Buchanan v. United States

• Decision Date: 25 March 2022
• Docket Number: Civil Action 3:19-CV-572-CHB
• Parties: AT LOUISVILLE APRIL E. BUCHANAN, et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — Western District of Kentucky

AT LOUISVILLE APRIL E. BUCHANAN, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

Civil Action No. 3:19-CV-572-CHB

United States District Court, W.D. Kentucky

March 25, 2022

MEMORANDUM OPINION AND ORDER

CLARIA HORN BOOM, UNITED STATES DISTRICT COURT JUDGE

This matter is before the Court on Defendant's Motion for Summary Judgment. [R. 37]. Plaintiffs responded, [R. 40], and Defendant replied, [R. 41]. This matter is now ripe for consideration. For the reasons below, the Motion will be granted in part and denied in part.

I. BACKGROUND

This action arises from Nelson Turner's tragic fall while a patient at Robley Rex Veterans' Affairs Medical Center (“VAMC”) in Louisville, Kentucky, and his subsequent death. [R. 1, pp. 2-3, ¶¶ 4-5]. April Buchanan, Turner's stepdaughter and the Executrix of his estate, and Patricia Steiner, Turner's widow, timely filed their Complaint on August 12, 2019. Id. at 1- 6; see also 28 U.S.C. § 2401(b). Plaintiffs claim that VAMC staff and administration negligently failed to properly attend to Turner before and after his fatal fall. Id. at 4-5, ¶ 12.

Before filing their claims in this Court, Plaintiffs exhausted their administrative remedies within the Department of Veterans Affairs. See Lundstrum v. Lyng, 954 F.2d 1142, 1145 (6th Cir. 1991) (“A prerequisite to suit under the FTCA . . . is the exhaustion by the plaintiff of administrative remedies.”) (citing 28 U.S.C. § 2675(a)). Plaintiffs filed a Notice of Claim and Standard Form 95, which Defendant received on January 14, 2019. [R. 1, p. 2, ¶ 4; R. 10-1].

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Defendant failed to act on that claim within six months. [R. 1, p. 2, ¶ 4]. Thus, Plaintiffs properly exhausted administrative remedies before filing suit.

Turner suffered from Parkinson's disease with associated dementia. [R. 1, p. 3, ¶ 5; R. 40-1, p. 1]. Turner's family brought him to the VAMC on July 31, 2018, due to worsening Parkinson's symptoms. [R. 40-1, p. 1]. After his initial diagnostic exam, nurses determined that Turner was at high risk for falls and outlined a care plan to address this risk. [R. 40-2, p. 7]. Turner walked with the assistance of a cane for balance. [R. 40-1, p. 1]. Based on his fall-risk designation and concerns with his mental state, his care instructions included the use of a wandering monitoring device (“wander guard”), a “request [for] assistance for daily activities, ” “assist with mobility, ” and hourly observations. Id. at 7-8; see also [R. 40-2, p. 8].

Witnesses provide different narratives of Turner's fall, and there is no video surveillance footage available of the actual fall. [R. 40, pp. 3-14; R. 40-1, p. 4]. On August 4, 2018, Turner left his room and began to wander around his unit (Five North). [R. 40-1, p. 2]. Nurse Dawn McNew was aware of Turner's movements and was attempting to contact Turner's wife when he quickly advanced down the hall. [R. 40-7, p. 3, 46:3-48:25]. Nurse McNew ran after Turner while yelling his name. [R. 40-8, pp. 9-10, 51:16-53:25; R. 40-7, p. 4, 49:13-50:14]. Although a wander guard should have alerted additional staff when Turner passed the nursing station, the alarm did not sound. [R. 40- 8, p. 7, 38:22-23]. However, Nurse Jeremy Wright testified that the wander guard alarm did sound at the far end of the unit. Id. Wright heard that alarm, along with McNew's yells for help, and began to assist McNew in redirecting Turner. Id. at 38, 53. Kathy Neace, a nurses' aide, also heard McNew's calls for help and observed the resulting events. [R. 40-7, p. 5, 53:23-54:8; R. 40-9, p. 2, 30:13-32:20]. Nurses Wright and McNew tried to escort Turner back to his room, while walking near him. [R. 40-8, p. 13, 68:4-25]. As they walked

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back to Turner's assigned area, Turner raised his cane and hit McNew with it. [R. 40-1, p. 3]. Turner then lost his balance and fell forward, striking his head on a door jam, and landing face first onto the cement floor. Id. Immediately after Turner's fall, Neace told police that McNew and Wright grabbed Turner's arms while trying to direct him back to his room. [R. 40-3, p. 7]. She further told police that McNew tried to take Turner's cane away from him, and he fell as a result of McNew's attempt to take the cane. Id. McNew and Wright deny or do not recall holding Turner or grabbing for his cane. [R. 40-7, pp. 10-11, 74:11-75:22; R. 40-8, p. 13, 68:4-7]. The fall caused blunt force head trauma and resulted in Turner's death on August 12, 2018. [R. 40- 14].

Plaintiffs' Complaint makes ten (10) allegations that Defendant and its agents were “negligent, grossly negligent, and/or acted with reckless disregard” by:

a. Choosing not to adequately and competently assess Mr Turner

b. Choosing not to provide a safe and secure environment;

c. Choosing not to adequately and competently document Mr. Turner's condition;

d. Placing Mr. Turner in imminent danger of serious harm and death by choosing not to provide him with a working monitoring device;

e. Failing to treat him with appropriate medication after the fall;

f. Choosing not to take steps to protect Mr. Turner;

g. Choosing not to provide sufficient staffing of personnel to provide care and treatment;

h. Choosing not to properly train and monitor the personnel who provided care for Mr. Turner and other similarly situated residents;

i. Choosing not to provide appropriate assessment and intervention of falls;

j. Choosing not to ensure that Mr. Turner had effective supervision to prevent a fall[.]

[R. 1, pp. 4-5, ¶ 12(a)-(j)]. Plaintiffs seek damages recoverable for “wrongful death, pain and suffering, medical expenses, and loss of consortium.” Id. at 5, ¶ 2.

Plaintiffs initially misunderstood the requirements for expert disclosures, but eventually tendered a written report by Mary Alice Momeyer. [R. 30; R. 40-1, pp. 1-4]. Momeyer is a clinical assistant professor of nursing at Ohio State University. [R. 40-15, p. 1]. In her four-page report, Momeyer describes the facts of the case and denotes actions she believes deviated from

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the standard of care. [R. 40-1, pp. 2-4]. She concluded that deviations in the standard of care by the VAMC and its staff caused Turner's fall and death. Id. at 4. In addition to Momeyer, Plaintiffs state that they plan to question (1) the VAMC staff that attended to Turner during the relevant events, and (2) Dr. Falls, the medical examiner who performed the autopsy on Turner, but they state that those witnesses will only provide factual testimony. [R. 40-12, pp. 1-3]. The Plaintiffs' deadline for expert disclosures was September 3, 2020, [R. 18, p. 2, ¶ 1(e)], and Plaintiffs have stated that they do not intend to introduce any additional experts, [R. 35].

Defendant filed a Motion for Summary Judgment on March 15, 2021. [R. 37]. Defendant argues Plaintiffs' claims sound purely in medical malpractice. [R. 37, p. 1]. Because Plaintiffs have failed to provide sufficient expert testimony on the standard of care, breach, and causation, Defendant contends the claims fail as a matter of law. Id. at 11-24. In support, Defendant also attached written reports from its own experts, Dr. Julian E. Bailes and Dr. Kiffany J. Peggs. [R. 37-3, pp. 1-3; R. 37-5, pp. 1-11]. Plaintiffs responded on April 12, 2021, [R. 40], contending that their expert supplied adequate testimony to support their medical malpractice claims and recasting some of the claims as involving “understaffing, corporate neglect, elder abuse and neglect” and “perhaps corporate deceit.” [R. 40, pp. 1-2, 17-22]. Defendant replied. [R. 41].

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 mandates the entry of summary judgment when “the movant shows that 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 fact is “material” only if it could affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine” dispute exists if the evidence would allow a reasonable jury to return a verdict for the non-

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movant. Id. A court must view the evidence and draw all reasonable inferences in the light most favorable to the non-movant. Abu-Joudeh v. Schneider, 954 F.3d 842, 849 (6th Cir. 2020) (citing Anderson, 477 U.S. at 255). The function of the court on a motion for summary judgment is not to weigh evidence or determine the truth of the matter, but rather, to decide if there is a genuine issue for trial. Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir. 2008).

The movant bears the initial burden of pointing to deficiencies in the non-movant's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The movant need not supply evidence negating the opponent's claims; identifying a lack of evidence from the non-movant is enough. Id. at 323. If the movant meets this burden, the non-movant must produce specific facts upon which a reasonable juror could find a genuine dispute of material fact. Matushita Elec. Indus. Co. v. Zenith Radio Corp., 47 U.S. 574, 586-87 (1986). “The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252.

III. ANALYSIS

Plaintiffs brought this case under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80. [R. 1, p. 1, ¶ 1]. The FTCA provides a limited waiver of sovereign immunity, allowing private individuals to bring suit against the federal government for certain torts. 28 U.S.C. §§ 2674, 2680. Specifically, [t]he FTCA waives sovereign immunity where state law would impose liability against a private individual[.]” Milligan v. United States, 670 F.3d 686, 692 (6th Cir. 2012); see also Glarner v. United States, 30 F.3d 697, 700 (6th Cir. 1994) (“When a veteran is injured at a medical center operated by the United States...