Scholz v. United States

18 F.4th 941

Bobbie Jo SCHOLZ, Plaintiff-Appellant,

v.UNITED STATES of America, et al., Defendants-Appellees.

No. 20-2163

United States Court of Appeals, Seventh Circuit.

Argued September 22, 2021

Decided November 23, 2021

Christopher Keleher, Attorney, Keleher Appellate Law Group, LLC, Chicago, IL, Mary L. Woehrer, Attorney, Woehrer Law Office, Wauwatosa, WI, for Plaintiff-Appellant.

Emily A. Constantine, Jonathan H. Koenig, Attorneys, Office of the United States Attorney, Milwaukee, WI, Timothy W. Funnell, Attorney, Office of the United States Attorney, Green Bay, WI, for Defendants-Appellees.

Before Sykes, Chief Judge, and Flaum and Brennan, Circuit Judges.

Flaum, Circuit Judge.

Plaintiff-appellant Bobbie Jo Scholz suffered from serious physical and mental ailments following her service in the military. As a result, Scholz received extensive treatment from the Department of Veterans Affairs ("VA"). After this challenging medical journey, she pointed to government negligence as the cause of the drastic decline in her mental and physical state. Seeking recourse, Scholz sued defendant-appellee United States twice under the Federal Tort Claims Act ("FTCA"), 28 U.S.C §§ 1346(b), 2671 – 2680. Her first lawsuit predominately failed at the motion-for-summary-judgment stage. Her second lawsuit, now before us on appeal, sought to raise claims implicating the same, or essentially the same, facts as those claims from her first lawsuit. The district court therefore dismissed her duplicative lawsuit under the rule against claim splitting. Agreeing with the district court, we now affirm.

I. Background

Scholz was honorably discharged following her 2006 to 2008 tour of duty in Iraq for the United States Army, but the mental and physical toll of her service unfortunately extended well beyond her time in the military. In the years that followed, Scholz required a range of medical treatment. As the relevant starting point for this appeal, Scholz sought two courses of inpatient mental health treatment at the VA Medical Center in Tomah, Wisconsin (the "Tomah VAMC") between January and March 2011. Later, while receiving outpatient mental health treatment through the Tomah VAMC, she met with surgeons at the Zablocki VA Medical Center in Milwaukee, Wisconsin (the "Zablocki VAMC") about an elective breast reduction surgery in mid-December 2011. That same month, an unrelated psychological assessment performed at the Zablocki VAMC raised red flags about Scholz's mental health. Surgeons at the Zablocki VAMC performed the elective breast reduction surgery in January 2012, which ignited a cascade of complications—surgical and otherwise. Scholz continued to receive outpatient mental health treatment, including prescription medications, from various VA providers through the fall of 2018.

Scholz currently has two active lawsuits pending against defendant. The first lawsuit, Scholz v. United States , No. 16-cv-01052, 2021 WL 3465953 (E.D. Wis. Aug. 6, 2021) (" Scholz I "), began when Scholz sued defendant on August 8, 2016, in the Milwaukee division of the Eastern District of Wisconsin. The second, lawsuit—and the one currently before us—Scholz v. United States , No. 19-cv-01074 (E.D. Wis. dismissed June 8, 2020) ("Scholz II "), began when Scholz sued defendant on July 26, 2019, in the Green Bay division of the Eastern District of Wisconsin.

Both lawsuits concern the treatment Scholz received at various VA facilities and outpatient programs. The extent to which the lawsuits cover the same conduct, however, is the key question presented in this appeal. The government argues that Scholz I and Scholz II rely on the same, or essentially the same, operative facts, which would preclude Scholz II on claim-splitting grounds. Scholz, on the other hand, argues that Scholz I and Scholz II turn on different sets of operative facts such that claim splitting is inapplicable. To analyze this dispute, we summarize the relevant details of each lawsuit below.

A. Scholz I¹

In line with the FTCA's administrative exhaustion requirements, 28 U.S.C. § 2675(a), Scholz first submitted a form SF-95 claim for damage, injury, or death to the Milwaukee VA on September 9, 2013. Her 2013 administrative claim focused on her breast reduction surgery and resultant "severe physical disfigurement and permanent physical, mental and emotional disabilities." In this initial step of administrative review, she alleged that her physician team at the Zablocki VAMC "failed to obtain proper informed consent prior to [her breast reduction ] surgery and this failure was a cause of injury as [she] would not have undergone the surgery had she been properly informed." She alleged this initial negligent action resulted in "on-going treatment and additional ... painful surgeries ... which have impacted her physical, mental and emotional health."

Scholz's September 2013 administrative claims were denied on April 2, 2014. Relevant to this appeal, the denial letter apprised dissatisfied claimants of available paths for reconsideration, including the option to file a federal lawsuit within six months of the denial, but qualified this guidance with the following caveat:

Please note that FTCA claims are governed by a combination of Federal and state laws. Some state laws may limit or bar a claim or law suit. VA attorneys handling FTCA claims work for the Federal government, and cannot provide advice regarding the impact of state laws or state filing requirements.

On September 26, 2014, Scholz filed a request for reconsideration with the VA General Counsel. In its October 14, 2014, acknowledgment of receipt of Scholz's request for reconsideration, the VA once again warned Scholz about the combination of state and federal law governing FTCA claims, providing the same caveat listed above that appeared in the April 2, 2014, denial.

Scholz filed another form SF-95 on March 7, 2015, adding allegations of negligent mental health treatment at the Tomah VAMC "[c]ommencing on or about January 1, 2011, and continuing thereafter for years" claiming "[s]he was placed in a dangerous situation through improper prescriptions of medications" and "was unable to properly care for herself resulting in permanent mental, emotional and physical injury." In denying this request on September 8, 2015, regional counsel included information about filing a request for reconsideration with the VA General Counsel and the option for filing suit in federal district court, but it did not include the twice-received disclaimer regarding the impact of state laws and state filing requirements on filing a suit in federal court. On October 3, 2015, Scholz filed a request for reconsideration with the VA General Counsel. In its October 15, 2015, acknowledgment of receipt of request for reconsideration, the VA again mirrored the previous disclaimer that "[s]ome state laws may limit or bar a claim or law suit" relating to FTCA claims and "VA attorneys handling FTCA claims work for the Federal government, and cannot provide advice regarding the impact of state laws or state filing requirements."

On February 18, 2016, the VA issued a final decision upon reconsideration, denying both Scholz's 2013 claim relating to her breast reduction surgery and her 2015 claim relating to her mental health treatment in a joint decision. This denial stated:

This denial is the last action we will take on this tort claim. If your client wishes to pursue this claim further, she may file suit in Federal district court within 6 months from the date at the top of this letter.

...

Please note that FTCA claims are governed by a combination of Federal and state laws. Some state laws may limit or bar a claim or law suit. VA attorneys handling FTCA claims work for the Federal government, and cannot provide advice regarding the impact of state laws or state filing requirements.

Thereafter, Scholz filed Scholz I —a two-count complaint based on her 2013 and 2015 administrative claims—in federal district court on August 8, 2016. The complaint implicated concerns about both Scholz's mental health treatment and her breast reduction surgery. Scholz's complaint alleged that after her tour of service, she was treated for various mental health issues at the Tomah VAMC in 2011 and 2012 and had been prescribed as many as sixteen active medications during that time. As detailed in the complaint, on January 6, 2012, around the time of Scholz's Tomah VAMC treatment, a medical team at Zablocki VAMC performed a bilateral breast reduction surgery on Scholz. With respect to that procedure, Scholz alleged the operating surgeons failed to obtain informed consent, despite her "diminished mental status." After the surgery, several distressing post-operative complications arose, which required four additional corrective surgeries over two years. Of note, the Zablocki VAMC surgeons flagged "self mutilation" as a contributing factor.

At a high level, the two counts asserted claims of "negligence and professional malpractice in connection with medical care provided to Plaintiff Scholz by the Department of Veteran Affairs at the Tomah Veterans Affairs Medical Center, the Zablocki Veterans Affairs Medical Center, and outpatient programs." Framed by Scholz as part of her medical negligence claim, the complaint also briefly alleged that the VA was negligent in failing to timely provide her records from the Tomah VAMC, despite her formal requests for them.²

The district court began by dismissing Scholz's claim of negligent hiring, supervision, or retention because she had failed to exhaust administrative remedies for any such claim, which the FTCA requires. 28 U.S.C. § 2675. Separately, the district court found Scholz was not alleging a standalone tort based on an alleged duty to provide medical records, but instead "offer[ed] these details only in support of her medical malpractice claim." Next, the district court denied as untimely Scholz's motion to amend her complaint to increase her requested damages from $2.5...