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Grant v. United States

United States District Court, D. South Carolina, Columbia Division

May 24, 2017

Bobby Grant, Jr., as Personal Representative of the Estate of Bobby Grant, Sr. and as Representative of Statutory Beneficiaries, Plaintiff,
United States of America, Defendant.


          CAMERON MCGOWAN CURRIE, Senior United States District Judge

         Through this action, Bobby Grant, Jr. (“Plaintiff”), acting as personal representative of the estate of Bobby Grant, Sr. (“Decedent”) and as representative of Decedent's statutory beneficiaries, seeks recovery from the United States of America (“Government”) for alleged medical malpractice. Plaintiff's claims arise out of medical treatment Decedent received at the William Jennings Bryan Dorn Veterans Administration Medical Center (“Dorn VAMC”) and focus on allegations Decedent's primary care physician violated the applicable standard of care resulting in a failure to timely diagnose Decedent's prostate cancer. Plaintiff proceeds under the Federal Tort Claims Act, 28 U.S.C. § 2671 to § 2680 (“FTCA”) and incorporated state law governing wrongful death and survival claims.

         The matter is before the court on the Government's motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, for summary judgment under Rule 56. ECF No. 8. The Government argues Plaintiff's claims are barred by the FTCA's two-year statute of limitations. This argument depends on the assumption the claims accrued no later than August 29, 2012, more than two years before Plaintiff filed an FTCA administrative claim (“FTCA Claim”) in March 2015. See ECF No. 8-1 at 10; but see infra Discussion § I.B. (noting Government's varied positions as to dates relevant to accrual). Plaintiff responds Decedent could not have been on notice of his claim prior to April or July 2013, when he was diagnosed with prostate cancer, as the critical issue is not simply when he learned he had cancer but when he was on notice of his physician's failure to timely diagnose the disease.[1] See ECF No. 15 at 6; see also ECF No. 1 ¶¶ 20, 21 (alleging Decedent was notified of his extremely elevated PSA levels on April 18, 2013, and diagnosed with Stage IV prostate cancer on July 23, 2013); ECF No. 8-2 at 11 (FTCA Claim characterizing April 18, 2013 as the “date of discovery” and date of diagnosis).

         The Government also argues the claims are precluded because Plaintiff failed to satisfy pre-suit filing requirements imposed by S.C. Code § 15-79-125. Plaintiff responds this statute, which applies to claims for medical malpractice, is superseded by or in conflict with the FTCA's administrative proceeding requirements.

         For reasons set out below, the motion is denied. The court, nonetheless, invites additional briefing on whether Section 15-79-125 applies to claims pursued under the FTCA and will consider staying this action to allow such proceedings as explained in Discussion § II.



         The Complaint alleges Decedent was a patient at Dorn VAMC during the period February 24, 2009, to June 18, 2013. ECF No. 1 ¶ 13 (filed February 8, 2017). During this time, Dr. Naumann, an agent or employee of Dorn VAMC, served as Plaintiff's primary care physician. Id. ¶¶ 12, 13. In 2007, 2008, and 2009, Dr. Naumann ordered blood tests, which revealed elevated levels of prostate specific antigen (“PSA”).[3] Id. ¶¶ 14, 15. Despite these elevated levels, blood tests were not performed in 2010 or 2011. ECF No. 1 ¶ 16. A blood test performed in June 2012 revealed a PSA level of 124.71 that the Complaint describes as “extremely indicative of some disease process in the body.” Id. ¶ 17. Plaintiff alleges Decedent's physician failed to “follow up with an adequate evaluation” following receipt of the June 2012 test, though he “should have realized [the] abnormal test results warranted further follow up in a timely manner.” Id. ¶ 17, 18.

         Decedent's PSA level was checked again in April 2013, revealing a PSA level of 796.53. Id. ¶¶ 19, 20. Decedent was notified of the high PSA level and, after seeing a urologist, was “diagnosed with widely metastatic adenocarcinoma of the prostate” in July 2013. Id. ¶¶ 19-21. He “died on August 7, 2013, as a result of prostate cancer with metastatic disease.” Id. ¶ 22. Plaintiff alleges Decedent would have had a “more favorable outcome” had his elevated PSA levels been properly investigated in 2007, 2008, 2009, or 2012, or properly monitored and investigated in 2010 and 2011. Id. ¶ 23.

         Expert Affidavit.

         The Complaint relies on an expert affidavit to support the alleged breaches of the applicable standard of care. ECF No. 1 ¶ 24.[4] This affidavit opines that actions or inactions by Dr. Naumann or other agents or employees of Defendant contributed to Decedent's injuries (and death) by delaying diagnosis and treatment until Decedent's cancer had progressed to Stage IV. ECF No. 6 ¶ 5. Specific errors include a failure to investigate the rise in Decedent's PSA level between the February 2008 and February 2009 blood tests (id. ¶ 5.a.), failure to recheck PSA levels despite that rise and four subsequent office visits between July 2009 and August 2011 (id. ¶ 5.b), and failure to take action to ensure Decedent followed up with a specialist after his June 2012 test revealed a PSA level of 124.7 (id. ¶ 5.c. (noting this “very high number” indicated “almost certain prostate cancer”)).[5]

         FTCA Claim.[[6]]

         In addition to the Complaint and Expert Affidavit filed by Plaintiff, the Government relies on records of Plaintiff's pre-suit FTCA Claim. These records include the claim form (SF 95) and continuation pages, attached medical records, and related correspondence. ECF No. 8-2 (FTCA Claim dated March 20, 2015, and stamped received by the Veteran's Administration (“VA”) on March 30, 2015); ECF No. 8-3 (supplement to FTCA Claim dated June 1, 2015, and stamped received by the VA on June 15, 2015); ECF No. 8-4 (denial letter). The continuation pages describe the nature, date and time of the event giving rise to the claim as “substandard medical care . . . starting as early as 2008 and continuing until April 18, 2013, date of discovery, when Mr. Grant was diagnosed with Stage IV metastatic prostate cancer.” ECF No. 8-2 at 11. They reflect Decedent's PSA level was 4.09 in February 2007, 4.90 in February 2008, 6.51 in February 2009, and 124.71 in June 2012. ECF No. 8-2 at 12, 13 (noting the “normal” range is from 1.0 to 4.0, though some physicians adjust for age).

         The continuation pages note Dr. Naumann first performed a digital rectal exam (“DRE”) in June 2012, after a blood test revealed extremely high PSA levels, reported the results of the DRE as “Prostate hard; nodule on right, ” and made a urology referral following that examination. Id. at 13. The continuation pages assert the urology referral was not placed on an urgent basis and, consequently, was not scheduled until August 2012. Id. By that time, Decedent was hospitalized for an aortic stent to address an aneurysm. Id. The continuation pages state Decedent cancelled the August appointment as a result of his hospitalization.[7]

         The continuation pages state Dr. Naumann “apparently realized” during Decedent's April 2013 visit that Decedent had not been seen by a urologist following his June 2012 appointment and, again made a urology referral, this time on an urgent basis. Id. at 14. By the time Decedent was seen for this consultation on April 18, 2013, his PSA level was 796.53. Id.

         These pages paraphrase notes by nurse practitioner Dianne Jenner (“Jenner”), made at or around the time of the April 2013 referral, as stating Decedent cancelled his last appointment “as [he] was hospitalized locally then for AAA stenting in Charlotte. Patient adamantly denies any mention of Pca (prostate cancer) history[.]” Id. The continuation pages state Decedent was diagnosed with prostate cancer in late April 2013 following a biopsy on April 22, 2013, and died as a result of his prostate cancer in August 2013.

         The FTCA Claim alleges Dorn VAMC and its agents were negligent in failing to diagnose Decedent's cancer in a timely manner. It relies, in part, on VA standards that recommend yearly PSA tests and DRE for veterans over the age of 50 who request screening. Id. at 15. The claim asserts Decedent requested screening as evidenced by the years in which PSA levels were checked (2007, 2008, 2009, and 2012). It argues Dr. Naumann violated the standard of care by (1) not performing a DRE before accepting the PSA levels in 2008 and 2009 as within a reasonable range based on adjustment for age, (2) failing to request an urgent urology referral in June 2012, and (3) failing to ensure Decedent followed through with the urology referral that was made.

         Medical Records Attached to FTCA Claim.

         Various medical records were attached to the FTCA Claim. Records from February 2008 and March 2009 indicate Dr. Naumann informed Decedent by letter of the results of his blood work, including PSA levels, for both years' tests. ECF No. 8-2 at 26, 33 (reflecting content of letters). Both letters described the PSA levels as “a bit high” but normal when adjusted for age. Id.

         A record of Decedent's June 2012 visit with Dr. Naumann reports a PSA score “over 120, ” a “urology referral, ” and abnormal results from a DRE. Id. at 37, 38, 41. Unlike the records for 2008 and 2009, the record of this visit does not indicate a letter was sent to Decedent advising him of these results or their import.

         A record of Decedent's April 9, 2013 visit with Dr. Naumann includes the following under Assessment/Plan: “Elevated psa: check psa, then urology referral.”[8] Records indicate this urology consultation was completed on April 18, 2013. See Id. at 54 (report of April 18, 2013 PSA testing, ultrasound and biopsy). In her notes relating to this consultation, Jenner described Decedent as 79 years old with “poor memory and thus poor historian” and states he was “referred for markedly elevated PSA near 800 now.” Id. at 50. The notes refer to Decedent's June 2012 PSA as being “above 100” and explain Decedent “cancelled [an earlier referral] appointment as [he] was hospitalized locally then for AAA stenting in Charlotte.” Id. The notes then state “[Patient] adamantly denies any mention of Pca hx even though he states he was seen by local urologist 2 [months] ago and had cysto for LUTS. He brings no outside records and [h]is knowledge of his condition is very limited.” Id. (emphasis added). Jenner's notes report a DRE performed as part of this consultation revealed “markedly enlarged indurated multinodular prostate.” Id. at 50, 51 (also stating patient was interested in diagnosis and treatment). Jenner added a note on April 25, 2013, stating “after multiple phone calls to Pineville doctor['s] office it was determined that [patient] was seen by vascular specialist and not a urologist.” Id. at 52.

         Records indicate a July 23, 2013 radiology consultation at McLeod Regional Medical Center confirmed “multiple areas of metastatic disease.” Id. at 57-59. The consultation letter sent to the Dorn VAMC notes Decedent's PSA went from “4.79 in 2008 to 349 presently” and that he had “obvious Stage IV disease” at the time of consultation. Id. at 59.

         Supplement to FTCA Claim.

         The Government also attaches a June 2015 supplement to the FTCA Claim. ECF No. 8-3 at 1 (letter dated June 10, 2015, and stamped received on June 15, 2015). The cover letter to this supplement asserted, inter alia, that it was inappropriate to adjust the “normal” PSA range upward without performing either a DRE or transrectal ultrasound. Id. The claim form and attached documents appear to be mostly if not entirely duplicative of the original claim form and attachments. The cover letter, however, adds reference to a May 14, 2015 meeting between Decedent's son (Plaintiff), daughter, and the Dorn VAMC Chief of Staff. It states claimants have requested but not yet received a record of that meeting. Id.; see also infra Institutional Disclosure of Adverse Event (record of meeting).

         Denial of Claim.

         The Government denied the FTCA Claim by letter dated November 4, 2015, stating “[b]ecause the alleged negligence here occurred in 2008, this claim is untimely under South Carolina's [six-year] statute of repose.” ECF No. 8-4 at 1.[9] The denial letter also relied on the unavailability of a loss of consortium claim under South Carolina law for a child's loss of a parent.[10] See also infra Request for Reconsideration.

         Jenner Declaration.

         In addition to the administrative claim and attached medical records, the Government relies on a declaration by Jenner. While not so limited, the focus of Jenner's declaration is on events surrounding cancellation of the urology consultation following Dr. Naumann's June 2012 referral:

5. On June 28, 2012, I received [a] request for a urological consult for Bobby Grant, Sr. by Eric Paul Naumann, M.D. . . . As can be seen from Exhibit A, on June 28, 2012, I directed . . . Mr. Grant to be schedule[d] for our clinic within thirty days. As a result, Mr. Gra[nt] was scheduled [for] an appointment on July 30, 2012; however, Mr. Grant telephonically cancel[l]ed that appointment on July 18, 2012. Nevertheless, during that telephone call, Mr. Grant's appointment was rescheduled to September 17, 2012.[11]
6. On August 29, 2012, Mr. Grant and I had a conversation in which he called to cancel his September 17, 2012 appointment. Although I do not remember the specifics of the conversation, I was able to discern that Mr. Grant had a recent abdominal aortic aneurysm, which required surgery. He also indicated that he developed an inability to urinate (acute urinary retention), and as a result he had an indwelling foley catheter.
7. During our conversation on August 29, 2012, I reviewed his medical records, including but not limited to[] his PSA test results, including the most recent result from June 22, 2012 of 124.706 and that a digital rectal exam (DRE) was performed by Dr. Naumann on August 28, 2012[12], which revealed a “hard prostate; nodule towards right.” I was also aware that this was his second requested cancellation for his urological consultation. Given my experience and training as a nurse practitioner in the Urology Department, I was aware that these findings were indicative of prostate cancer. Based upon the foregoing, I stressed to Mr. Grant the need for him to see a urologist due to his significantly elevated PSA results. I also made it very clear to Mr. Grant that there were serious concerns that he had prostate cancer. Mr. Grant indicated that he had plans to follow ...

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