Allen v. United States

• Decision Date: 16 February 2018
• Docket Number: CV 115-147
• Parties: JANICE LYNETTE ALLEN, as Successor in Interest, and as Administrator of the Estate of Timothy Lional Allen, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — Southern District of Georgia

JANICE LYNETTE ALLEN, as Successor in Interest, and as Administratorof the Estate of Timothy Lional Allen, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

CV 115-147

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION

February 16, 2018

ORDER

Before the Court is Defendant's motion for summary judgment. (Doc. 32.) The Clerk of Court gave Plaintiff timely notice of Defendant's summary judgment motion and the summary judgment rules, of the right to file affidavits or other materials in opposition, and the consequences of default. (Doc. 33.) Therefore, the notice requirements of Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam), have been satisfied. Plaintiff filed a response and sur-reply in opposition, and Defendant filed a reply and sur-reply in support. (Docs. 38, 40, 44, 46.) The time for filing materials in opposition has expired, and the motion is ripe for consideration. Upon consideration of the record, relevant law, and the parties' respective briefs, Defendant's motion for summary judgment is GRANTED.¹

I. BACKGROUND

Prior to his death, Timothy Lional Allen ("Decedent"), a veteran of the United States Army, received treatment from the Charlie Norwood VA Medical Center in Augusta, Georgia (the "VA"). (Defendant's Statement of Material Facts as to Which There is No Dispute ("DSMF"), Doc. 32-8,² ¶ 2; Doc. 29, ¶ 6.)Decedent was referred to the VA's urology clinic "'after a [prostate specific antigen ("PSA")] screening test revealed elevation of his PSA'" level between September 2010 and June 21, 2011. (DSMF ¶ 6 (quoting Doc. 32-1, at 31).) At an appointment at the VA's urology clinic on June 22, 2011, Decedent was prescribed antibiotics "'for possible prostatitis, one possible cause of his increasing PSA'" and "advised to follow up in four to six weeks for an additional PSA screen." (Id. (quoting Doc. 32-1, at 32).) At this follow-up visit on July 20, 2011,Decedent's PSA level was tested and he was advised to return for another follow-up in six months. (Id. ¶ 7 (citing Doc. 32-1, at 29-30).) During his next follow-up visit on January 18, 2012, Decedent's PSA level was tested again and he was advised to return for a follow-up visit in July 2012.³ (Id. ¶ 8 (citing Doc. 32-1, at 24-25).)

At a follow-up visit to the VA's urology clinic on July 25, 2012, Decedent's PSA level was tested again and he was scheduled for another follow-up visit six months later. (Id. ¶ 10 (citing Doc. 32-1, at 20-21).) The results of the July 25, 2012 PSA screen - apparently obtained after Decedent had already left the clinic - were noted to be "'the highest value yet'" and, "given their persistent elevation," it was decided that Decedent should be instructed to return to the clinic and schedule a preoperative evaluation for a biopsy of his prostate. (Id. (citing Doc. 32-1, at 21); Doc. 32-1, at 21.) Accordingly, on July 26, 2012, a medical student called Decedent at his phone number of record. (DSMF ¶ 11 (citing Doc. 32-1, at 21-22; and Doc. 32-4, ¶¶ 4-5).) When Decedent did not answer, however, the medical student left a message advising Decedent of his elevated PSA level and requesting that he contact the VA's urology clinic to schedule a biopsy of his prostate. (Id.) Nevertheless, Decedent did not schedule the biopsy or return to the VA'surology clinic until January 22, 2013, where his PSA level was tested again and a biopsy of his prostate was scheduled for March 11, 2013. (Id. ¶ 12 (citing Doc. 32-1, at 18-19).) Based on the results of this biopsy, Decedent was diagnosed with prostate cancer. (Id. ¶ 13 (citing Doc. 32-1, at 16); see also Doc. 28, at 1 ("In March 2013, [Decedent] was diagnosed with prostate cancer and began treatment at the [VA].").)

During a visit to the VA's hematology and oncology clinic on May 16, 2014, the physicians attending to Decedent noted that he had developed bone metastasis (i.e., cancer had spread to several of his bones). (Id. ¶ 23 (citing Doc. 32-1, at 8-9).) These physicians recommended that Decedent receive Zometa (zoledronic acid) to treat his bone metastasis.⁴ (Id.) Decedent's kidney function was also evaluated during this visit.⁵ (Id. (citing Doc. 32-1, at 6).) On May 23, 2014, Decedent's kidney function was checked again and he was subsequently administered 4 mg of Zometa by intravenous infusion by aregistered nurse at the VA. (Id. ¶¶ 24-26 (citing Doc. 32-1, at 2-4).)

Decedent's kidney function was checked again at the VA on June 12, 2014. (Id. ¶ 30 (citing Doc. 32-2, at 2).⁶) On June 13, 2014, Decedent left the VA against medical advice. (Id. ¶ 31 (citing Doc. 32-1, at 2).) Later that same day, Decedent was admitted to Doctors Hospital of Augusta ("DHA") for symptomatic anemia. (Id. ¶ 32 (citing Doc. 32-3, at 18).) During an oncology consult at DHA on June 16, 2014, the physician attending to Decedent noted that Decedent was due for an infusion of Zometa but - because Zometa was not available at DHA - he received Aredia (pamidronic acid) instead.⁷ (Id. ¶ 34 (citing Doc. 32-3, at 27).) Decedent was discharged from DHA on June 18, 2014. (Id. ¶ 36 (citing Doc. 32-3, at 33).) Notably, during the course of his admission to DHA between June 13 and 18, 2014, Decedent's kidney function was evaluated four times. (Id. ¶ 33 (citing Doc. 32-3, at 23, 30, 36, 40).) Decedent was readmitted to DHA on June 21, 2014 and diagnosed with acute renal failure on June 22, 2014. (Id. ¶¶ 37-38, 40 (citing Doc. 32-3, at 2, 9, 13).) Decedent was discharged from DHA to hospice care on June 26, 2014. (Id. ¶ 37 (citing Doc. 32-3, at2); Doc. 32-3, at 4.) Decedent passed away in February 2015 at the age of 51. (Doc. 29, ¶ 5.)

Plaintiff - as Decedent's successor in interest and administrator of his estate - initiated this action on September 15, 2015.⁸ (Doc. 1.) On April 11, 2016, Defendant filed a motion to dismiss this action for insufficient service of process. (Doc. 7.) On October 11, 2016, Plaintiff filed her amended complaint. (Doc. 23.) On November 29, 2016, Plaintiff furnished the expert witness report of Daniel E. Buffington, Pharm.D., MBA. (Doc. 28.) On March 27, 2017, Defendant filed its present motion for summary judgment. (Doc. 32.) On June 1, 2017, the Court denied as moot Defendant's motion to dismiss. (Doc. 43.)

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted).

"[The] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record before the court] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If - and only if - the movant carries its initial burden, the non-movant may avoid summary judgment by demonstrating that there is indeed a genuine issue as to the material facts of its case. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Facts are "material" if they could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of those material facts "is 'genuine' . . . [only] if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id.

When ruling on the motion, the Court must view all the evidence in the record in the light most favorable to the non-moving party and resolve all factual disputes in the non-moving party's favor. Matsushita, 475 U.S. at 587. The Court must also avoid weighing conflicting evidence. Anderson, 477 U.S. at 255; McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 934 (11th Cir. 1987). Nevertheless, the non-moving party's response to the motion for summary judgment must consist of more than conclusory allegations, and a mere "scintilla" of evidencewill not suffice. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990); Pepper v. Coates, 887 F.2d 1493, 1498 (11th Cir. 1989). "The non-moving party cannot create a genuine issue of material fact through speculation, conjecture, or evidence that is 'merely colorable' or 'not significantly probative.'" Bryant v. Dougherty Cty. Sch. Sys., 382 F. App'x 914, 917 (11th Cir. 2010) (quoting Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008); and Anderson, 477 U.S. at 249-50).

III. DISCUSSION

In her amended complaint, Plaintiff alleges two medical malpractice claims pursuant to the Federal Tort Claims Act ("FTCA") against Defendant for the alleged acts or omissions of the "physicians, nurses, and other staff of the [VA]."⁹ (Doc. 23, ¶¶ 20-27.) More specifically, Plaintiff's first count alleges that these staff members committed malpractice "by negligently prescribing [Decedent] renal toxic medications that caused him kidney failure after having previously diagnosing him with early stage renal failure multiple times and instructing him not to take any renal toxic medications" (hereinafter, the "Improper Treatment Claim"). (Id. ¶¶ 20-23.) Plaintiff's second count alleges that Defendant's staff also committed malpractice "by negligently failing to follow up with [Decedent]regarding his elevated PSA levels and allowing his cancer to develop and grow until it was end stage" (hereinafter, the "Failure to Diagnose Claim"). (Id. ¶¶ 24-27.)

A. Improper Treatment Claim

"Liability in an FTCA action is determined in accordance with the law of the place where the government's act or omission occurred . . . ." Stevens v. Battelle Mem'l Inst., 488 F.3d 896, 899 n.3 (11th Cir. 2007) (citing Cole v. United States, 755 F.2d 873, 879 n. 16 (11th Cir. 1985); and 28 U.S.C. §...