Knox v. United States

• Decision Date: 01 June 2017
• Docket Number: C/A No. 0:17-cv-36-CMC
• Parties: Zekiya 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.
• Court: U.S. District Court — District of South Carolina

Zekiya Knox, Plaintiff, v. The United States of America;AMISUB of SC, INC., d/b/a PiedmontMedical Center; South Carolina EmergencyPhysicians; 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

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ROCK HILL DIVISION

June 1, 2017

Opinion and Order Denying Motion for Summary Judgment of Defendant United States

(ECF No. 56)

This matter is before the court on Plaintiff's complaint alleging medical malpractice against medical care providers, including providers at a federally funded community health care center, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq. ECF No. 1. Defendant United States of America ("United States") filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56, alleging the action is barred by the statute of limitations. ECF No. 56. Plaintiff filed a response in opposition on April 17, 2017. ECF No. 63. Defendant United States filed its response on April 24, 2017. ECF No. 65. For the reasons set forth below, the motion is denied.

COMPLAINT ALLEGATIONS

Plaintiff alleges injury after her 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. 45, Am. Compl. ¶ 37. Plaintiff originally presented to the Piedmont Medical Center Emergency Room ("Piedmont ER") (operated by Defendant Amisub of S.C., Inc.) on September 13, 2013, complaining of persistent abdominal pain. Id. at ¶ 9. She was seen by Defendant Dr. Warden, who performed a physical examination, lab testing, ultrasound of the lower abdomen, and CT scan. Id. at ¶¶ 9-11. No surgical consult was ordered, and Plaintiff was discharged with narcotic pain killers and an instruction to follow up with a gastroenterologist. Id. at ¶ 14. On September 19, 2013, Plaintiff had an appointment with Defendant Dr. Garrison, a gastroenterologist, who scheduled and conducted a colonoscopy on September 25, 2013. Id. at ¶¶ 15-16. Defendant Garrison sent Plaintiff to a surgeon, Defendant Espinal, the same day as her colonoscopy. Defendant Espinal ordered a CT scan, the results of which Plaintiff alleges she was never informed. Id. at ¶ 18. On September 26, 2013, Plaintiff went to see April Logan, a physician's assistant, at North Central Family Medical Center ("NCFMC"), a federally funded community health care center in Rock Hill, South Carolina. Ms. Logan ordered an ultrasound and referral to urology. Id. at 19.

Plaintiff was next seen by Ms. Logan on January 14, 2014, for abdominal pain. Id. at ¶ 24. Ms. Logan referred Plaintiff back to Defendant Espinal, who saw Plaintiff in February 2014. Plaintiff was prescribed prednisone at that appointment. 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 "noted tubular structures and encouraged a CT scan." Id. at ¶¶ 29, 30. Plaintiff was to follow up at NCFMC on April 14 for her ultrasound results, but due to pain she returned to the Piedmont ER by ambulance that day. Id. at ¶ 31. Defendant Warden prescribed antibiotics for a urinary tract infection. Id. at ¶ 34. Defendant Fleet ordered an additional antibiotic after a culture on April 18, 2014. Id. at ¶ 36.

On May 4, 2014, Plaintiff returned to the Piedmont ER for continuing abdominal pain and had a CT scan. 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. Having been untreated for a period of time, these led to sepsis and ultimately the amputation of three limbs. Id. at ¶ 39.

PROCEDURAL POSTURE

Defendant United States has filed its motion as one to dismiss or, in the alternative, for summary judgment, arguing Plaintiff filed her claim outside the two-year statute of limitations for FTCA actions. See 28 U.S.C. § 2401(b). Plaintiff's claim was filed with the appropriate agency on June 14, 2016, more than two years after the United States argues the statute accrued on May 4, 2014. As the court has considered documents attached to the motion and response that are not "integral to the complaint," it will consider this motion as one for summary judgment. See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

STANDARD

Summary judgment should be granted if "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). It is well established that summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987). The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and the court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

The Federal Tort Claims Act waives the sovereign immunity of the United States for civil actions in federal court for injuries "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1). "The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances . . ." 28 U.S.C. § 2674.

MEDICAL CHRONOLOGY

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

Admission to CMC

Plaintiff was admitted to CMC on May 6, 2014 as a transfer from Piedmont ER. ECF No. 65-1 at 1. 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." Id. 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 thispoint." Id. On May 17, 2014, a Surgery Attending Progress note stated Plaintiff was "progressing adequately." Id. at 21.

A progress note signed on May 21, 2014, notes she 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." Id. 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 5/5/2014," and noted she had sepsis with "MODS including stress induced cardiomyopathy, acute respiratory failure, vasodilatory shock, 4 limb ischemia, and non-oliguric AKI." The note ends "I think her AKI will continue to resolve." Id. at 12-13. A Surgery Red-Progress note the same day stated "18-year-old female admitted with Crohn's disease, presumed sepsis of unclear etiologies (bowel perforation vs endocarditis.") Id. at 19. The same day, Plaintiff's discharge plan was discussed with her interdisciplinary team and family. 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. at 29.

A pediatric PM&R consult on May 23 stated Plaintiff's history as follows:

Per report episode of pain began 5/2/14 Friday with nausea vomiting while under treatment for UTI. Patient arrived at Piedmont Medical Center (PMC) 5/4/14 with acute lower abdominal pain in setting of 2 year history of chronic abdominal pain and Crohn's disease. This admitted to ICU at PCM with hypotension, tachycardia,elevated lacate, presumed sepsis. Abdominal CT at PMC showed SBO with inflammation of the ileum. Acutely worsened that afternoon . . .taken emergently to operating room for ex-lap and findings included dilated ileum, fistula to the right pelvis and between loops of small bowel, plus bowel perforation.

Id. at 30. Surgeries are noted (in addition to the initial laparoscopy, ileocecectomy, and end ileostomy on May 5) on May 6, May 7, May 9, May 11, May 13, and May 17, mostly for reopening laparotomy and multiple abdominal washouts. The note also stated Plaintiff had "2 year history of chronic...