Blackburn v. United States
| Decision Date | 28 September 2021 |
| Docket Number | 2:18-cv-00116-DBB |
| Parties | TONYA KIM BLACKBURN, Plaintiff, v. UNITED STATES, et al., Defendants. |
| Court | U.S. District Court — District of Utah |
District Judge David Barlow Defendant United States of America filed a Motion for Partial Summary Judgment on Plaintiff's claims that the Moab Free Health Clinic (“MFHC”) failed to adequately hire, train, and supervise clinic personnel.[1] Because Plaintiff failed to exhaust her administrative remedies with respect to her failure to hire and train claims and because Plaintiff's supervision claims are subject to the discretionary-function exception to the Federal Tort Claims Act, the court GRANTS the United States' motion for partial summary judgment.
From December 21, 2014 through February 23, 2015, Plaintiff saw several different providers at different health care facilities.[2] On December 21, 2014, Plaintiff sought care at the Moab Regional Hospital emergency department where she was diagnosed with pyelonephritis (a kidney infection).[3] She returned to the Moab Regional Hospital emergency department on December 26, 2014, and December 27, 2014.[4] On January 13 2015, Plaintiff was seen by Beth Holtby, a physician assistant at MFHC, with complaints of flank pain, nausea, and pain after urinating.[5] Patrick Mark Sherer, D.O., was the medical director and supervising physician of Ms. Holtby at the time.[6] On February 23, 2015, during a follow-up visit at MFHC, Plaintiff was in septic shock and told to go to the emergency room at Moab Regional Hospital.[7] She was airlifted to St. Mary's Medical Center in Grand Junction, Colorado where physicians diagnosed her with sepsis and discovered that she had a kidney stone.[8] Due to reduced blood flow to her extremities, Plaintiff's hands were amputated at the wrist and her feet were amputated mid-foot.[9]
Plaintiff submitted an administrative tort claim to the Department of Health and Human Services (“HHS”) related to the care she received at MFHC.[10] She stated that her “Basis of Claim” was the “[f]ailure to diagnose and appropriately treat [her] urinary tract infection [and] kidney stone. . . .”[11] The Basis of Claim listed the persons involved as “Elizabeth Lazier Hotlby, PA-C (‘Beth Holtby'); Patrick Mark Scherer D.O. (Medical Director of Moab Free Health Clinic and Supervising Physician of Physician Assistant, Beth Holtby) W.C.; S.M.; and A.O.”[12]HHS denied Plaintiff's claim on February 13, 2017.[13] Plaintiff timely requested reconsideration of HHS's denial of her claim and HHS did not respond to Plaintiff's request for reconsideration.[14] Plaintiff initiated this action when she filed her complaint on February 5, 2018. Plaintiff alleged that MFHC failed to provide the minimum standard of care, causing her to develop septicemia and ultimately resulting in the amputation of her limbs.[15] Among the various allegations of negligence and gross negligence, Plaintiff claimed that MFHC failed “to ensure adequate staffing and fail[ed] to oversee, train, supervise, and assure that the staff and employees were sufficiently experienced, trained, and provid[ed] treatment meeting the standard of care.”[16]Plaintiff further alleged that under the Federal Tort Claims Act (“FTCA”), the United States is responsible for all acts and omissions of Beth Holtby, Dr. Scherer, and other employees of MFCH.[17]
The MFHC is a free health clinic established in 2008 to help address the healthcare needs of the uninsured and underinsured population in Moab, Utah.[18] MFHC is primarily staffed by volunteer healthcare providers, and the clinic's ability to staff itself is limited by the availability of qualified healthcare providers in Moab.[19] The clinic has adopted policies and procedures regarding employee training and supervision but has not established specific methods or times for training and supervision.[20]
Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[21] A factual dispute is genuine when “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.”[22] In determining whether there is a genuine dispute as to material fact, the court should “view the factual record and draw all reasonable inferences therefrom most favorably to the nonmovant.”[23] The moving party “bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.”[24] If the movant meets this initial burden, the burden then shifts to the nonmovant to show that there is a genuine issue for trial.[25] To do so, the nonmovant must “go beyond the pleadings and ‘set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.”[26]
Plaintiff asserts that, among other things, MFHC failed to hire, train and supervise clinic personnel. The United States seeks partial summary judgment, arguing that these claims should be dismissed because the court lacks subject-matter jurisdiction for two reasons. First, because Plaintiff did not state these claims in the administrative claim that she presented to HHS prior to initiating this lawsuit and therefore she failed to exhaust her administrative remedies. Second, because MFHC's hiring, training, and supervising actions are discretionary functions that are exempted by the FTCA.
The FTCA “is a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment.”[27] This waiver of immunity “must be construed narrowly and the ‘limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.'”[28] The court examines the United States' claims in turn.
Under the FTCA, claimants must exhaust their administrative remedies by presenting their claim to the relevant federal agency before instituting an action against the United States.[29]This administrative-exhaustion requirement is “jurisdictional and cannot be waived.”[30] The purpose of this requirement is to allow agencies an opportunity to settle disputes before defending against litigation in courts.[31]
The administrative-exhaustion requirement is satisfied if a claimant presents to an agency “(1) a written statement describing the injury in sufficient detail to allow the agency to begin an investigation into the possibility of potentially tortious conduct, and (2) a request for a sum certain in damages.”[32] A claimant is not required to itemize every legal theory they might pursue, only to present facts and a demand for money-"the ‘claim' asserted ‘encompasses any cause of action fairly implicit in the facts.'”[33] In Lopez, the Tenth Circuit held that an administrative claim that described the basis for the claim as arising for medical malpractice in the cutting and removal of a nerve was insufficient to meet the administrative-exhaustion requirement to preserve a negligent credentialing and privileging claim against the hospital.[34] The court reasoned that a negligent credentialing and privileging claim not only requires proof of the negligent acts of a physician, but also requires proof that the hospital breached a legal duty by credentialing and privileging the physician.[35] There, the court found that “[n]othing in Lopez's administrative claim provided the government with notice that it needed to investigate whether the VA Hospital was negligent in credentialing and privileging [the physician], and it was in turn deprived of any opportunity to settle this potential claim without litigation.”[36]
In this case, Plaintiff's administrative claim filed with HHS describes the “Basis of Claim” as follows:
Failure to diagnose and appropriately treat Tonya Kim Blackburn's complicated urinary tract infection/13.6 mm kidney stone resulting in staphylococcus septicemia and quadruple amputation. Persons involved: Elizabeth Lazier Holtby, PA-C (“Beth Holtby”); Patrick Mark Scherer, D.O. (Medical Director of Moab Free Health Clinic and Supervising Physician of Physician Assistant Beth Holtby, W.C.; S.M.; and A.O. Place of Occurrence: Moab Free Health Clinic, 350 South 400 East, PO Box 788, Moab, Utah 84532.[37]
Beyond this statement, Plaintiff also submitted a detailed Notice of Claim letter that included extensive medical records and expert reports.[38]
The United States asserts that Plaintiff's administrative claim failed to give notice of her allegations of deficient hiring, training, and supervision, and consequently, HHS was deprived of the opportunity to evaluate and potentially settle Plaintiff's claims.[39] Plaintiff's “Basis of Claim” and supporting documents submitted with Plaintiff's administrative claim do not mention any facts regarding MFHC's hiring or training of clinic personnel. As a result, HHS received no indication that Plaintiff believed the allegedly negligent care she received at MFHC was related, at least in part, to MFHC's hiring and training practices. The first mention of MFHC's hiring and training appears in Plaintiff's Complaint.[40] The facts here are similar to Lopez nothing in the administrative claim provided notice to HHS that it needed to investigate whether MFHC was...
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