Hager v. United States

1

Sarah Hager, et al., Plaintiffs, v. United States of America, Defendant.

No. CV-20-02275-PHX-DWL

United States District Court, D. Arizona

February 22, 2024

ORDER

DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE

In June 2019, Edward Michael Hager (“Hager”) sought mental health counseling at a clinic operated by the Department of Veterans Affairs (“VA”) in Gilbert Arizona. Later that day or the following day,^[1] Hager committed suicide. Hager's spouse, Sarah Hager, who is acting on behalf of herself and the statutory beneficiaries of Hager (collectively, “Plaintiffs”), brought suit against the United States (“Defendant”) under the Federal Tort Claims Act (“FTCA”), alleging that the nurse who treated Hager at the VA clinic committed malpractice.

Now pending before the Court is Defendant's renewed motion for summary judgment. (Doc. 82.) For the following reasons the motion is granted.

BACKGROUND

The following facts are derived from the parties' submissions and the record evidence and are uncontroverted unless otherwise noted. Additional facts bearing on the parties' specific summary judgment arguments are addressed in the Discussion portion of this order.

I. Relevant Factual Background

Hager served in the United States Army from 2002 to 2006. (Doc. 57-1 at 18.) He was deployed to Iraq for 15 months in 2003 and 2004, during which time he “[s]aw friends die, was shot at and sustained several blast injuries and brain concussion [sic].” (Doc. 63 at 13.)

Hager's medical records reveal a series of mental health problems following his return to civilian life, including diagnoses of post-traumatic stress disorder (“PTSD”) and a traumatic brain injury (“TBI”). (Doc. 57-1 at 5 ¶ 12.) In 2008, he was admitted for inpatient psychiatric care after his wife reported that he had written a suicide note. (Id. at 13, 18.)^[2] In 2008 or 2009, he began suffering from “paranoia.” (Id.)^[3]

On October 23, 2008, Hager underwent a neuropsychological screen. (Doc. 63 at 14.) The referral for the screen stated that Hager “reported progressively worsening problems with forgetfulness, attention/concentration, word finding and emotional control following his 2004 return from Iraq. . . . He also described significant depressive and anxious symptomatology that is interfering with his ability to sleep and function socially.” (Id.) The assessment report from the screen, entered on October 27, 2008, described Hager's “verbal and visual memory abilities” as “compromised.” (Id. at 15 [“Retention of both verbal and visual information following a brief delay was severely impaired . . . .”].) The report also stated that Hager reported a variety of psychiatric symptoms (e.g., hypervigilance, frequent nightmares, and significant irritability) but that, “[i]nterestingly, when later asked to fill out self report measures of mood symptoms, his endorsement indicated only mild symptoms of depression and anxiety . . . . Inconsistency in . . . reports likely indicates that the inventories represent an underestimation of his current symptoms.”

(Id. at 16.) The report concluded that Hager “reported a considerable amount of psychiatric problems that are consistent with his history of PTSD and [a]lcohol abuse.” (Id.)

On November 10, 2008, Hager saw a psychiatrist for symptoms related to his PTSD and TBI. (Id. at 12-13.) At that time, Hager was experiencing “nightmares of combat,” trouble sleeping, anxiety about crowds, and “flashbacks when . . . driving.” (Id. at 13.) The psychiatrist reported that Hager “has symptoms of post concussion syndrome, post concussive headache and PTSD,” had “mild irritability,” and was “mildly anxious.” (Id.) The psychiatrist also reported Hager's substance abuse and family history-his “[f]ather was [an] alcoholic, is in prison for manslaughter” and Hager “has infrequent contact with him.” (Id.) During the appointment, Hager did not express suicidal ideation or a plan or an intent to harm others. (Id.)

On June 17, 2013, Hager presented at a VA clinic in Phoenix and reported suffering from “increasing paranoia” and sleep deprivation. (Doc. 57-1 at 13.) The paranoia included suspicions that his wife was cheating on him, “thoughts that his boss [was] not calling him,” and “paranoia that the authorities are watching him because of a DVD of possible pornography that didn't belong to him and he thinks was planted on him.” (Id.) Hager also thought “he was poisoned as he had blood in his urine and stool and chest pain.” (Id. at 18.)^[4] He reported that he felt “hopeless about the present/future.” (Id. at 16-17. See also id. at 22 [stating that Hager felt “[l]ittle interest or pleasure in doing things” and “down, depressed, or hopeless” for several days]; id. [stating that Hager's screening assessment was “suggestive of moderately severe depression”].) Further, the provider noted that Hager's gun ownership “elevate[d] [his] suicide risk.” (Id. at 18.) However, Hager denied past or present suicidal ideations or attempts. (Id. at 16-17.) The provider estimated Hager's risk level for suicide was “[l]ow: [d]esire or [c]apability alone.” (Id. at 19 [“There is a willingness to engage in treatment. Has some social support [f]rom family/friends. Has some suicidal ideation, but is limited in [i]ntensity and duration.”].) The provider determined that Hager was “[a]dequate for outpatient treatment.” (Id. at 15.) He was scheduled to see a psychiatrist within the following two weeks. (Id. at 5 ¶ 12.) However, he did not keep the appointment. (Id.)

Six years later, on June 24, 2019, Hager presented as a walk-in patient at the VA's Willow Clinic in Gilbert, Arizona and requested counseling services. (Id. at 4 ¶ 4, 6 ¶ 14.)^[5]A medical support assistant, Christian Underwood (“MSA Underwood”), took Hager's vital signs and administered the Patient Health Questionnaire (“PHQ-2+I9”), “which is the standard depression and primary suicide risk screen,” as well as “the standard PTSD and primary suicide risk screen” (“PC-PTSD-5+I9”). (Id. at 4 ¶ 7, 6 ¶¶ 16-17.)^[6] “Depending on the Veteran's responses [to the risk screens], the computer determined whether the Veteran was positive for depression and/or PTSD.” (Id. at 4 ¶ 7.)

On the PC-PTSD-5+I9, Hager scored a 0 on the suicide screen, which indicates a “negative screen for risk of suicide over the last 2 weeks,” and a 2 on the PTSD screen, “which indicates a negative screen for PTSD in the past month.” (Id. at 31, capitalization omitted.) On the PHQ-2+I9, Hager scored a 2 on the depression screen, “which indicates a negative screen on the depression scale over the past 2 weeks,” and a 0 on the suicide screen, “which indicates a negative screen for risk of suicide over the past 2 weeks.” (Id. at 32, capitalization omitted.)^[7]

Next, Hager was seen by the triage nurse. (Id. at 4 ¶¶ 4-5.) At that time, William Weishaar (“Nurse Weishaar”) worked as the regular triage nurse at the Willow Clinic. (Doc. 63 at 25.) When Nurse Weishaar wasn't working, “[t]he other nurses in the Willow Clinic rotated to cover [the] triage position.” (Doc. 57-1 at 4 ¶ 5.) On June 24, 2019, Vicky Markey (“Nurse Markey”) was covering triage. (Id.)^[8]At all relevant times, Nurse Markey worked as a mental health nurse at the Willow Clinic. (Id. at 3 ¶ 3.)

During the June 24, 2019 consultation with Nurse Markey, Hager requested counseling, explaining: “I am feeling anxious and need some counseling. My wife and kids are gone for two weeks and I don't know what to do with myself.” (Id. at 26.)^[9] Nurse Markey stated that “Hager seemed sad during the appointment, but he was forthright and matter of fact when answering my questions.” (Id. at 7 ¶ 27.) She reported that “Hager was not delirious, delusional, psychotic, insane, or otherwise of unsound mind.” (Id. at 7 ¶ 28.) Hager explained to Nurse Markey that he had “hardly slept in days” and “hate[d] being alone and in [his] own head.” (Id. at 26.) He also mentioned that he had recently stopped running a website for veterans because it was getting too “dark” and “bringing up past memories” and that, as a result, he had “too much time on his hands and [was] thinking too much.” (Id.) Hager reported that he was not taking any prescribed medications for his mental health and that he did not want to take any medications, but rather he “just want[ed] to start talking to someone.” (Id.) Hager also reported that he “[u]ses marijuana to help with sleep and nightmares and finds it effective”; “drinks a couple times a year and drinks till he passes out”; and “uses tobacco every day . . . within 30 minutes of waking up.” (Id. at 26-27.) Nurse Markey expressed concern over Hager's alcohol use and “[a]dvised [Hager] to abstain from drinking alcohol due to contraindications.” (Id. at 25.) He “decline[d] referral for alcohol use assessment or treatment.” (Id.) He also declined behavior counseling and medications to assist him with quitting smoking. (Id. at 28.)

Nurse Markey administered the C-SSRS, which is “a standard suicide screening tool widely used in the mental health and primary care settings,” and also completed a suicide risk assessment (“SRA”), “which is a clinical evaluation to determine the nature and degree of suicide risk/probability.” (Id. at 6-7 ¶ 20.) “The C-SSRS and SRA indicated that [Hager] was at low risk for suicide.” (Id. at 7 ¶ 20.) In relevant part, Hager reported that in the past month, “he had never wished that he was dead or that he could go to sleep and not wake up,” did not have “any actual thoughts of killing himself,” had not considered suicide, and he had never prepared or attempted to commit suicide. (Id. at 7 ¶¶ 21-23.) Nurse Markey then asked Hager “whether he had firearms in his home” and, if so, whether “he would consider removing his firearms from his...