United States District Court, D. South Carolina, Columbia Division
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.
OPINION AND ORDER DENYING MOTION TO DISMISS OR FOR
CAMERON MCGOWAN CURRIE, Senior United States District Judge
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.
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. 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
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.
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.
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”). 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.
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.
Complaint relies on an expert affidavit to support the
alleged breaches of the applicable standard of care. ECF No.
1 ¶ 24. 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”)).
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
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.
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.
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.
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.
Records Attached to FTCA Claim.
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.
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
record of Decedent's April 9, 2013 visit with Dr. Naumann
includes the following under Assessment/Plan: “Elevated
psa: check psa, then urology referral.” 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.
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
to FTCA Claim.
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
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. 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. See also infra Request for
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,
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
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, 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