Knox v. United States, C/A No. 0:17-cv-36-CMC

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Decision Date29 June 2018
Docket NumberC/A No. 0:17-cv-36-CMC
PartiesZekiya Knox, Plaintiff, v. The United States of America; Amisub of SC, Inc., d/b/a Piedmont Medical Center; South Carolina Emergency Physicians; Jeffrey Warden, MD; Brian Fleet, PA; Piedmont General Surgery Associates, LLC; Alex Espinal, MD; Bret Garretson, MD; and Digestive Disease Associates, Defendants.

Zekiya Knox, Plaintiff,
The United States of America;
Amisub of SC, Inc., d/b/a Piedmont Medical Center;
South Carolina Emergency Physicians; Jeffrey Warden, MD;
Brian Fleet, PA; Piedmont General Surgery Associates,
LLC; Alex Espinal, MD; Bret Garretson, MD;
and Digestive Disease Associates, Defendants.

C/A No. 0:17-cv-36-CMC


June 29, 2018

Opinion and Order Denying Motion for Summary Judgment of Defendant United States
(ECF No. 123)

Through this action, Zekiya Knox ("Plaintiff") seeks recovery for alleged medical malpractice by a variety of medical providers involved in her care between September 2013 and May 2014.1 Plaintiff alleges these providers failed to properly and timely diagnose and treat her underlying condition, Crohn's disease, and that this failure led to the development of sepsis. Plaintiff further alleges various Defendants failed to properly treat her sepsis and that the collective

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errors led to Plaintiff's loss of three limbs. Plaintiff asserts a single claim for medical negligence against all Defendants, though the specifically alleged errors vary between Defendants. See ECF No. 88 (Second Amended Complaint).

The matter is before the court on motion of Defendant United States' for summary judgment based on the statute of limitations. ECF No. 123. The United States argues Plaintiff filed her tort claim with the applicable agency on June 14, 2016, more than two years after the statute of limitations allegedly accrued no later than June 6, 2014. ECF No. 123-1 at 8. Plaintiff filed a response in opposition, arguing her claim did not accrue in May or June of 2014 and her administrative claim was timely filed. ECF No. 133. Alternatively, she relies on equitable tolling. Finally, she argues the continuous treatment rule applies and the claim against the United States accrued only after her treatment at NCFMC ended. Id. at 17. The United States filed a reply. ECF No. 141.

For reasons set forth below, the court finds as a matter of law equitable tolling and the continuous treatment doctrine do not apply. Nonetheless, the motion is denied as there remains a genuine issue of material fact as to when Plaintiff knew or should have known of the cause of her injury. More specifically, the critical, unresolved issue is at what point Plaintiff knew, or in the exercise of due diligence, should have known, that undiagnosed and/or untreated Crohn's disease led to her bowel perforation, fistulas, and sepsis.


Plaintiff alleges injury after abdominal pain, which she alleges was never properly treated, developed into "significant damage to her intestines and caused a life threatening infection," sepsis. ECF No. 88, Sec. Am. Compl. ¶ 37. Plaintiff originally presented to the Piedmont

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Emergency Room ("Piedmont ER") on September 13, 2013, complaining of persistent abdominal pain. Id. at ¶ 9. She was seen by Defendant Dr. Warden, who performed a physical examination and ordered lab testing, ultrasound of the lower abdomen, and CT scan. Id. at ¶¶ 9-11. Plaintiff was discharged from the ER with narcotic pain killers and an instruction to follow up with a gastroenterologist. Id. at ¶ 14. On September 19, 2013, Plaintiff was seen by Defendant Dr. Garretson, a gastroenterologist, who scheduled and conducted a colonoscopy on September 25, 2013. Id. at ¶¶ 15-16. Dr. Garretson was unsure if his findings represented "appendicitis or IBD" (id. at ¶ 16), so he referred Plaintiff to a surgeon, Defendant Dr. Espinal, that same day. Id. at ¶ 17. Dr. Espinal ruled out acute abdominal process and ordered a CT scan, but Plaintiff alleges she was never informed of that appointment. Id. at ¶¶ 18, 18.1. The next day, September 26, Plaintiff went to see April Logan, a physician's assistant at NCFMC, a federally funded community health care center, complaining of abdominal pain. Id. at ¶ 19. Ms. Logan ordered an ultrasound, which was performed September 30, 2013 and showed "prominent bowel loops . . .with a somewhat thickened appearance." Id. at ¶¶ 19.1, 20. Ms. Logan took no action in response to this finding. Id. at ¶ 20.

Plaintiff was next seen by Ms. Logan on January 14, 2014, for abdominal pain. Id. at ¶ 24. Ms. Logan referred Plaintiff back to Dr. Espinal, who saw Plaintiff in February 2014.2 Plaintiff was prescribed prednisone at that appointment and "the records reflect there was to be an

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appointment scheduled with Dr. Garretson, [but] this was never made known to Ms. Knox." Id. at ¶ 26. On March 21, 2014, Plaintiff returned to NCFMC complaining of abdominal pain. Id. at ¶ 28. The physician she saw ordered another ultrasound, which was performed on April 4, 2014, and "noted tubular structures and encouraged a CT scan." Id. at ¶¶ 29, 30. Plaintiff was to follow up at NCFMC on April 14 for ultrasound results, but instead returned to the Piedmont ER by ambulance that day. Id. at ¶ 31. Tests and examination showed an elevated white count, lower quadrant pain, and "what was then believed to be bacteria in her urine." Id. at ¶ 32. Dr. Warden "remarked her presentation was similar to her presentation in September," and accessed those records, but the only treatment rendered was a prescription for an antibiotic for a urinary tract infection. Id. at ¶¶ 33-34. Defendant Fleet, a physician's assistant in the ER, ordered an additional antibiotic after reviewing results of a vaginal culture on April 18, 2014. Id. at ¶ 36.

On May 4, 2014, Plaintiff returned to the Piedmont ER. Id. at ¶ 37. She was diagnosed with "either an infected inflamed appendix or a flare up of IBD that was never properly discovered or treated." Id. She went into septic shock and ultimately lost three limbs. Id. at ¶ 39.


Various medical records were attached by the parties to the motion and responses. The records are from Plaintiff's May 2014 hospitalization at Carolinas Medical Center ("CMC") and later treatment at NCFMC.

Admission to CMC. Plaintiff was admitted to CMC on May 6, 2014 as a transfer from Piedmont. ECF No. 123-13 at 1. The discharge diagnoses from Piedmont were: "Crohn disease with exacerbation; small bowel perforation with multiple fistulas, status post exploratory laparotomy with partial resection of small bowel, fistula repair and ileostomy; acute respiratory

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failure; systemic inflammatory response due to infection with evolving multiorgan system failure; severe metabolic acidosis with lactic acidosis; septic shock; cardiogenic shock, echocardiogram noting severe reduced left ventricular function with estimated ejection fraction of 10%; anemia related to dilution primarily; hypoglycemia; hypocalemia." Id.

A History and Physical on admission to CMC notes she "has a history of chronic abdominal pain and has previously been evaluated by a surgeon for chronic abdominal pain and a history of Crohn's disease." ECF No. 123-14. Past Medical History is listed as "possible Crohn's disease." Id. The assessment/plan noted she was an "18-year-old female with history of possible Crohn's disease who presented in septic shock on multiple vasopressors him [sic] a status post midline laparotomy with ileocecectomy and end ileostomy formation." Id. at 4. She was taken to the operating room for emergency surgery "to explore the possibility of pelvic sepsis." Id.

On May 14, 2014, she was seen by an orthopedist who noted her history and diagnosis as "s/p SBO and perforation with peritonitis and sepsis requiring vasopressors and subsequent sever (sic) dry gangrene to bilateral feet and hands." ECF No. 65-1 at 28. A May 16, 2014 vascular consultation noted Plaintiff

is an unfortunate 19-year-old female who was transferred from an outside facility in septic shock and on 3 pressors. An ileocecectomy and ileostomy was performed in the outside facility however throughout that night she clinically deteriorated. An echocardiogram was performed at some point that showed she had an EF of less than 10%. She was then transferred here for further management. Since then she's had multiple abdominal surgeries. She remained in shock for several days. It was noticed at some point that she started to develop dry gangrene of her right fingers and toes. She recently has clinically improved to the point she is not on any pressors.

Id. at 23. An addendum stated Plaintiff was "too sick for any interventions. Her extermities (sic) are non viable and well beyond any recovery at this point. Care should be life over limb at this

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point." Id. On May 17, 2014, a Surgery Attending Progress note stated Plaintiff was "progressing adequately." Id. at 21.

On May 21, 2014, Plaintiff was "informed about her care" by the medical staff. ECF No. 123-16. She had previously been asking questions but her parents were preventing the medical team from speaking to Plaintiff about her care. Id. The same day, Plaintiff's discharge plan was discussed with her interdisciplinary team and family. ECF No. 123-17. The hospital note stated "Ortho explained anticipated amputation to all 4 extremities at various levels. Pt. asked appropriate questions. Timing of surgery is not yet determined." Id.

A progress note signed on May 21, 2014, notes Plaintiff was "seen in follow up peritonitis and C diff colitis in setting of Crohn. Events of family meeting reviewed from this AM. Pt made aware of her clinical situation." ECF No. 65-1 at 9. Under "Impression and Plan" are noted diagnoses of:

1. Polymicrobial sepsis and peritonitis with enterococcus, MRSA, Kleb, Citrobacter, Clostridium from bowel perforation s/p multiple washouts.
2. Question of right atrial thrombus with emboli to limbs vs vasoconstrictor ischemic . . .
3. C diff colitis. .
4. Renal insufficiency . . .
5. Limb gangrene . . .
6. Leukocytosis cont to improve.

Id. A nephrology progress note also dated May 21 noted under "Impression" Plaintiff had "Crohn's colitis s/p ileocecectomy and end ileostomy for small bowel perf at OSH on...

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