United States District Court, D. South Carolina, Rock Hill Division
OPINION AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT
OF DEFENDANT UNITED STATES (ECF NO. 123)
CAMERON McGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.
and Order Denying Motion for Summary Judgment of Defendant
United States Through this action, Zekiya Knox
(“Plaintiff”) seeks recovery for alleged medical
malpractice by a variety of medical providers involved in her
care between September 2013 and May 2014. Plaintiff alleges
these providers failed to properly and timely diagnose and
treat her underlying condition, Crohn's disease, and that
this failure led to the development of sepsis. Plaintiff
further alleges various Defendants failed to properly treat
her sepsis and that the collective errors led to
Plaintiff's loss of three limbs. Plaintiff asserts a
single claim for medical negligence against all Defendants,
though the specifically alleged errors vary between
Defendants. See ECF No. 88 (Second Amended
matter is before the court on motion of Defendant United
States' for summary judgment based on the statute of
limitations. ECF No. 123. The United States argues Plaintiff
filed her tort claim with the applicable agency on June 14,
2016, more than two years after the statute of limitations
allegedly accrued no later than June 6, 2014. ECF No. 123-1
at 8. Plaintiff filed a response in opposition, arguing her
claim did not accrue in May or June of 2014 and her
administrative claim was timely filed. ECF No. 133.
Alternatively, she relies on equitable tolling. Finally, she
argues the continuous treatment rule applies and the claim
against the United States accrued only after her treatment at
NCFMC ended. Id. at 17. The United States filed a
reply. ECF No. 141.
reasons set forth below, the court finds as a matter of law
equitable tolling and the continuous treatment doctrine do
not apply. Nonetheless, the motion is denied as there remains
a genuine issue of material fact as to when Plaintiff knew or
should have known of the cause of her injury. More
specifically, the critical, unresolved issue is at what point
Plaintiff knew, or in the exercise of due diligence, should
have known, that undiagnosed and/or untreated Crohn's
disease led to her bowel perforation, fistulas, and sepsis.
alleges injury after abdominal pain, which she alleges was
never properly treated, developed into “significant
damage to her intestines and caused a life threatening
infection, ” sepsis. ECF No. 88, Sec. Am. Compl. ¶
37. Plaintiff originally presented to the Piedmont Emergency
Room (“Piedmont ER”) on September 13, 2013,
complaining of persistent abdominal pain. Id. at
¶ 9. She was seen by Defendant Dr. Warden, who performed
a physical examination and ordered lab testing, ultrasound of
the lower abdomen, and CT scan. Id. at ¶¶
9-11. Plaintiff was discharged from the ER with narcotic pain
killers and an instruction to follow up with a
gastroenterologist. Id. at ¶ 14. On September
19, 2013, Plaintiff was seen by Defendant Dr. Garretson, a
gastroenterologist, who scheduled and conducted a colonoscopy
on September 25, 2013. Id. at ¶¶ 15-16.
Dr. Garretson was unsure if his findings represented
“appendicitis or IBD” (id. at ¶
16), so he referred Plaintiff to a surgeon, Defendant Dr.
Espinal, that same day. Id. at ¶ 17. Dr.
Espinal ruled out acute abdominal process and ordered a CT
scan, but Plaintiff alleges she was never informed of that
appointment. Id. at ¶¶ 18, 18.1. The next
day, September 26, Plaintiff went to see April Logan, a
physician's assistant at NCFMC, a federally funded
community health care center, complaining of abdominal pain.
Id. at ¶ 19. Ms. Logan ordered an ultrasound,
which was performed September 30, 2013 and showed
“prominent bowel loops . . .with a somewhat thickened
appearance.” Id. at ¶¶ 19.1, 20. Ms.
Logan took no action in response to this finding.
Id. at ¶ 20.
was next seen by Ms. Logan on January 14, 2014, for abdominal
pain. Id. at ¶ 24. Ms. Logan referred Plaintiff
back to Dr. Espinal, who saw Plaintiff in February
2014. Plaintiff was prescribed prednisone at
that appointment and “the records reflect there was to
be an appointment scheduled with Dr. Garretson, [but] this
was never made known to Ms. Knox.” Id. at
¶ 26. On March 21, 2014, Plaintiff returned to NCFMC
complaining of abdominal pain. Id. at ¶ 28. The
physician she saw ordered another ultrasound, which was
performed on April 4, 2014, and “noted tubular
structures and encouraged a CT scan.” Id. at
¶¶ 29, 30. Plaintiff was to follow up at NCFMC on
April 14 for ultrasound results, but instead returned to the
Piedmont ER by ambulance that day. Id. at ¶ 31.
Tests and examination showed an elevated white count, lower
quadrant pain, and “what was then believed to be
bacteria in her urine.” Id. at ¶ 32. Dr.
Warden “remarked her presentation was similar to her
presentation in September, ” and accessed those
records, but the only treatment rendered was a prescription
for an antibiotic for a urinary tract infection. Id.
at ¶¶ 33-34. Defendant Fleet, a physician's
assistant in the ER, ordered an additional antibiotic after
reviewing results of a vaginal culture on April 18, 2014.
Id. at ¶ 36.
4, 2014, Plaintiff returned to the Piedmont ER. Id.
at ¶ 37. She was diagnosed with “either an
infected inflamed appendix or a flare up of IBD that was
never properly discovered or treated.” Id. She
went into septic shock and ultimately lost three limbs.
Id. at ¶ 39.
medical records were attached by the parties to the motion
and responses. The records are from Plaintiff's May 2014
hospitalization at Carolinas Medical Center
(“CMC”) and later treatment at NCFMC.
to CMC. Plaintiff was admitted to CMC on May 6, 2014
as a transfer from Piedmont. ECF No. 123-13 at 1. The
discharge diagnoses from Piedmont were: “Crohn disease
with exacerbation; small bowel perforation with multiple
fistulas, status post exploratory laparotomy with partial
resection of small bowel, fistula repair and ileostomy; acute
respiratory failure; systemic inflammatory response due to
infection with evolving multiorgan system failure; severe
metabolic acidosis with lactic acidosis; septic shock;
cardiogenic shock, echocardiogram noting severe reduced left
ventricular function with estimated ejection fraction of 10%;
anemia related to dilution primarily; hypoglycemia;
History and Physical on admission to CMC notes she “has
a history of chronic abdominal pain and has previously been
evaluated by a surgeon for chronic abdominal pain and a
history of Crohn's disease.” ECF No. 123-14. Past
Medical History is listed as “possible Crohn's
disease.” Id. The assessment/plan noted she
was an “18-year-old female with history of possible
Crohn's disease who presented in septic shock on multiple
vasopressors him [sic] a status post midline
laparotomy with ileocecectomy and end ileostomy
formation.” Id. at 4. She was taken to the
operating room for emergency surgery “to explore the
possibility of pelvic sepsis.” Id.
14, 2014, she was seen by an orthopedist who noted her
history and diagnosis as “s/p SBO and perforation with
peritonitis and sepsis requiring vasopressors and subsequent
sever (sic) dry gangrene to bilateral feet and hands.”
ECF No. 65-1 at 28. A May 16, 2014 vascular consultation
is an unfortunate 19-year-old female who was transferred from
an outside facility in septic shock and on 3 pressors. An
ileocecectomy and ileostomy was performed in the outside
facility however throughout that night she clinically
deteriorated. An echocardiogram was performed at some point
that showed she had an EF of less than 10%. She was then
transferred here for further management. Since then she's
had multiple abdominal surgeries. She remained in shock for
several days. It was noticed at some point that she started
to develop dry gangrene of her right fingers and toes. She
recently has clinically improved to the point she is not on
Id. at 23. An addendum stated Plaintiff was
“too sick for any interventions. Her extermities (sic)
are non viable and well beyond any recovery at this point.
Care should be life over limb at this point.”
Id. On May 17, 2014, a Surgery Attending Progress
note stated Plaintiff was “progressing
adequately.” Id. at 21.
21, 2014, Plaintiff was “informed about her care”
by the medical staff. ECF No. 123-16. She had previously been
asking questions but her parents were preventing the medical
team from speaking to Plaintiff about her care. Id.
The same day, Plaintiff's discharge plan was discussed
with her interdisciplinary team and family. ECF No. 123-17.
The hospital note stated “Ortho explained anticipated
amputation to all 4 extremities at various levels. Pt. asked
appropriate questions. Timing of surgery is not yet
progress note signed on May 21, 2014, notes Plaintiff was
“seen in follow up peritonitis and C diff colitis in
setting of Crohn. Events of family meeting reviewed from this
AM. Pt made aware of her clinical situation.” ECF No.
65-1 at 9. Under “Impression and Plan” are noted
Polymicrobial sepsis and peritonitis with enterococcus, MRSA,
Kleb, Citrobacter, Clostridium from bowel perforation s/p
Question of right atrial thrombus with emboli to limbs vs
vasoconstrictor ischemic . . .
diff colitis. .