Murillo v. United States, No. 17-cv-1279

• Court: United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
• Writing for the Court: Franklin U. Valderrama, United States District Judge
• Citation: 504 F.Supp.3d 875
• Docket Number: No. 17-cv-1279
• Decision Date: 01 December 2020
• Parties: Mindy MURILLO, as independent administrator of the Estate of Thomas M. Young, deceased, Plaintiff, v. UNITED STATES of America, Defendant.

504 F.Supp.3d 875

Mindy MURILLO, as independent administrator of the Estate of Thomas M. Young, deceased, Plaintiff,
v.
UNITED STATES of America, Defendant.

No. 17-cv-1279

United States District Court, N.D. Illinois, Eastern Division.

Signed December 1, 2020

504 F.Supp.3d 878

J. Wesley Mitchell, Kenneth A. Hoffman, Mitchell, Hoffman & Wolf, LLC, Chicago, IL, for Plaintiff.

Kurt N. Lindland, AUSA, United States Attorney's Office, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

Franklin U. Valderrama, United States District Judge

Thomas Young (Young) was a veteran who was honorably discharged from the Army following two tours of duty in Iraq. Tragically, Young, several years after returning home, took his own life. Mindy Murillo (Plaintiff), Young's spouse and the Independent Administrator of the Estate of Young, filed this wrongful death action against the United States of America (Defendant) pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. R. 1, Compl.¹ Plaintiff alleges that the Department of Veterans Affairs (the VA) and its employees were negligent by failing to prevent Young's suicide.

Before the Court is Defendant's Motion for Summary Judgment. R. 40, Def.’s MSJ. For the reasons set forth below, Defendant's Motion for Summary Judgment is granted.

Background²

The following undisputed facts are set forth as favorably to Plaintiff, the non-movant, as the record and Local Rule 56.1 permit. Hanners v. Trent , 674 F.3d 683, 691 (7th Cir. 2012). On summary judgment, the Court assumes the truth of those facts, but does not vouch for them. Arroyo v. Volvo Grp. N. Am., LLC , 805 F.3d 278, 281 (7th Cir. 2015).

Young entered the Army around January of 2003, when he was 18 years old. R. 44, Pl.’s Resp. DSOF ¶ 2; R. 46, Def.’s Resp. PSOF ¶ 1.³ He was deployed twice to combat zones in Iraq and was honorably discharged on January 24, 2007. Def.’s Resp. PSOF ¶ 1. In April of 2008, Young obtained anger management counseling at the Hines Veterans Affairs Medical Center (Hines VA). Pl.’s Resp. DSOF ¶ 3. In May of 2008, Young was seen for further evaluation by a mental health professional and was assessed to be a low risk for suicide. Id. Following this, Young did not receive any further treatment or care from the Hines VA until July of 2014. Id. ¶ 4.

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In July of 2014, Young presented at the emergency room of the Hines VA, seeking treatment for alcohol abuse. Pl.’s Resp. DSOF ¶¶ 4–5. He denied having thoughts of harming himself or others at that time. Id. Young was diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood. Young left the emergency room before full discharge instructions could be given, and he did not show up for his follow up appointments on July 7, 2014 and July 16, 2014. Id. ¶ 6. On August 11, 2014, the Hines VA made a follow-up call to Young but his number was not working, and the Hines VA staff were unable to reach him. Id. ¶ 7. The author of the note for August 11, 2014 stated in the note that the consult for Young would discontinue. Id. ¶ 8.

In June of 2015, Young went to the Holy Family Medical Center (Holy Family) for help with his drinking. Pl.’s Resp. DSOF ¶ 9. Holy Family determined that Young needed to go to Lutheran General Hospital (Lutheran General) for a psychiatric admission. Id. On June 30, 2015, Young was admitted to Lutheran General for assessment of his alcohol abuse, depression, and suicidal ideation. Id. ¶ 10. At Lutheran General, according to Nancy Young, Young's mother, Young reported hearing voices and had nightmares. Id. ¶ 9. Young told Nancy Young that he had had thoughts of hurting himself and had been to the railroad tracks. Id.

On July 2, 2015, Young was transferred to Lutheran General's psychiatric unit. Pl.’s Resp. DSOF ¶ 11. According to Lutheran General medical records, a prior note indicated that Young had been intoxicated with alcohol and went to lay down on the train tracks waiting for a train to come and kill him. Id. Other notes indicated that Young later stated that he was asleep on the tracks and had not wanted to kill himself. Id. The medical records also noted that Young had a history of depression, anxiety, cocaine abuse, alcohol abuse, and polysubstance abuse. Id. He was transferred to the psychiatric unit after being cleared for outlying medical conditions. Id.

A day later, on July 3, 2015, Young left Lutheran General "against medical advice." (AMA) Pl.’s Resp. DSOF ¶ 12. Dr. Levin, a psychiatrist at Lutheran General, treated Young. Id. Dr. Levin noted that Young denied any suicidal or homicidal ideations, and had been compliant with treatment. Id. He also reported that Young had a follow-up appointment at the Hines VA on July 4, 2015, and that Young had a phone interview with "Gateway" the next day for further treatment. Id. Dr. Levin also noted that Young's mother had no safety concerns about his leaving Lutheran General, and that Young's wife, Plaintiff, was also contacted and indicated she preferred Young to be discharged to home. Id. Plaintiff denied safety concerns, stating that she could monitor Young as well from home. Id. While Dr. Levin thought Young should stay longer in the hospital, he also determined that Young did not meet the criteria for involuntary commitment, and, therefore, discharged Young AMA. Id.

On July 9, 2015, at 11:36 a.m., Nancy Young called the Jesse Brown Veterans Affairs Medical Center (Jesse Brown) on Young's behalf. Pl.’s Resp. DSOF ¶ 14; Def.’s Resp. PSOF ¶ 5. Nancy Young placed this call from her home phone. Def.’s Resp. PSOF ¶ 5. After dialing the phone number and handing Young the phone, Nancy Young left the room. Pl.’s Resp. DSOF ¶ 14. Valerie Creedon (Creedon), the Program Manager for the Operation Enduring Freedom / Operation Iraqi Freedom Clinic at Jesse Brown (the OEF/OIF Clinic), answered the phone call. Id. The OEF/OIF Clinic provides primary care, mental health care, and social

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work services. Def.’s Resp. PSOF ¶ 6. It employs two primary care physicians, a psychiatrist, two psychologists, a nurse practitioner, and three social work case managers. Id.

During this call, Young discussed, among other things, opening a "service connection" with Jesse Brown. Pl.’s Resp. DSOF ¶ 17. "Service connection" refers to a process through which a veteran can seek benefits from the VA relating to a claim for an injury, illness, or condition that is service related. Id. ¶ 18. Young also indicated to Creedon that he was seeking help with his drinking and PTSD, and that he had prior negative experiences at the Hines VA. Id. ¶ 20. Prior to this call, Young's medical chart with the VA did not indicate a clinical diagnosis of PTSD. Id. ¶ 17. The call lasted approximately ten minutes. Id. ¶ 20. Creedon testified that if she had concerns about Young taking his life during the call, she would have referred him to the suicide prevention team. Id. ¶ 32. Additionally, according to Creedon, if Young wanted urgent mental health services immediately, she would have had him come into Jesse Brown that day. Id. Creedon testified that she told Young that Mark Galban (Galban), a social worker in the OEF/OIF Clinic, would call him; gave Galban's direct number to Young; and told Young he could call her back. Id. ¶¶ 34, 38. Creedon informed Young that walk-ins were available and that appointments could be made. Id. ¶ 34. According to Creedon, Young sounded alert, oriented, and coherent, and had normal cadence in his speech. Id. ¶ 35.

Creedon could not document this phone call in the Jesse Brown medical records system because there was no chart for Young in the system at the time of the call, as Young was not a patient at the time. Pl.’s Resp. DSOF ¶ 37. Creedon offered to have Young's records "pulled through" so that Galban could then document his interactions with Young when Galban called Young back. Id. Young would not have to meet with a case manager such as Galban to set up a service connection. Def.’s Resp. PSOF ¶ 11.

At 11:51 a.m. on the morning of July 9, Creedon sent an email to staff, instructing her Outreach Enrollment Scheduling team to help bring Young into the Jesse Brown system. Pl.’s Resp. DSOF ¶ 38; R. 42-10. She assigned Galban as the case manager to outreach "once [Young] is in the system to assess for Care Management needs." Id.

On the same day, in response to an email from Galban, Creedon stated as follows: "I told him you would be reaching out to him to set up an appointment so he would know what you wanted him to bring with when you met (ie for SC). ... I think this may be a guy who would be happy to let us, let him, slip through the cracks, please don't let that happen. He needs help, thanks." Pl.’s Resp. DSOF ¶ 44; R. 42-10. Creedon used the phrase "slip through the cracks" because she had a gut feeling, and experiences with other veterans that they miss appointments or avoid phone calls from the VA. Pl.’s Resp. DSOF ¶ 44. She further stated that then people fault the VA when they do not get care, and she wanted to be sure that Young really was "good to go," as he stated. Id.

Later that day, Galban and Creedon met, and during this meeting, Creedon told Galban that Young needed help with service connection, Young was already connected with mental health...