McClain v. United States

• Decision Date: 24 January 2014
• Docket Number: Case No. 3:12–00307.
• Court: U.S. District Court — Middle District of Tennessee
• Parties: Sharron P. McCLAIN, Plaintiff, v. UNITED STATES of America, Defendant.

996 F.Supp.2d 683

Sharron P. McCLAIN, Plaintiff,

v.UNITED STATES of America, Defendant.

Case No. 3:12–00307.

United States District Court,

M.D. Tennessee,

Nashville Division.

Jan. 24, 2014.

Christopher K. Thompson, Thompson Law Group, PLLC, Nashville, TN, Howard W. Wilson, Wilson & Bradley, Murfreesboro, TN, for Plaintiff.

Michael L. Roden, Office of the United States Attorney, Nashville, TN, for Defendant.

MEMORANDUM

WILLIAM J. HAYNES, JR., Chief Judge.

Plaintiff, Sharron P. McClain, filed this action under the Federal Tort Claims Act, 28 U.S.C. § 2674, against the Defendant United States. Plaintiff asserts claims for medical malpractice arising out of Plaintiff's bilateral breast reduction surgery on December 10, 2010 at the Veteran's Administration (“VA”) Hospital in Nashville. After Plaintiff's surgery and discharge, Plaintiff developed severe necrosis causing skin and breast damage that will require two or three reconstructive surgeries to correct.

Before the Court is the United States's motion for summary judgment (Docket Entry No. 17) contending in sum, that Plaintiff lacks expert proof that any act or omission of the VA's physicians who performed this surgery, was the proximate cause of Plaintiff's injuries. In essence, Plaintiff responds that her expert's qualifications, his review of the evidentiary record and the VA hospital records provide ample bases for his opinions that the VA surgeons' acts and omissions caused Plaintiff's injuries. In addition, Plaintiff cites material factual disputes based upon (1) Plaintiff's fitness for this surgery, (2) the contents of the VA's surgery report and the prolonged absence of the supervising surgeon and the parties' experts on the standard of care and the VA surgeons' performance.

For the reasons set forth below, the Court concludes that a hearing is necessary on the admissibility of Plaintiff's expert proof on whether the VA physician's lack of adequate treatment caused the excessive thinning of the tissue in the surgical area is admissible. The Court also concludes that Plaintiff's proof of the extended lack of supervision of the resident who closed the surgical area could support a judgment on Plaintiff's claim of negligence. The Court also concludes that material factual disputes exist on the contents of the surgery report for Plaintiff's surgery and on whether Plaintiff was a suitable candidate for this surgery.

A. Review of the Record¹

For the purposes of the Defendant's motion for summary judgment, the relevant facts are Plaintiff underwent a bilateral breast reduction surgery that is referred to as the Wise procedure, a common procedure for doctors, including the physicians in this controversy. (Docket Entry No. 20–1, Martin Deposition at 14, Exhibit 21). The surgery at the VA hospital in Nashville commenced at 11:57 on December 10, 2010 and was performed by Dr. John Summitt, the supervising surgeon and Dr. Navunjun Grewal, a resident intern at the VA hospital. (Docket Entry No. 19–4, 12/10/2010 Surgery Report). According to the operation report, Dr. Summitt was “present and scrubbed for the entire case”. Id. at 1, 2. Plaintiff's surgery lasted until 5:52 p.m. Id. at 1. After Plaintiff's discharge,Plaintiff began to experience pain and severe necrosis in the skin area around her breasts (Docket Entry No. 19–6, December 2010 Medical Records).

Dr. David Martin, Plaintiff's expert, was graduated from the Johns Hopkins Medical School, is board certified in reconstructive surgery and routinely performs breast reductions in the Nashville area. (Docket Entry No. 23–1, Dr. Martin Report and Declaration at 2–4, Exhibit 1). In addition, Dr. Martin previously practiced at the VA hospital in Nashville. Id. For his expert report, affidavit and deposition testimony, Dr. Martin reviewed the depositions of Drs. Grewal and Summitt who performed the initial breast reduction procedure as well as Plaintiff's medical records. Id. Dr. Martin notes that during Plaintiff's surgery, Dr. Summitt left the operating room for several hours, but VA operation report reflects that Dr. Summitt was present during the entire surgical procedure. Id. The VA operation report fails to reflect that Dr. Summitt, the supervising doctor left the surgical room for several hours. Id. According to the surgical nurse, Dr. Grewal experienced problems closing the surgical area that required summoning Dr. Summitt to return to the operating room. (Docket Entry No. 19–3, Vavra Deposition at 27–29). Nurse Vavra testified that Dr. Summitt left the operating room around 1:00 p.m. and that the surgery lasted until 5:42 p.m. Id. and Docket Entry No. 19–10 at 1. Neither Dr. Grewal nor Dr. Summitt noted the level of removal of the subcutaneous tissue in their operation report. (Docket Entry No. 18–9, Grewal Deposition at 29–30, Dr. Summitt Deposition at 44–45).

As to Plaintiff's necrosis of the skin in the area of her surgery, Drs. Martin, Grewal and Summitt agree that excessive thinning of Plaintiff's subcutaneous tissue can cause ischemia and necrosis. (Docket Entry No. 20–1, Dr. Martin Deposition at 53, Exhibit 21). These physicians also agree that if the level of subcutaneous tissue removal is appropriate, then Plaintiff would not otherwise have suffered an injury. Id. Dr. Grewal and Dr. Summitt agree that cutting the blood supply can cause the necrosis and resulting injury. (Docket Entry No. 18–9 Grewal Deposition at 29, 39; Docket Entry No. 18–10 Dr. Summitt Deposition at 42, Exhibits 8, 9). According to Dr. Martin, the applicable standard of care is not to thin the subcutaneous tissue of the female breast excessively or otherwise the excessive thinning causes an interruption of blood flow. (Docket Entry No. 20–1, Martin Deposition at 53; See also Docket Entry No. 18–9 Grewal Deposition at 29, 39 and Exhibits 8 and 21 thereto). Dr. Grewal and Dr. Summitt deny there was excessive thinning, but the operative report lacks information and detail on Plaintiff's skin condition.

Aside from the tissue thinning, Dr. Martin cites Dr. Summitt's prolonged absence from Plaintiff's surgery for several hours, as a deviation from the standard at VA hospital for the supervision of residents who are performing surgeries:

The standard of care in the community where I practice and where the Defendant is found is the same or similar. The standard of care is for an inexperienced resident (Dr. Grewal) to remain adequately supervised by the attending physician (Dr. Summitt) during the performance of the plaintiff's breast reduction surgery

... the Defendant fell below the standard of care by allowing Dr. Grewal, a resident physician, to remain unsupervised to close which during the closing additional thinning was required to effect closure but it was excessive. By the time Dr. Summitt returned to the operating room, the damage or injury had occurred beneath the surface of the skin, and would be concealed front view once the first deeper sutures were placed. Injuries of this magnitude beneath the surface were irreparable even if identified at the time of surgery or had they been recognized during the days or weeks that followed. The operative report indicates that Dr. Summitt was present during the operation at all times which he was not.

(Docket Entry No. 23–1 Dr. Martin Declaration and Report at 5–6).

The factual record reflects that for several hours after Dr. Summitt left the operating room, Dr. Grewal was left to close the opened areas and was “doing both sides simultaneously, one side, the other side.” (Docket Entry No. 18–9 Grewal Deposition at 77). Dr. Martin cites the attending surgical nurse's testimony that Dr. Grewal experienced difficulty closing the area of Plaintiff's surgery and this nurse had to call Dr. Summitt back to the operating room for this closure. (Docket Entry No. 23–1 Dr. Martin Declaration and Report at 7).

The parties' experts, Drs. Brian Tierney and Martin, disagree on whether the appropriate standard of care was violated. Dr. Tierney states that Plaintiff posed a higher risk of a bad outcome, (Docket Entry No. 20–3 Tierney Revised Report at 4), but Dr. Grewal deemed Plaintiff was a “good candidate” for this surgery. (Docket Entry No. 18–9, Grewal Deposition at 52). In his revised report, Dr. Tierney cites inter alia, the VA's medical records as demonstrating an adequate thickness, but the accuracy of operative report is disputed because Dr. Summitt departed the operating room for several hours and the report lists Dr. Summitt as present throughout the surgery. Dr. Martin also disagrees with Dr. Tierney on whether Dr. Grewal possessed the requisite experience to perform this surgery without supervision. (Docket Entry No. 20–1 Martin Deposition at 53, 58, 62–63, Exhibit 21 and Docket Entry No. 20–3, Tierney Report at 4–5).

B. Conclusions of Law

“The very reason of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Advisory Committee Notes on Rule 56, Federal Civil Judicial Procedure and Rules (West Ed.1989). Moreover, “district courts are widely acknowledged to possess the power to enter summary judgment sua sponte, so long as the opposing party was on notice that she had to come forward with all of her evidence.” Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Accord, Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).

In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the United States Supreme Court explained the nature of a motion for summary judgment:

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment ‘shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment...