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Nottingham v. United States

United States District Court, S.D. West Virginia, Charleston Division

July 17, 2017




         Pending before the Court is the United States' Motion for Summary Judgment.[1] (ECF No. 32.) For the reasons provided below, the Court GRANTS the motion.

         I. BACKGROUND

         Plaintiff Jeanne Nottingham brings this medical malpractice action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80.[2] Plaintiff alleges that the United States, acting through its employees Primary Care Systems, Inc. (“Primary Care”), Sarah B. Chouinard (“Dr. Chouinard”), and/or Kimberly Ann Bird (“Ms. Bird”), was negligent in its failure to obtain follow-up studies of an abnormal mammogram for a period of almost eighteen months. (See ECF No. 1 at 4-5 ¶¶ 15-17, 22-27.) According to the Complaint, Plaintiff had a mammogram on February 12, 2010, “which was later found to be highly abnormal.” (Id. at 4 ¶ 15.) She alleges that “no follow-up studies were obtained until August 4, 2011, despite the Plaintiff being treated by employees of the Defendants [sic] at Clay Primary Care, on multiple occasions.” (Id. ¶ 16.) The Complaint states that Plaintiff was diagnosed with right breast cancer on August 21, 2011, and underwent a right mastectomy five days later. (Id. ¶ 17.) Plaintiff further claims that the cancer spread to her left breast and lymph nodes, leading to a left mastectomy on October 5, 2011. (Id. ¶ 18.) She avers that because of the “missed diagnosis, ” she underwent chemotherapy and radiation treatments and is “permanently disfigured.” (Id. ¶ 19.)

         Plaintiff filed her Complaint on March 30, 2016, asserting negligence as the cause of action. (Id. at 4-5 ¶¶ 21-27.) She seeks compensation for “medical treatment, past and future, out of pocket expenses, past and future, and other expenses” yet to be determined as well as punitive damages, pre- and post-judgment interest and costs, and any further relief deemed proper by this Court. (Id. at 5-6 ¶ 26.) The United States filed the Motion for Summary Judgment and memorandum in support of its motion on April 24, 2017, and supplemented it with exhibits the next day. (ECF Nos. 32, 33, 34.) Plaintiff responded to the motion on May 5, 2017, (ECF No. 35), and the United States filed a reply memorandum on May 12, 2017, (ECF No. 36). The motion is fully briefed and ripe for adjudication.


         Summary judgment is proper where the pleadings, depositions, and affidavits in the record show that there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If factual issues exist that properly can be resolved only by a trier of fact because they may reasonably be determined in favor of either party, summary judgment is inappropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Pulliam Inv. Co., Inc. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). The moving party bears the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Id.

         When determining whether there is an issue for trial, the Court must view all evidence in the light most favorable to the nonmoving party. Mellen v. Brunting, 327 F.3d 355, 363 (4th Cir. 2003). “[T]he issue of material fact required by Rule 56[a] to be present to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 248-49. The nonmoving party may not rest on the pleadings alone and must show that specific material facts exist by offering more than a mere “scintilla of evidence” in support of his position. Id. at 252.


         The United States moves for summary judgment, arguing that Plaintiff has not met her burden of proof because she failed to provide proper expert testimony in support of her claim. (See ECF No. 33 at 7-8.) The motion avers that Plaintiff cannot establish proximate cause as her disclosed expert witness, Dr. Blanche Borzell, does not provide any opinion “that an injury occurred as a result of the alleged negligence.” (See Id. at 9.) With regard to the almost eighteen-month delay in follow-up studies after Plaintiff's first abnormal mammogram, (see ECF No. 1 at 4 ¶¶ 15-16), the United States argues that “[P]laintiff has offered no expert opinion as to the practical and cognizable effect of the delay, save that the cancer was diagnosed at a later disease stage.” (ECF No. 33 at 9-10 (“Dr. Borzell did not provide any opinion on treatment . . . [and] did not opine that Ms. Nottingham has a shorter life expectancy due to the delay in diagnosis.”).) Further, the United States asserts that the expert is not qualified to provide a causation opinion and does not offer testimony as to recoverable damages. (See Id. at 10-11 (noting that Dr. Borzell, a family medicine physician in private practice, has never practiced in the field of oncology).)

         Plaintiff focuses her response to the motion on the issue of when she was notified of the abnormal results of her February 12, 2010, mammogram. (See ECF No. 35 at 1-4.) Plaintiff claims that she never received information or communication regarding the results of that first mammogram and that “had she known . . . she would have taken immediate action . . . .” (See Id. at 2, 4.) Thus, she claims that whether she was informed of the mammogram's results presents a question of fact for the fact finder. Plaintiff also states that Dr. Borzell “should be allowed to testify as to whether the delay in diagnosis resulted in any harm” to her because, contrary to the United States' position, the certificate of merit included with her Rule 26 disclosure was sufficient. (See Id. at 4.) Finally, Plaintiff for the first time raises the issue of “emotional trauma . . . upon being informed of the delayed diagnosis.”[3] (See id.)

         The reply filed by the United States reiterates Plaintiff's burden of proof in a negligence action and the general principle that expert testimony must support a medical malpractice claim. (See ECF No. 36 at 1.) The United States takes issue with Plaintiff's response in that it “shift[s] her claim to allege that the breach of the standard of care was a failure to notify” as opposed to a “fail[ure] to provide timely follow-up” of her mammogram films as noted in Dr. Borzell's report. (See Id. at 2.) Citing Dr. Borzell's single-sentence statement regarding the effect of Primary Care's alleged failure to follow-up, the United States argues the following: “The failure of Ms. Nottingham to present adequate expert testimony on the issue of proximate cause results in failure of her claim. Plaintiff has not met her burden and cannot sustain a cause of action pursuant to the MPLA. Therefore, defendant is entitled to summary judgment.” (Id. at 4-5 (noting the requirements of Federal Rule of Civil Procedure 26(a)(2) and Dr. Borzell's inability to later expand her testimony to opinions outside of the provided report).) The United States avers that in addition to failing to prove a breach in the standard of care and proximate cause, Plaintiff has failed to prove damages. (Id. at 5.) The reply concludes, “Plaintiff has not provided a scintilla of evidence supporting that any care or treatment received . . . would have been unnecessary or different” given an earlier diagnosis. (Id.)

         The United States is immune from suit unless it consents to be sued. See, e.g., United States v. Sherwood, 312 U.S. 584, 586 (1941); Gould v. U.S. Dep't of Health & Human Servs., 905 F.2d 738, 741 (4th Cir. 1990), cert. denied, 498 U.S. 1025 (1991). The FTCA creates a limited waiver of sovereign immunity “subject to the prerequisite that the tort claim first be submitted to the appropriate federal agency within two years of accrual of the cause of action and that there be a final denial of the claim by the reviewing agency.” Bellomy v. United States, 888 F.Supp. 760, 763 (S.D. W.Va. 1995) (citations omitted) (citing 28 U.S.C. §§ 2401(b), 2675). The United States does not appear to dispute here that Plaintiff met the jurisdictional requirements by timely filing an administrative tort claim with the appropriate federal agency, the Department of Health and Human Services, which was denied. (See ECF No. 1 at 2-3 ¶¶ 8, 10-12; ECF No. 7 at 2-3 ¶¶ 8, 10, 12.)

         The FTCA renders the United States liable for the negligent acts of its employees committed “while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). The United States provides in its answer to the Complaint that Primary Care is a deemed employee of the United States and covered under the FTCA. (ECF No. 7 at 2 ¶ 4.) Further, at all times relevant to this action, Dr. Chouinard and Ms. Bird were employees of Primary Care and the United States for purposes of the FTCA. (Id. ¶ 5.)

         Under the FTCA, the law of the state where the alleged negligence occurred provides the substantive law of the case. See 28 U.S.C. § 1346(b)(1). Here, the alleged negligence occurred in West Virginia, so West Virginia's Medical Professional Liability Act (“MPLA”) applies. See, e.g., Osborne v. United States, 166 F.Supp.2d 479, 496 (S.D. W.Va. 2001); Bellomy, 888 F.Supp. at 764; see also Drennen v. United States, 375 F. App'x 299, 303-04 (4th Cir. 2010) (per curiam). The MPLA sets forth the elements of a medical negligence claim as follows:

(1) The health care provider failed to exercise that degree of care, skill and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider ...

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