Scott v. United States

1

CRAIG SCOTT, Plaintiff, v. UNITED STATES OF AMERICA, on behalf of the U.S. Air Force and U.S. Department of Health and Human Services, Defendant.

No. 3:18-CV-00629-NJR

United States District Court, S.D. Illinois

April 12, 2023

MEMORANDUM AND ORDER

NANCY J. ROSENSTENGEL, Chief U.S. District Judge.

Pending before the Court are several motions between the two remaining parties in this action, Plaintiff Craig Scott and Defendant United States of America (“United States”). The United States represents both the United States Air Force (“Air Force”) and the United States Department of Health and Human Services (“HHS”) in this action. Currently pending are three motions for summary judgment-one filed by the United States for the Air Force, one by the United States for the Air Force and HHS, and one by Scott. (Docs. 185; 186; 188). Moreover, there are three pending motions attacking expert opinions and testimony-two by the United States, and one by Scott. (Docs. 166; 187; 190).

Factual Background

In April 2006, Scott underwent surgery on his lower left leg which addressed occlusion (blockage) in several arteries. (Doc. 188-1). Shortly thereafter in a follow-up appointment a non-party physician prescribed Coumadin (the brand name for an anticoagulant called Warfarin) to treat Scott's newly diagnosed peripheral vascular disease. (Doc. 188-4). This appointment occurred at a Federally Qualified Health Center operated by Southern Illinois Health Care Foundation, Inc. referred to as the Belleville Family Health Center, in Belleville, Illinois (a civilian clinic operated by HHS, next to a military clinic operated by the Air Force). (Id.). Scott also received primary care at the civilian clinic from 2011 to 2015, and in 2013, he was assigned to a resident, Dr. Erynn Elleby. (Doc. 188-5). In November 2014, Elleby discontinued his Coumadin prescription pending Scott's presentation for lab work. (Doc. 188-7). Then, Scott sought to switch primary care services to the VA (Doc. 188-9).

In February 2015, Scott developed issues with his lower right leg and foot. (Id.). After seeking care at the VA earlier in the month, Scott presented to the Protestant Memorial Medical Center (“Memorial Hospital” or “Memorial”) Emergency Room on March 31, 2015, with complaints regarding his afflicted lower right leg and foot. (Id.; Doc. 188-11). Days later, Scott returned to Memorial Hospital for vascular testing. (Doc. 188-12). Using its automated fax system (“Forward Advantage”), Memorial intended to send copies of the medical notes from Scott's visits to Dr. Elleby, including the vascular study and abnormal arterial study. (Docs. 188-11; 188-12; 188-20, p. 2). In May 2015, Scott returned to the VA and visited another hospital, Christian Hospital, multiple times for heart palpitations and lower extremity pain. (Docs. 188-13; 188-14; 188-15). From there, Scott was referred to an orthopedic specialist and was eventually transferred to Barnes-Jewish Hospital where he underwent a below-knee amputation of his right leg in July 2015. (Docs. 188-18; 188-19).

To maintain the Forward Advantage automated fax system, analysts at Memorial would add and update a provider dictionary. (Doc. 188-20, pp. 5-7). In attempting to send Scott's medical records to Dr. Elleby, the Forward Advantage system utilized a fax number associated with the adjacent military clinic operated by the Air Force instead. (Doc. 183, ¶ 16). The military and civilian clinics participated in a residency program and operated on the same floor but in separate spaces. (Doc. 188-23). According to Scott, Memorial and the military and civilian clinics were all aware of ongoing fax delivery issues. (Docs. 188-24; 18825). As common practice, the two clinics would set aside misdirected faxes for the other clinic to retrieve. (Docs. 188-22; 188-24; 188-26). The United States disputes that the military clinic ever received the faxes from Memorial pertaining to Scott.

In his Second Amended Complaint, Scott claimed that Memorial failed to properly handle his medical records or communicate with his medical providers. (Doc. 179, pp. 9-11). But Scott's claims against Memorial Hospital have since been settled. (Docs. 216; 218). As to the United States, Scott contends that the military and civilian clinics^[1] negligently handled the faxed medical records and failed to properly communicate with his medical providers which prolonged and exacerbated his condition leading to his ultimate amputation. (Doc. 179, pp. 6-9; See member case, Scott v. USA, No. 19-cv-1029-NJR, at Doc. 37). Both Scott and the United States move for summary judgment on various issues and attack proposed expert testimony before trial.

MOTIONS FOR SUMMARY JUDGMENT

I. Legal Standard

A court should grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). Assertions that a fact cannot be or is genuinely disputed must be supported by materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials. FED. R. CIV. P. 56(c)(1). Once the moving party sets forth the basis for summary judgment, the burden then shifts to the nonmoving party who must go beyond mere allegations and offer specific facts showing that there is a genuine issue of fact for trial. FED. R. CIV. P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). In determining whether a genuine issue of fact exists, the Court must view the evidence and draw all reasonable inferences in favor of the non-movant. Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

II. United States' Motion on behalf of the Air Force (Doc. 185)

The United States argues that Scott's claim against the Air Force accrued shortly after July 2015 when his medical records were sent to his prior counsel, and therefore he submitted an administrative claim to the Air Force over a year late under the Federal Tort Claims Act (“FTCA”). Scott received records from Memorial on August 27, 2015, which according to the United States, contained the necessary information for Scott to pursue and discover any potential Air Force involvement in this case. As such, the United States contends that Scott's claim involving the Air Force accrued on that date rendering his administrative tort claim due to the Air Force by August 27, 2017. Because Scott submitted his administrative claim in March 2019, the United States urges that Scott submitted his administrative tort claim in an untimely fashion entitling the United States to summary judgment. Moreover, the United States claims that the untimeliness resulted in prejudice as the relevant fax equipment was likely moved from Scott Air Force base in October 2017, and its whereabouts are unknown. The United States avers that if Scott's claim was filed in the appropriate timeframe, such equipment may have been readily available for examination and use in defending this case.

On the other hand, Scott contends that he did not know or have reason to know of potential negligence by the Air Force until September 2018 when, through discovery related to the claims against the civilian clinic, he realized that Memorial possibly faxed his medical records to a number associated with the military clinic. This realization came about following the deposition of Cindy Jorns, an employee at Memorial, who alerted Scott that the fax number used to transmit his medical records to the civilian clinic was actually a number listed for a military nurse station. About six months later, in March 2019, Scott submitted an administrative tort claim for personal injury to the Air Force. Then, in September 2019, Scott filed a complaint against the United States regarding the military clinic in this case's member case. As such, Scott argues his administrative claim and subsequent complaint were timely.

The FTCA provides that “[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues.” 28 U.S.C. § 2401(b). The Seventh Circuit instructs that an FTCA claim accrues in two ways: when (1) an individual actually knows enough to tip him off that a government act (or omission) may have caused his injury; or (2) a reasonable person in the individual's position would have known enough to prompt a deeper inquiry. Blanche v. United States, 811 F.3d 953, 958 (7th Cir. 2016). The former presents a subjective analysis; the latter presents an objective analysis. Id.

Under the subjective analysis, the parties do not dispute the timeliness of Scott's FTCA claim against the Air Force. Clearly, Scott actually knew enough to tip him off that the Air Force may have negligently caused his injury in September 2018 when he realized for the first time that Memorial possibly faxed his medical records to a number associated with the military clinic following the deposition of Cindy Jorns.

Instead the parties disagree over the result of the objective analysis. The United States argues that a reasonable person in Scott's position would have known enough to prompt a deeper inquiry into potential involvement of the military clinic when his original attorney received his medical records from Memorial and the civilian clinic in August 2015. At that point, the United States contends that Scott's attorney should have inquired further into how and when Memorial attempted to send the information to Dr. Elleby at the civilian clinic. Given the abnormal finding in his arterial doppler...