Defendant indirectly questions the qualifications of plaintiff's expert, noting that its own expert considers the testimony of plaintiff's expert to be "misleading and false." However, defendant does not make a motion to exclude or otherwise ask the court not to consider the testimony. For purposes of summary judgment, the court finds that plaintiff's expert is sufficiently qualified for the court to consider his testimony. Plaintiff directly moves to strike the testimony of defendant's expert that is based on his report [docket no. 13] as improper summary judgment evidence because it is neither sworn nor given under penalty of perjury. Despite the fact that the report is electronically signed but not sworn, it is entitled to some consideration in deciding the motion for summary judgment. Further, defendant also relies on testimony from Dr. Bloom's deposition, to which plaintiff does not raise objections. Accordingly, plaintiff's motion to strike, contained within its response to the motion for summary judgment, [docket no. 22] is DENIED.
Because plaintiff has sufficient evidence to create a question of fact as to breach and causation, defendant's motion for summary judgment [docket no. 16] is DENIED.
Summary
Defendant's motion for summary judgment and dismissal of all claims [docket no. 31] is GRANTED to the extent that plaintiff seeks to recover in his capacity as administrator or personal representative for the wrongful death of plaintiff's decedent, and DENIED as to all other claims. Consequently, any wrongful death claims raised by plaintiff in any capacity other than his individual capacity are hereby DISMISSED.
Plaintiff's motion to strike, contained within its response to the motion for summary judgment, [docket no. 22] is DENIED.
SO ORDERED.