Kalina v. United States

564 F.Supp.3d 636

Scott KALINA and Melissa Kalina, Plaintiffs,

v.UNITED STATES of America, Defendant.

Case No. 3:19-cv-00492-GCS

United States District Court, S.D. Illinois.

Signed September 29, 2021

Thomas Q. Keefe, III, Keefe, Keefe & Unsell, P.C., Belleville, IL, for Plaintiffs.

Ray M. Syrcle, Assistant U.S. Attorney, Fairview Heights, IL, for Defendant.

MEMORANDUM & ORDER

SISON, Magistrate Judge:

Plaintiffs Scott and Melissa Kalina brought suit against the United States of America on May 9, 2019, pursuant to 28 U.S.C. § 2674 (the "Federal Torts Claims Act" or "FTCA"). (Doc. 1). In their complaint, Plaintiffs allege one count against Defendant for medical negligence and another count for loss of companionship, both stemming from the alleged negligence of Dr. Adele Roth in failing to adequately record Mr. Kalina's symptoms, leading specialists to misdiagnose Mr. Kalina's brain tumor until 2017. Id. at p. 1, 4. On October 1, 2016, Dr. Roth joined the Southern Illinois Healthcare Foundation ("SIHF"). (Doc. 21, p.7). As SIHF is eligible for FTCA malpractice coverage, Dr. Roth was also eligible for protection at that time. Id. Shortly thereafter, she was deemed an employee of the Department of Health and Human Services pursuant to 42 U.S.C. §§ 233(g)(1)(A), 254b (the "Federally Supported Health Centers Assistance Act" or "FSHCAA"). Id. at p. 10. The United States is therefore appropriately substituted for Dr. Roth as defendant in this case.

Now before the Court is Defendant's motion for summary judgment. (Doc. 21). For the reasons delineated below, the motion for summary judgment is DENIED.

FACTUAL ALLEGATIONS

Mr. Kalina first presented to Dr. Roth on August 30, 2012, complaining of indigestion and a temporary loss of consciousness, known as syncope. (Doc. 21, p. 2). Dr. Roth referred Mr. Kalina to the neurology department at Barnes Jewish Hospital ("Barnes") and ordered a Magnetic Resonance Imaging scan ("MRI") of Mr. Kalina's brain from Memorial Hospital in Belleville, Illinois. Id. The September 11, 2012 results indicated a proliferation of cells in the central nervous system and a potential brain tumor. Id. The conducting radiologist further recommended imaging surveillance to document stability, with repeat MRIs to be conducted every six months. Id. Dr. Roth did not directly inform Mr. Kalina of the MRI results. Id.

Instead, she wrote on the report, "[r]efer to Neurologist at Barnes." Id. The referral coordinator for Dr. Roth's office then handled the referral, though there is no evidence that Mr. Kalina followed through on the referral in 2012 or 2013. Id. at p. 2-3.

Dr. Roth's office also converted to an electronic medical record ("EMR") system in August 2012. (Doc. 21, Exh. 2, p. 2). Mr. Kalina's abnormal MRI report was never scanned into the new electronic medical record or recorded on the "Problem List" of the EMR. Id. at p. 3. Because no other treating or consulting physicians were aware of the recommendations or the abnormal MRI, Mr. Kalina did not receive bi-annual MRI monitoring. Id. Though Dr. Roth continued to treat Mr. Kalina, she did not remember the abnormal MRI until Mr. Kalina's brain tumor was ultimately diagnosed in October 2017. Id.

Instead of complying with the recommendation to conduct bi-annual MRI surveillance of Mr. Kalina's brain, when Mr. Kalina returned to Memorial Hospital with complaints of muscular tremors on April 11, 2013, experts at Memorial Hospital conducted a computerized axial tomography ("CAT") scan. (Doc. 21, p. 3). The CAT scan noted a finding in the region of the abnormality but did not unearth evidence of a tumor. Id. The scanning specialists theorized that Mr. Kalina was experiencing tremors as a result of a medication-induced serotonin reaction, and Mr. Kalina was instructed to discontinue taking the drug Effexor. Id. When Mr. Kalina again experienced tremors the following day, specialists at Barnes diagnosed him with poisoning by certain medications and instructed him to stop taking those medications. Id.

Mr. Kalina's symptoms continued throughout April 2013. On April 23rd, Mr. Kalina complained of body spasms; treating physicians at Barnes conducted an MRI and noted a small finding within the right occipital lobe. (Doc. 21, p. 3). The treating neurologists determined that the MRI results did not correspond with Mr. Kalina's right-sided numbness and indicated that the finding most likely represented a developmental anomaly. Id. In order to confirm their findings, the physicians also conducted an electroencephalogram ("EEG"). Id. The EGG returned normal results. Id. Based on the EEG and MRI results, the physicians diagnosed Mr. Kalina with non-epileptic seizures ("PNES"). Id. As PNES are a "physical manifestation of psychologic distress," id. , Dr. Roth referred Mr. Kalina to a psychiatrist during a follow up visit on May 9, 2013. Mr. Kalina's symptoms continued to persist throughout 2014 and into 2015, when he began seeing a psychiatrist for talk therapy. Id. at p. 4-5.

Mr. Kalina saw Dr. Roth approximately twelve times from 2013 through 2017. (Doc. 21, p. 5). Four of these visits pertained to Mr. Kalina's seizures and other symptoms. Id. On June 19, 2015, Dr. Roth ordered an X-Ray of Mr. Kalina's back after he experienced low back pain during his seizures. Id. On February 11, 2016, Mr. Kalina saw Dr. Roth for burning with urination and history of fatigue; he also noted that his seizures were increasing in frequency. Id. Dr. Roth noted that Mr. Kalina had an upcoming appointment with his neurologist at Saint Louis University ("SLU"). Id. On March 8, 2016, Dr. Roth approved a thirty-day heart event monitor related to Mr. Kalina's seizures. Id. Finally, on March 31, 2016, during a visit with a physician's assistant on a follow-up from SLU, Mr. Kalina was told non-epileptic seizures were likely. Id. The physician's assistant initiated a referral to a neurologist at Missouri Baptist Hospital. Id. at p. 6. Shortly after this visit, on October 1, 2016, Dr. Roth became a deemed employee of the Department of Health and Human Services qualifying for FTCA malpractice coverage through SIHF. Id. at p. 7.

Dr. Roth remained Mr. Kalina's primary care physician through 2016 and 2017. (Doc. 22, p. 4). However, she failed to schedule an annual physical exam for Mr. Kalina in either 2016 or 2017. Id. She also failed to update Mr. Kalina's medical problems list. Id. at p. 5. In January 2017, Mr. Kalina went to the emergency room for treatment of his seizures. Id. at p. 6. However, Dr. Roth did not follow-up or address the emergency room visit for Mr. Kalina's escalating seizure activity. Id.

Treating physicians first began to suspect that Mr. Kalina had a tumor in 2017. On February 11, 2017, Mr. Kalina underwent a CAT scan and MRI to diagnose a facial infection. (Doc. 21, p. 6). The MRI noted an abnormal lesion in the right occipital lobe; this report was sent to Dr. Roth. Id. After reviewing the report, Dr. Roth instructed Mr. Kalina to call his specialist and inform him that he required further testing. Id. A follow-up MRI in August 2017 noted a mass-like area in the right occipital lobe suggestive of a tumor. Id. On September 19, 2017, another MRI confirmed these findings. Id. Physicians resected the lesion by surgery on October 30, 2017. Id.

LEGAL STANDARDS

Summary judgment is proper when the pleadings and affidavits "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. PROC. 56(c) ; Oates v. Discovery Zone , 116 F.3d 1161, 1165 (7th Cir. 1997) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). The movant bears the burden of establishing the absence of a genuine issue as to any material fact and entitlement to judgment as a matter of law. See Santaella v. Metro. Life Ins. Co. , 123 F.3d 456, 461 (7th Cir. 1997) (citing Celotex , 477 U.S. at 323, 106 S.Ct. 2548 ). This Court must consider the entire record, drawing reasonable inferences and resolving factual disputes in favor of the non-movant. See Regensburger v. China Adoption Consultants, Ltd. , 138 F.3d 1201, 1205 (7th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). See also Smith v. Hope School , 560 F.3d 694, 699 (7th Cir. 2009) (stating that "we are not required to draw every conceivable inference from the record ... we draw only reasonable inferences") (internal citations omitted). Summary judgment is also appropriate if a plaintiff cannot make a showing of an essential element of his claim. See Celotex , 477 U.S. at 322, 106 S.Ct. 2548. While the Court may not "weigh evidence or engage in fact-finding[,]" it must determine if a genuine issue remains for trial. Lewis v. City of Chicago , 496 F.3d 645, 651 (7th Cir. 2007).

In response to a motion for summary judgment, the non-movant may not simply rest on the allegations in his pleadings; rather, he must show through specific evidence that an issue of fact remains on matters for which he bears the burden of proof at trial. See Walker v. Shansky , 28 F.3d 666, 670–671 (7th Cir. 1994), aff'd, 51 F.3d 276 (7th Cir. 1995) (citing Celotex , 477 U.S. at 324, 106 S.Ct. 2548 ). No issue remains for trial "unless there is sufficient evidence favoring the non-moving party for [the fact finder] to return a verdict for that party ... if the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Anderson , 477 U.S. at 249–250, 106 S.Ct. 2505 (citations omitted). Accord Starzenski v. City of Elkhart , 87 F.3d 872, 880 (7th Cir. 1996) ; Tolle v. Carroll Touch, Inc. , 23 F.3d 174, 178 (7th Cir. 1994). In other words, "inferences relying on mere speculation or conjecture will not suffice." Trade Fin. Partners, LLC v. AAR Corp. , 573 F.3d 401, 407 (7th Cir. 2009) (internal citation omitted). See also Anderson , 477 U.S. at 252, 106 S.Ct. 2505 (finding ...