The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court
ORDER DENYING GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT
Before the Court is the Government's motion for summary judgment filed on January 31, 2011. See Docket No. 30. The Plaintiff filed a response in opposition to the motion on February 21, 2011. See Docket No. 34. The Government filed a reply brief on March 4, 2011. See Docket No. 36. The Court denies the motion for the reasons set forth below.
On December 25, 2007, the plaintiff, Crystal Poitra, delivered her baby at the Quentin N. Burdick Memorial Health Care Facility ("Burdick Facility"), a federal Indian Health Service medical facility in Belcourt, North Dakota. During the delivery of the placenta, Poitra's uterus inverted, essentially turning inside out. Dr. Patricia Henry made several attempts to reinsert the uterus but was unsuccessful. Poitra was then taken to the operating room where, with the assistance of general anesthesia, Dr. Henry manually replaced the uterus. Later that evening, Dr. Pamela Kidd, who had provided Poitra with prenatal care during her third trimester, took over Poitra's case. Poitra and her baby were discharged from the Burdick Facility on December 27, 2007.
On December 30, 2007, Poitra returned to the Burdick Facility with complaints that she was unable to urinate. A catheter was inserted and Dr. Kidd performed a pelvic exam and diagnosed a partial uterine inversion. After being told of the uterine inversion, either Poitra or her mother requested that Poitra be transferred to another hospital. Poitra was transferred by ambulance to Altru Health System ("Altru") in Grand Forks, North Dakota. Dr. Brian Wildey of Altru examined Poitra under anesthesia and confirmed Poitra's uterus was inverted. After being unable to re-invert the uterus through a laparotomy, Dr. Wildey performed a hysterectomy on Poitra on December 31, 2007. Poitra was discharged from Altru on January 2, 2008.
On August 21, 2008, Poitra submitted a Form 95 Federal Tort Claim to the Burdick Facility. See Docket No. 31-22. On June 29, 2009, the administrative claim was denied. See Docket No. 31-23. On August 7, 2009, Poitra filed suit in federal district court against the Burdick Facility, Dr. Patricia Henry, Dr. Pamela Kidd, and Dr. Richard Larson. See Docket No. 1. On September 21, 2009, the United States was substituted as the defendant. See Docket No. 9.
The amended complaint contends that the Government breached the applicable standards of care and was negligent in numerous ways, including "[f]ailing to obtain Plaintiff's informed consent with respect to the perinatal care provided." See Docket No. 10. Poitra contends that she has suffered extensive damages including "extensive past, present and future medical and related expenses; temporary and permanent physical disability and deformities and scarring; and past, present, and future mental and physical pain and suffering and mental anguish." See Docket No. 10.
On January 31, 2011, the Government filed a motion for summary judgment. See Docket No. 30. The Government contends that Poitra failed to exhaust her administrative remedies as to the claim of lack of informed consent, and that Poitra's negligence claim fails as a matter of law. Poitra contends that genuine issues of material fact exist as to whether she exhausted her administrative remedies, whether the Government's negligence was a proximate cause of Poitra's injuries, whether Dr. Wildey mismanaged Poitra's treatment, and whether Dr. Wildey's alleged mismanagement was an intervening, superseding cause of Poitra's injuries.
Summary judgment is appropriate when the evidence, viewed in a light most favorable to the non-moving party, indicates that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Davison v. City of Minneapolis, Minn., 490 F.3d 648, 654 (8th Cir. 2007); see Fed. R. Civ. P. 56(c). Summary judgment is not appropriate if there are factual disputes that may affect the outcome of the case under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine if the evidence would allow a reasonable jury to return a verdict for the non-moving party.
The Court must inquire whether the evidence presents a sufficient disagreement to require the submission of the case to the fact-finder or whether the evidence is so one-sided that one party must prevail as a matter of law. Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005). The moving party bears the burden of demonstrating an absence of a genuine issue of material fact. Simpson v. Des Moines Water Works, 425 F.3d 538, 541 (8th Cir. 2005). The non-moving party "may not rely merely on allegations or denials in its own pleading; rather, its response must . . . set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2).
Poitra's claim arises under the Federal Tort Claims Act ("FTCA"). 28 U.S.C. §§ 1346(b), 2671-2680. Under the FTCA, the United States waives its sovereign immunity with respect to the following claims: for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government 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.
A. EXHAUSTION OF ADMINISTRATIVE REMEDIES
Under the FTCA, Poitra must first exhaust her administrative remedies before bringing an action against the United States. 28 U.S.C. § 2675(a). "A federal district court does not have jurisdiction over an FTCA claim unless it was 'first . . . presented to the appropriate federal agency . . . within two years of when the claim accrued.'" Allen v. United States, 590 F.3d 541, 544 (8th Cir. 2009) (quoting Walker v. United States, 176 F.3d 437, 438 (8th Cir. 1999)). "Subject matter jurisdiction based upon exhaustion of administrative remedies is a question of law." In Home Health, Inc. v. Shalala, 272 F.3d 554, 559 (8th Cir. 2001) (citing Bueford v. Resolution Trust Corp., 991 F.2d 481, 484 (8th Cir. 1993)). The Court is to "liberally construe an administrative charge for exhaustion of remedies purposes," but "there is a difference between liberally reading a claim which lacks specificity, and inventing, ex nihilo, a claim which simply was not made." Parisi v. Boeing Co., 400 F.3d 583, 585 (8th Cir. 2005) (internal citations omitted).
Poitra's administrative claim asserts medical negligence. See Docket No. 31-22, p. 5. The administrative claim states, in part, that Dr. Henry "forcibly pulled out the placenta, with the uterus still attached, with the Mother screaming in pain. The Doctor continued until she had completely inverted the uterus, pulling it out of her vagina along with the placenta." See Docket No. 31-22, p. 5. Dr. Henry's narrative summary dated February 10, 2008, states in part: In the third stage of labor patient had some signs of placental separation and with Crede maneuver patient was complaining of increased pain, and was asking not to be touched, and patient gave a maternal expulsive effort as instructed because it was felt that the placenta was likely in the vagina. At that time it was then noted that there was a larger placental volume than expected, and it was then evidence that there was uterine inversion. The placenta was largely detached and then was removed, and several attempts were made at replacement of the uterine fundus abdominally, however, these were not successful due to patient discomfort and also inability to get adequate analgesia.
See Docket No. 31-3 (emphasis added).*fn1
In Dillon v. United States, 480 F. Supp. 862 (D.S.D. 1979), the court was presented with similar facts in which the plaintiff brought suit under the FTCA to recover for allegedly improper medical treatment at an Indian Health Services hospital. The court held that the plaintiff's administrative claim which alleged improper treatment and medical services during the course of her gall bladder operation was sufficient to allow the plaintiff to sue on a theory of lack of informed consent. The court stated:
The implementing regulation here, 28 C.F.R. § 14.2(a), states that "a claim shall be deemed to have been presented when a Federal agency receives . . . written notification of an Incident. . . ." (Emphasis supplied) The regulation does not say that every detail of the incident must be supplied, only that the agency be notified that an accident has occurred.
The agency must then, employing its expertise, investigate the "incident" to determine its responsibility for the injury. Considering the number of similar cases against Indian Health Service that are on file with this Court alone, it cannot be successfully contended that defendant is unaccustomed to the investigation of medical negligence allegations, or that it would not expect that the lack of informed consent could be a possible issue in such a case. It seems clear that, even though plaintiff may not have spelled out every possible fact bearing on her right to recovery in her claim, she did provide defendant with sufficient information under § 2675(a) to enable the agency to conduct a full investigation.
Dillon, 480 F. Supp. at 863.
In actions brought against the United States under the FTCA, the Court is to apply the law of the place where the alleged negligence occurred. Consequently, North Dakota medical malpractice law applies. Under North Dakota law, "the doctrine of informed consent is a form of negligence which essentially relates to a duty of a doctor to disclose pertinent information to a patient." Jaskoviak v. Gruver, 2002 ND 1, ¶ 13, 638 N.W.2d 1 (quoting Fortier v. Traynor, 330 N.W.2d 513, 517 (N.D. 1983)). Poitra alleged medical negligence in her administrative claim. The Court finds that the administrative claim, and the attached medical records submitted in support of the claim, set forth sufficient facts to provide the administrative agency, i.e., Indian Health Services, with sufficient notice of the claim and the potential theories of recovery that a reasonable investigation would disclose, including a claim of lack of informed consent.
The Court concludes that the claimant (Poitra) is not obligated to provide the administrative agency with a preview of her lawsuit and a detailed disclosure of every potential claim and theory of recovery. If the cause of action is fairly implicit in the facts set forth in the administrative claim (the Form 95 Federal Tort Claim), the claim has been "presented" and the agency has sufficient notice to enable it to investigate the claim. See Palay v. United States, 349 F.3d 418, 425-26 (7th Cir. 2003) (holding that a plaintiff is not required to plead legal theories in the administrative claim, but must "present" his claims in the sense that he set forth the relevant facts in enough detail to alert the agency to the presence of those claims); Burchfield v. United States, 168 F.3d 1252, 1256 (11th Cir. 1999) (holding that all that is required to put an agency on notice "is that the theory put forward in the complaint filed in the district court be based on the facts that are stated in the administrative claim"). The claimant is not required to specifically enumerate all legal theories of recovery in the administrative claim form.
The Court concludes that a claim of lack of informed consent is implicit in the facts set forth in the administrative claim submitted by Poitra, particularly when the claim is given the required liberal construction for exhaustion of remedies purposes. The Court concludes that Poitra has exhausted her administrative remedies and the Government's motion for summary judgment is denied as to Poitra's claim of lack of informed consent.
In North Dakota, "to establish a prima facie medical malpractice case, the plaintiff must present evidence establishing the applicable standard of care, a violation of that standard, and a causal relationship between the violation and the harm complained of." Greenwood v. Paracelsus ...