Shumaker v. US

• Decision Date: 15 July 1988
• Docket Number: C-85-995-G.,Civ. No. C-85-932-G
• Citation: 714 F. Supp. 154
• Parties: Jessica SHUMAKER, by her guardian ad litem, Jesse Shumaker; Jesse Shumaker; and Donna Shumaker, Plaintiffs, v. UNITED STATES of America, Defendant. Jessica SHUMAKER, by her guardian ad litem, Jesse Shumaker; Jesse Shumaker; and Donna Shumaker, Plaintiffs, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, and Dr. David Johnson, Defendant, and Caswell Family Medical Center, Inc., Defendant and Third-Party Defendant.
• Court: U.S. District Court — Middle District of North Carolina

714 F. Supp. 154

Jessica SHUMAKER, by her guardian ad litem, Jesse Shumaker; Jesse Shumaker; and Donna Shumaker, Plaintiffs, v. UNITED STATES of America, Defendant.

Jessica SHUMAKER, by her guardian ad litem, Jesse Shumaker; Jesse Shumaker; and Donna Shumaker, Plaintiffs, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, and Dr. David Johnson, Defendant,

and

Caswell Family Medical Center, Inc., Defendant and Third-Party Defendant.

Civ. Nos. C-85-932-G, C-85-995-G.

United States District Court, M.D. North Carolina, Greensboro Division.

July 15, 1988.

Jon Berkelhammer, Bynum M. Hunter and Alan W. Duncan, Greensboro, N.C., and Jess Moore, Reidsville, N.C., for plaintiffs.

Robert H. Edmonds, J., U.S. Atty., J. Reed Johnston, Jr., Frederick K. Sharpless, Joseph E. Elrod, III, Greensboro, N.C., and Michael R. Mitwol, Wilmington, N.C., for

defendants and defendant and third-party defendant.

MEMORANDUM OPINION

BULLOCK, District Judge.

This matter comes before the court on the various Defendants' motions for summary judgment and the Defendant United States of America's motion for judgment on the pleadings. The action arises from alleged medical malpractice by two doctors, Gahear F. Hamlor and David W. Johnson, in failing to refer Jessica Shumaker to an ophthalmologist. Plaintiffs Jessica and her parents allege that as a result of the doctors' alleged negligence, and the allegedly negligent failure of Caswell Family Medical Center to supervise the doctors and to implement a quality assurance program, diagnosis and treatment of Jessica's bilateral retinoblastomas (cancerous tumors in the eyes) was delayed, reducing her chances of retaining her vision and ultimately necessitating the enucleation of both of her eyes.

At the time of his alleged malpractice, Dr. Hamlor was fulfilling his public service obligation with the National Health Service Corporation ("NHSC"), a branch of the United States Department of Health and Human Services. Upon learning of Dr. Hamlor's status Plaintiffs brought a second suit against Dr. Hamlor. Thereafter, the suits were consolidated and pursuant to 42 U.S.C. § 233 the United States was substituted for Dr. Hamlor as a party defendant and Dr. Hamlor was dismissed from both suits.

Like Dr. Hamlor, Dr. Johnson also practiced at Caswell Family Medical Center ("CFMC") to fulfill his NHSC obligation but did so on a private contract basis and Plaintiffs did not allege liability of the United States for Dr. Johnson's actions. CFMC is named as a defendant for the negligence of Drs. Johnson and Hamlor under the theory of respondeat superior. In addition, Plaintiffs also made claims against CFMC for its independent negligence in failing to supervise the doctors, institute a quality assurance program, or maintain proper patient records. Plaintiffs further claim that CFMC was negligent in hiring and holding out Dr. Johnson as qualified, but the court finds no reasonable factual basis for this contention and rejects it without discussion.

Defendants have moved for summary judgment, challenging the sufficiency of Plaintiffs' evidence, particularly on the issue of causation. Specifically, they assert that expert testimony attributing Jessica's lost vision to the delay in diagnosis and treatment is speculative and does not meet the legal proof requirements. Defendants also contend that Plaintiffs did not plead their claim based on lost chance of Jessica retaining her eyes, but conjured it up only after discovery was completed and Defendants had filed their motions for summary judgment.

In addition to the common bases for Defendants' motions CFMC also asserts that Plaintiffs have failed to produce evidence of a standard of care for a rural family practice clinic, of breach of such standard by CFMC, or alternatively of a causal link between any possible breach and the resulting injury. Finally, CFMC contends that the NHSC was solely responsible for Dr. Hamlor's actions and that since he was not CFMC's agent, respondeat superior does not apply; similarly, Dr. Johnson was not an employee or agent but an independent contractor, for whose actions CFMC is not liable.

For the reasons discussed below, the court grants CFMC's motion for summary judgment as to the parts of Plaintiffs' claims attributing liability to CFMC for Dr. Hamlor's alleged negligence and for hiring and holding out Dr. Johnson as qualified, but otherwise denies summary judgment as to all Defendants on all other claims. The court also denies the United States' motion for judgment on the pleadings.

FACTS

Jessica Shumaker was born in Caswell County, North Carolina, on February 17, 1981. Beginning in March 1981 and continuing periodically through at least November 1982 Jessica's parents brought her to the Caswell Family Medical Center in Yanceyville, Caswell County, North Carolina, for well-baby and minor illness related examinations. Caswell County is a designated health manpower shortage area under 42 C.F.R. § 23, and CFMC is a rural family practice clinic intended to supply basic health care to citizens of the county. CFMC, a federal-grant-funded center, was periodically assigned doctors through the NHSC. Dr. Hamlor fulfilled a two-year commitment to NHSC by practicing at CFMC from August 1980 until August 1982. During that time his paychecks, vacation time, and continuing medical education were handled through the NHSC. Between March 1981 and July 26, 1982, Dr. Hamlor, who was a certified family practitioner, examined Jessica at CFMC on numerous occasions.

Jessica's mother, Donna Shumaker, claims that starting in August 1981 she noticed that Jessica's left eye would wander, rather than focusing in conjunction with the right eye. Mrs. Shumaker alleges that she brought this condition to Dr. Hamlor's attention on numerous occasions, during regular visits to CFMC, and that Dr. Hamlor passed the problem off as a "lazy eye" and said that if it did not correct itself by the time Jessica turned two years old they would correct it by patching her right eye. Neither CFMC's records nor any other notes by Dr. Hamlor indicate complaints about Jessica's eyes or that Dr. Hamlor examined her eyes. Plaintiffs nevertheless assert that the problem worsened over time but Dr. Hamlor's advice remained the same.

Dr. Johnson is a general practitioner who came to CFMC in September 1982 to fulfill a commitment to NHSC under the "private practice option." Upon placement at CFMC Dr. Johnson entered into an "Agreement to Provide Professional Services" with CFMC, through its project director, Stephen Shore. From September through November or December 1982, Dr. Johnson saw Jessica several times. Donna Shumaker asserts that she called Jessica's wandering eye to Dr. Johnson's attention and also informed him of Dr. Hamlor's diagnosis that it was simply "lazy eye." Dr. Johnson concurred in this diagnosis and did not refer Plaintiffs to an ophthalmologist. Dr. Johnson contends that he reviewed Dr. Hamlor's notes on his patients which do not indicate anything about Jessica's eyes.

In late December 1982 or early January 1983, Donna Shumaker visited her optometrist, Dr. B. Daniel Jason, for herself, and while there requested that he see Jessica. Dr. Jason looked at Jessica in his waiting room, without the use of any instruments and "sensed" that she had a more serious problem with her eyes. He referred her to Dr. Charles C. Freed, an ophthalmologist in Danville, Virginia, which is approximately 15 miles from Yanceyville. Dr. Freed examined Jessica on January 14, 1983, under anesthesia, and made the initial diagnosis of retinoblastoma. He then referred her to Dr. Thomas C. Kerns, Jr., at McPherson Hospital in Durham, North Carolina. Dr. Kerns examined Jessica on January 19, 1983, concurred in the diagnosis, and referred her immediately for treatment to Dr. Robert M. Ellsworth at the Cornell University Medical School, Sloan-Kettering Hospital in New York City. Dr. Ellsworth is recognized by experts for both sides as one of the foremost experts, if not the foremost expert, on treatment of retinoblastoma.

Dr. Ellsworth observed several cancerous lesions in each of Jessica's eyes and began radiation treatments and then cryotherapy (freezing). Dr. Ellsworth apparently believed that there remained a good chance of saving the eyes, either a two in three chance, or perhaps a 35% chance of saving the left eye and a 60%-70% chance of saving the right eye. From Dr. Ellsworth's comments the treatment seemed to be proceeding well for a time, but gradually Jessica lost sight in her left eye, which was removed on November 11, 1983. Subsequent treatment of the right eye also failed, and on February 23, 1984, it was removed.

Jessica's cancer apparently did not metastasize prior to enucleation and she is currently healthy, but without sight.

DISCUSSION

Federal jurisdiction over this case is based on 42 U.S.C. § 233(a), which provides that the exclusive remedy against the United States for tortious conduct by an employee or officer of the Public Health Service (including the NHSC), acting within the scope of his employment, is under the Federal Tort Claims Act (FTCA), specifically 28 U.S.C. §§ 1346(b) and 2672. The parties recognized Dr. Hamlor's status with the NHSC and the action accordingly was removed to this court, with the United States replacing Dr. Hamlor as a defendant. The court exercises pendent jurisdiction over the remaining claims which arise from a common nucleus of operative fact. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966).

As with pendent state law claims, actions brought under the FTCA are controlled by the substantive law of the state in which the alleged negligence occurred. See Horton v. United States, 622 F.2d 80, 82 (4th Cir.1980); Garrett v. Jeffcoat, 483 F.2d 590, 592 (4th Cir.1973). Federal rules govern procedural questions, including the requisite standards for summary...