Durham v. United States
| Decision Date | 11 June 2021 |
| Docket Number | Civ. 20-1250 (NEB/BRT) |
| Parties | Hal Durham, Plaintiff, v. United States of America; Trumbull Memorial Hospital; Midmark Diagnostics Group; Dr. Larry Woods, D.O.; John R. Becker, M.D.; Holly Martinez, D.O.; and John and Jane Does #1-10, Defendants. |
| Court | U.S. District Court — District of Minnesota |
Hal Durham, pro se Plaintiff.
Kristen E. Rau, Esq., United States Attorney's Office counsel for United States.
Nicholas A. Rauch, Esq., and Shawn M. Raiter, Esq., Larson King LLP, and Brandon D. Wright, Esq., and Donald E. Burton Esq., Faruki PLL, counsel for Midmark Corp.
REPORT AND RECOMMENDATION
Plaintiff Hal Durham filed suit on May 26, 2020, with his “Federal Tort Complaint for Personal Injury and Medical Malpractice.” (Doc. No. 1, Compl.) In a three-week span in May or June 2016, Durham, a then-inmate at FCI-Elkton, [1] experienced two episodes of tunnel vision, one for thirty minutes and another for five minutes. (Id. at 2, 6.) Durham reported these two incidents to PA-C Elizabeth Choflet on June 7, 2016. (Id. at 6.) Choflet assessed diabetes as the cause. (Id.) Durham's radial pulse was 47 to 50 BPM when examined. (Id.) Choflet suggested that Durham needed a “cardiac workup to include an echo cardiogram and a Holter monitor stress test.” (Id.) Durham was to follow-up as needed. (Id.) Durham was seen by Dr. Kathy McNutt on June 20, 2016, but Durham asserts Dr. McNutt took no action on Choflet's suggestion. (Id.)
Durham's Complaint then indicates: “On June 27, 2016, finally reviewed the relevant information and noted that Plaintiff was exhibiting bradycardia (abnormally low heart rate) and recommended the need for a cardiac workup.” (Id.) Durham then states Dr. McNutt maintained a diabetes diagnoses and ordered a fecal blood test. (Id.) Durham asserts Dr. McNutt “failed to recognize bradycardia as an underlying symptom of a potentially fetal etiology.” (Id.) Durham was to follow-up as needed. (Id.) The grouping of this information presumably means that Dr. McNutt was the one that reviewed information on June 27.
On July 12, 2016, Durham was admitted to the cardiac care unit due to an apparent cerebral vascular accident in progress and worsening bradycardia. (Id. at 7.) Dr. John Dunlop ordered Durham's hospitalization because his heart rate was 40 BPM. (Id.) Durham was brought to Trumbull Memorial Hospital. (See Id. at 2-3.) Durham was monitored overnight, with Dr. Larry Woods noting that Durham's heart rate dropped into the 20s. (Id. at 7.) Dr. John Becker, a neurologist, consulted on Durham's case and believed Plaintiff was exhibiting a diagnosis of malingering with a secondary diagnosis of possible subcortical infarct on the left. (Id.) Durham was discharged back to prison on July 14, 2016, and reassessed by Dr. McNutt. (Id.) Durham asserts “[t]here was no order given to follow the Plaintiff's progress closely to keep watch on Plaintiff's heart rate, and no mention was made at that time regarding Plaintiff's bradycardia.” (Id.)
Dr. McNutt reassessed Durham on July 15, 2016, diagnosing him with hypertension. (Id. at 8.) Durham asserts he was “observed crawling on the floor . . . due to his claimed weakness as witnessed by C. McConnell, RN, who did nothing to assist the Plaintiff either physically or medically.” (Id.) Dr. McNutt assessed Durham again on July 18, with a “finding suggestive of hemiparesis, however her diagnosis noted as malingering.” (Id.) Dr. McNutt consulted with Dr. Holly Martinez and Dr. Becker on July 20, 2016, regarding the malingering diagnosis. (Id.) That same day, Durham was assessed by Nurse Practitioner Deborah Giaonne who provided a tentative diagnosis of hemiplegia with instructions to follow-up as needed. (Id.) On July 29, 2016, Dr. Becker, in consultation with Dr. Dunlop, made a diagnose of “somatoform disorder (faking it).” (Id.)
On August 10, 2016, Dr. Larry Woods reviewed the results of Holter monitor testing. (Id. at 6.) Dr. Woods' “notes were brief.” (Id.) He noted Durham's bradycardia, with his heart rate dropping to 20 BPM overnight, but he “did not suggest, direct or order any medications or plan for a workup to determine the underlying cause of the bradycardia.” (Id. at 7.) Durham asserts the low heartrate mixed with his tunnel vision and dizziness “should have set off alarms warning of a major transient ischemic attack, versus cerebral vascular accident in progress.” (Id.)
Durham was seen by Dr. Becker on March 17, 2017, for a six-month follow-up evaluation. (Id. at 8.) Durham asserts “there was again no mention of bradycardia” and no further orders were issued. (Id.) Shortly thereafter, Durham was transferred to FMC- Rochester on March 28, 2017. (Id.) Durham was reassessed by Dr. Charles Slater and Nurse Kathy Lubahn “with a litany of issues based on the records . . . from his prior location, ” but there was no mention of “Plaintiff's repeated bradycardia events.” (Id. at 9.) Durham asserts Dr. Slater and Lubahn never read his medical records otherwise they would have seen his documented bradycardia “that has been the underlying cause of all of [his] injuries and disabilities.” (Id.)
Durham asserts he repeatedly complained of symptoms directly resulting from repeated bradycardia events. (Id.) But, because of all his medical providers' failure to properly diagnose or treat his bradycardia, he became “permanently injured and handicapped.” (Id.) Thus, Durham asserts a medical malpractice claim against all the medical providers. (Id.)
After Defendant Trumbull Memorial Hospital and Defendant Midmark Corporation filed their Answers (Doc. Nos. 22, 25), Durham submitted an “Affidavit of Merit” from Dr. Steven A. Holper. (Doc. No. 34, Holper Aff.) Dr. Holper states he is “Board Certified in medical specialties including, but not limited to, Physical Medicine and Rehabilitation, ” pain management, and that he is a member of the American Society of Addiction Medicine. (Holper Aff. ¶ 1.) Dr. Holper says he (Id. ¶ 2.) Dr. Holper states Durham's “pain and symptomology are indicative of a life-long medical disability that will require continuous and regular treatments, ” from medical professionals skilled in both bradycardia and paralysis. (Id. ¶¶ 3, 4.) Dr. Holper opined that Durham's injuries are “excruciating and worsening, ” and that, if left untreated, Durham “will soon permanently lose the use of affected limbs with no possibility of physical rehabilitation.” (Holper Aff. ¶ 5.)
The United States moved to dismiss on March 29, 2021. (Doc. No. 48.) The Court set a briefing schedule on that motion, with Durham's response due April 28, 2021. (Doc. No. 55.) The Court reminded Durham of the deadline again on April 19, 2021. (Doc. No. 58 at 2 n.2.) Midmark Corporation moved for summary judgment on April 28, 2021. (Doc. No. 61.) The following day, the Court set a briefing schedule for that motion, with Durham's response due May 28, 2021. (Doc. No. 67.) Durham filed a document on June 7, 2021, entitled “Plaintiff's Motion to Make More Certain.” (Doc. No. 73) which this Court interprets as his opposition to Defendants' motions given the timing and because it seeks to explain his claim and medical injuries.[2]
“Federal courts are courts of limited jurisdiction and the ‘threshold requirement in every federal case is jurisdiction.'” Barclay Square Prop. v. Midwest Fed. Sav. and Loan Ass'n of Minneapolis, 893 F.2d 968, 969 (8th Cir. 1990) (quoting Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir. 1987)). Federal courts must dismiss a claim if it lacks subject-matter jurisdiction over the claim. Fed.R.Civ.P. 12(h)(3), 12(b)(1). When considering a facial attack on jurisdiction in a Rule 12(b)(1) motion, the court “merely needs to look and see if plaintiff has sufficiently alleged a basis of subject matter jurisdiction.” Branson Label, Inc. v. City of Branson, Mo., 793 F.3d 910, 914 (8th Cir. 2015) (quotation omitted). Under such an analysis, the court restricts itself to the pleadings and the non-moving party is afforded the same protections as those provided by a Rule 12(b)(6) motion. Id.
In deciding a Rule 12(b)(6) motion to dismiss, a court accepts as true all well-pleaded factual allegations and then determines “whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). “To survive a motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Sletten & Brettin Orthodontics v. Cont'l Cas. Co., 782 F.3d 931, 934 (8th Cir. 2015) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007)); accord Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015). Facial plausibility of a claim exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Although a sufficient complaint need not be detailed, it must contain “[f]actual allegations . . . enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted); see Id. (“The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion of a legally cognizable right of action.”) (quotations and citation omitted). Additionally, complaints are insufficient if they contain “naked assertions devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557) (internal...
To continue reading
Request your trial