Foley v. United States

• Decision Date: 22 March 2018
• Docket Number: 15-CV-6241L
• Citation: 294 F.Supp.3d 83
• Parties: Margaret J. FOLEY, Plaintiff, v. UNITED STATES of America, Defendants.
• Court: U.S. District Court — Western District of New York

294 F.Supp.3d 83

Margaret J. FOLEY, Plaintiff,

v.UNITED STATES of America, Defendants.

15-CV-6241L

United States District Court, W.D. New York.

Signed March 22, 2018

Margaret J. Foley, Canandaigua, NY, pro se.

Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, for Defendants.

DECISION AND ORDER

DAVID G. LARIMER, United States District Judge

PRELIMINARY STATEMENT

On April 24, 2015, plaintiff Margaret J. Foley ("Plaintiff" or "Foley"), as the Administratrix of the Estate of John J. Foley, III ("decedent"), commenced this medical malpractice action pro se¹ against the United States of America (the "Government") and the Department of Veterans Affairs pursuant to the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq. , and 28 U.S.C. § 1346(b). (Dkt. # 1). Foley filed an Amended Complaint on June 7, 2016, against the Government, solely on behalf of herself. (Dkt. # 25). She alleges claims for negligence, medical malpractice, wrongful death, and vicarious liability and seeks damages for her expenses and pain and suffering caused by her husband’s death. (Id. ).

Now pending are three motions. The first is the Government’s motion for summary judgment. (Dkt # 37). In response, Foley cross-moved to amend her Amended Complaint. (Dkt # 39). She also submitted an additional letter from her expert witness, which the Government has moved to strike. (Dkt # 49). All three motions are opposed. For the following reasons, the Government’s motions for summary judgment and to strike are granted, and Foley’s cross-motion to amend is denied. Thus, Foley’s Amended Complaint is dismissed with prejudice.

FACTUAL BACKGROUND²

A. Overview

Decedent died on February 4, 2011, at the age of 64, while a patient at Frederick Ferris Thompson Hospital ("FF Thompson") in Canandaigua, New York. (Dkt. # 37-4 at 4).³ The immediate cause of death was septic shock

due to toxic megacolon and [Clostridium difficile] colitis. (Id. ). Another significant condition contributing to decedent’s death, but not related to septic shock, was his chronic obstructive pulmonary disease ("COPD"). (Id. ). The thrust of Foley’s allegations is that Megan Walters, M.D. ("Dr. Walters"),⁴ a doctor employed at all relevant times by the Veterans Administration Medical Center (the "VA") in Canandaigua, New York, committed malpractice by failing to timely recognize and treat decedent’s alleged symptoms of Clostridium difficile infection

. (Dkt. ## 25 at ¶ 32; 40 at 15). However, as will be demonstrated below, Foley’s claimed malpractice is a bit of a moving target, on account of the changing, inconsistent, and speculative opinions of her so-called expert.

B. Clostridium Difficile ⁵

Clostridium difficile ("C. diff.") is a disease causing bacterium found in human feces. STEDMANS MEDICAL DICTIONARY 182620, Westlaw (database updated November 2014). C. diff. infection is a common cause of colitis—inflammation of the colon—and diarrhea, see id. , and can be caused by the use of antibiotics, advanced age, and hospitalization, (Dkt. # 40-3 at 5). "The most common clinical presentation of [C. diff. infection] is diarrhea associated with a history of antibiotic use." (Id. at 6).

C. Decedent’s Treatment at the VA from December 2, 2010, to December 7, 2010

Decedent was admitted to the VA from Highland Hospital, in nearby Rochester, New York, on December 2, 2010, for rehabilitation related to a recent hip fracture. (Dkt. # 37-4 at 25). None of decedent’s medical records from Highland Hospital has been submitted. Upon admission to the VA, Dr. Walters indicated that decedent was "well known to staff and this provider from prior rehab stays[.]" (Id. ). Dr. Walters also noted decedent’s extensive medical history, which included, among several other things, COPD, ongoing tobacco use, and history of traumatic brain injury

, leading to cognitive disorder not otherwise specified. (Id. ). At that time, decedent was "[m]oving bowels about every other day." (Id. at 27).

D. Decedent’s Treatment at FF Thompson from December 7, 2010, to December 21, 2010

On December 7, 2010, decedent was transferred to the emergency department at FF Thompson because he became confused with hallucinations and more overtly short of breath. (Dkt. # 37-4 at 33). Upon admission, he was started on antibiotics "for suspicion of healthcare facility acquired pneumonia

." (Id. ). This treatment improved decedent’s condition, and he was discharged on December 21, 2010. (Id. at 36-37).

E. Decedent’s Treatment at the VA from December 21, 2010, to January 27, 2011

Decedent returned to the VA on December 21, 2010. (Id. at 40). On December 27, 2010, decedent reported that he had been in "pain all weekend, and ha[d] ‘withdrawal symptoms’ of loose stools and shakiness." (Id. at 42). Dr. Walters made notes addressing treatment for decedent’s pain and shakiness, but not for decedent’s loose stools. (Id. ).

Dr. Walters saw decedent again on January 5, 2011. (Dkt. # 40-2 at 4). At that time, decedent’s main concerns were "exacerbation of chronic pain, shakiness, and [shortness of breath]," and he also felt that he was "in withdrawal from pain med[ications] as he has had some loose stools." (Id. ). Dr. Walters noted that he "likely would not be experiencing withdrawal" symptoms. (Id. ). This is the last medical note from the VA regarding decedent experiencing diarrhea. In fact, on January 15, 2011, Nurse Beverly Davis noted that decedent continued to complain of constipation. (Dkt. # 37-4 at 53).

The vast majority of decedent’s remaining medical records from the VA relate to his respiratory issues, chronic pain, and lower extremity edema,⁶ all of which Dr. Walters and nursing staff continued to monitor and note in decedent’s medical file. (See , e.g. , Dkt. # 40-2 at 7-11). Dr. Walters treated decedent’s respiratory issues as bronchitis

with inhalers and antibiotics, and noted that despite his breathing issues, he continued to smoke cigarettes and wheel himself around the VA in his wheelchair "without getting too [short of breath]." (Id. at 8). On January 14, 2011, Dr. Walters made a note that it was "[u]nclear at this time whether [decedent] will be able to be managed [at the VA]," but it is not clear from a review of that note why she said that. (Id. ). On January 10, 2011, she also noted that she should "[c]onsider palliative care consult—[decedent] has twice now expressed to me (today and last week) that he is thinking of his own mortality after most recent hospitalization." (Id. at 11).

On January 27, 2011, Dr. Walters examined decedent for increased difficulty in breathing and increased confusion, and she decided to transfer decedent to FF Thompson’s emergency department for "eval[uation] of hypoxia

and resp[iratory] distress, [and return of] pneumonia." (Dkt. # 40-2 at 40-41).

F. Decedent’s Treatment at FF Thompson from January 27, 2011, to February 4, 2011

Decedent’s chief complaint on admission to FF Thompson was respiratory failure. (Dkt. # 37-4 at 59). Within the first two days of decedent’s admission, at least two doctors examined him—Dr. David E. Baum and Dr. Henry Castro Maglente. Dr. Baum indicated that decedent had experienced "COPD exacerbation requiring ventilatory assistance," and noted "bacterial bronchitis

." (Id. at 64). Dr. Maglente noted that decedent exhibited "some faint wheezing," and had "normoactive bowel sounds." (Id. at 60). Dr. Maglente’s "Assessment and Plan" for decedent focused on treating decedent’s respiratory issues, namely COPD and pneumonia, and decedent’s chronic pain issues. (Id. at 60-62).

On February 1, 2011, a third doctor, Dr. Ravi Agarwala, noted improvement in decedent’s breathing issues, but also that he had experienced "3 watery [bowel movements on January 31, 2011]," (id. at 68), which Dr. Agarwala attributed to "nosocomial diarrhea secondary to C difficile," (id. at 80).⁷ Decedent experienced further loose watery bowel movements on February 1, February 2, and February 3, 2011, and began to lose his appetite due to abdominal cramps and abdominal pain. (Id. at 72, 74, 76, 80, 82).

On February 3, 2011, Dr. Thomas Wormer opined that "there [was] certainly concern for toxic megacolon

," which was likely "all related to [decedent’s] C. diff. colitis

," and recommended that decedent undergo a colonoscopic decompression. (Dkt. # 40-3 at 33). Dr. Raymond Thomas performed the colonoscopy on February 3, 2011. (Dkt. # 40-2 at 44). Dr. Thomas indicated that decedent had "[s]evere C. diff. infection and probable toxic megacolon.... He also [was] in respiratory distress as a result of his C. diff infection and respiratory status." (Id. ). Dr. Thomas opined that decedent had "[s]evere pseudomembranous colitis with decompression of the dilated colon." (Id. ).⁸ Afterwards, decedent’s condition continued to worsen and he developed "overt septic shock with hypotension." (Dkt. # 37-4 at 91-92).

DISCUSSION

I. The Government’s Motion for Summary Judgment

a. Legal Standard for Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure requires summary judgment if the moving party establishes "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). A fact is material if it "might affect the outcome of the suit under the governing law[.]" Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The moving party bears the burden of demonstrating the absence of any genuine issue of material fact, a burden met by showing that the nonmoving party has "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trail." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

If the moving party meets its burden, the opposing party survives summary...