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Smith v. United States

United States District Court, S.D. Indiana, Indianapolis Division

September 17, 2019

MARIE SMITH, Plaintiff,



         This matter is before the Court on a Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 by Defendant the United States of America (“Defendant”) (Filing No. 61), as well as a Motion to Strike filed by the Defendant (Filing No. 67). Plaintiff Marie Smith (“Smith”) filed this lawsuit against the Defendant alleging that she suffered respiratory failure as a result of a narcotics overdose, following hip replacement surgery at the U.S. Department of Veterans Affairs (the “VA”) Richard L. Roudebush VA Medical Center (the “VA Hospital”) in Indianapolis, Indiana. She asserts a single claim for medical malpractice and requests damages for her injuries. The Defendant seeks summary judgment arguing there is no evidence to support the breach and causation elements of a medical malpractice claim. The Defendant also filed a Motion to Strike Smith's January 29, 2019 expert report. For the reasons stated below, the Court denies the Defendant's motion to strike and grants the request for summary judgment.

         I. BACKGROUND

         As required by Federal Rule of Civil Procedure 56, the facts are presented in the light most favorable to Smith as the non-moving party. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The facts relative to Smith's course of medical treatment are undisputed. (Filing No. 73 at 2).

         Smith has a lengthy medical history including diagnoses for heart, kidney, and thyroid issues, fibromyalgia, chronic pain, arthritis in the spine and knees, high blood pressure, post traumatic stress disorder, various allergies, and multiple surgeries (Filing No. 61-36 at 13-16). She began having problems with her right hip in April or May 2015 after having a fall on her stairs. Id. at 29-30.

         On May 8, 2015, Smith was seen as a walk-in patient by primary care physician Dr. Umer Bhatti. Smith reported to Dr. Bhatti that,

[S]he was in her usual state of health till [sic] a month ago at which point she had a fall, a recurrent issue for her, due to her knees giving out. She landed on her hips [sic]. Since that time she has experienced acutely worsened lateral hip pain that is throbbing, worse when lying on the side. The pain is so severe that it interferes with her sleep and limit[s] her daily activities particularly housework.

(Filing No. 61-3 at 1.) She was referred to be seen in the rheumatology clinic for cortisone injections, her prescription for Tramadol was increased, and she was instructed to keep her previously-scheduled appointment with the orthopedics clinic. Id. at 4.

         On May 21, 2015, Smith saw Dr. Saad Tariq in the rheumatology clinic and requested cortisone injections for her hips. It was observed that she had marked tenderness with palpation to the hips. Thus, Dr. Tariq administered cortisone injections to Smith's hips (Filing No. 61-5 at 1-3). A couple of months later, on August 10, 2015, Smith presented to primary care physicians Dr. Asm Chowdhury and Dr. Ahdy Helmy and reported that her chronic pain in her hips and knees was unchanged. She was directed to continue using lidocaine patches, venlafaxine, and Lyrica, and to take Tramadol as needed for pain (Filing No. 61-6 at 1, 5-6).

         Three months later, on November 10, 2015, Smith called the VA Hospital and left a voicemail message because she was experiencing a great deal of pain and her Tramadol was not helping. She requested a new and stronger prescription. A nurse returned her telephone call and learned that Smith had been using morphine approximately a year earlier but had been changed to Tramadol. Smith reiterated that Tramadol was not helping her pain, and she indicated that she wanted a stronger medication. The nurse said that she would forward the request to the doctor. On November 12, 2015, Smith went in person to the primary care clinic, requested different pain medication, and indicated that the Tramadol was making her itch. She was offered an appointment with the doctor for the following week, but she requested to be seen sooner as a walk-in patient. The following day, on November 13, 2015, Smith saw primary care physician Dr. Teela Crecelius for hives from taking Tramadol. She reported that she had taken Tramadol without incident for some time, but then hives developed on her abdomen, back, and arms a few days earlier, and the itching was not relieved by Benadryl. Dr. Crecelius instructed Smith to continue taking Effexor and Lyrica, discontinue taking Tramadol, and begin taking desipramine (Filing No. 61-7 at 1-2; Filing No. 61-8 at 1; Filing No. 61-9 at 1).

         On December 17, 2015, Smith presented to Dr. Steven Hugenberg in the rheumatology clinic with complaints of right hip pain that had developed in the previous few weeks. She reported that it was painful to lie on her side. Dr. Hugenberg provided a steroid injection in her right hip and instructed her to rest her hip for the next 48 hours (Filing No. 61-10 at 1-3).

         On May 25 and 26, 2016, Smith called the VA Hospital complaining of hip arthritis that was flaring up and making it so that she could not sleep on her right side. She requested a consultation with orthopedics (Filing No. 61-11 at 1). On June 1, 2016, Smith again called the VA Hospital and requested to be seen in the orthopedics clinic about her right hip pain. Because she already was being treated by the orthopedics clinic for knee pain, Smith was instructed to call the orthopedics clinic directly for an appointment regarding her hip pain (Filing No. 61-12 at 1). Two days later, on June 3, 2016, Smith was seen in the orthopedics clinic by nurse practitioner Deborah Vandevender (“NP Vandevender”) for her right hip pain. She complained that her pain increased with sitting for long periods, walking, and standing. NP Vandevender obtained x-rays of Smith's hips and recommended a hip arthrogram with a steroid injection (Filing No. 61-13 at 1). On June 21, 2016, Smith received the hip arthrogram with a steroid injection, and following the steroid injection, she reported that her “hip pain decreased from 5/10 to 0/10.” (Filing No. 61-14 at 1.)

         On July 20, 2016, Smith was seen by nurse practitioner Shauna Query in the orthopedics clinic as a follow-up to her hip injection. She reported that the steroid injection provided 80% relief for three weeks, but she was still limited in her activity because of hip pain. After talking with orthopedic surgeon Dr. Mark Webster about the risks and benefits of a total hip replacement, Smith decided to proceed with surgery (Filing No. 61-15 at 1).

         Approximately one month later, on August 18, 2016, Smith underwent the right total hip replacement surgery. The surgery was performed by Dr. Mark Webster, Dr. Nathan Bowers, and Dr. Gregory Slabaugh. The surgery was successful without any complications, and she remained in stable condition (Filing No. 61-16 at 1). In order to manage the pain after the surgery, Smith was ordered ketorolac 15 mg intravenously every six hours, morphine sustained release 15 mg by mouth every twelve hours, and morphine immediate release 15 mg by mouth every four hours as needed (Filing No. 61-17; Filing No. 61-18). In accordance with the medication orders, Smith was administered morphine on the following dates and times: morphine immediate release on August 18 at 4:53 p.m. and on August 19 at 4:05 a.m., 9:15 a.m., and 1:17 p.m.; and morphine sustained release on August 18 at 11:16 p.m. and on August 19 at 9:16 a.m. and 10:34 p.m. (Filing No. 61-19 at 1-3).

         In the early morning hours of August 20, 2016, Smith's oxygen saturations dropped, and she was found to have an altered mental status of lethargy and decreased level of consciousness. The “Rapid Response Team” was called and she was given oxygen and two doses of naloxone (Narcan). Her oxygen levels and responsiveness improved, and she became “more awake.” (Filing No. 61-20; Filing No. 61-21 at 1-2; Filing No. 61-19 at 3-4.) It was noted that Smith had “[a]ltered mental status - 2/2 to morphine respiratory depression most likely given her improvement with narcan and oxygen.” (Filing No. 61-20 at 1.)

         Around 7:00 a.m. on August 20, 2016, Dr. Tyler Smith checked on Smith. He noted that a rapid response had been called for Smith and that she had been administered naloxone with “good clinical response, ” but she still was “quite somnolent.” He noted that her somnolence was likely secondary to her pain medications. Dr. Smith reviewed her laboratory results and noted an elevated creatinine level, so he requested an internal medicine consultation and instructed that Smith's medications be renally dosed (Filing No. 61-22 at 1-3). Later in the morning of August 20, 2016, Smith's oxygen saturations were “okay, ” but she was again unarousable, so she was transferred to the medical intensive care unit for increased evaluation and management (Filing No. 61-23 at 1-2). Internal medicine physician Dr. Utsav Goel noted that Smith's transfer to the medical intensive care unit for reduced arousability was “mainly due to her history of kidney disease . . . compounded with the administration of toradol and losartan post-operatively worsening the morphine clearance given the creatinine bump and GFR reduction.” Id. at 2. Dr. Goel noted that additional testing was being pursued to rule out other processes. Dr. Goel ordered a continuous naloxone infusion and instructed that Smith's medications be renally dosed in consultation with the pharmacy. Id.

         Smith was transferred from the medical intensive care unit back to a medical unit on the morning of August 21, 2016 when her creatinine level had decreased to 1.6 mg/dL, and she was experiencing no confusion and her pain level was stable (Filing No. 61-25 at 1; Filing No. 61-26 at 1-2). By the morning of August 22, 2016, her creatinine level further decreased to 1.1 mg/dL, placing it within normal limits. She had been stable overnight and had no events during the day. Smith did experience more pain when she moved around more (Filing No. 61-28 at 1). On August 23, 2016, it was noted that Smith had no acute events, she was getting around better, and she was doing “well from hip perspective.” (Filing No. 61-29 at 1.) Her record also indicated that her creatinine level was improving with a decrease to 0.9 mg/dL. Id. at 1-2.

         On August 23, 2016, Smith was discharged from the hospital to return home. Her discharge note indicated that, during her hospital stay, she had “developed respiratory distress and acidosis post procedure and required monitoring in MICU. This was likely secondary to narcotics. [She] had elevation of creatinine or kidney function and [her] medications were adjusted.” (Filing No. 61-30 at 1.) She was given tasks to perform until her post-operative follow-up appointment, and she was directed to keep her preset appointments. She was given some new prescriptions and directed to discontinue some other prescriptions, and some of her medication dosages were adjusted. Id. at 1-4.

         Smith called the primary care clinic on August 29, 2016, and explained that she had been told by internal medicine that she needed to get an EKG and follow up with her primary care physician because she may have had a mild heart attack during an overdose (Filing No. 61-31 at 1). On August 30, 2016, a registered nurse scheduled Smith for an appointment in the primary care clinic for September 14, 2016. Id. at 2.

         On September 9, 2016, Smith was seen in the orthopedics clinic for a post-operative appointment. She was walking well with a walker, and she was instructed to continue with her current therapy and to return to the orthopedics clinic in four weeks (Filing No. 61-32). On September 14, 2016, Smith was seen by primary care physicians Dr. Hongwei Liu and Dr. Iftiar Chowdhury. She was noted to be doing well following her discharge from the hospital with some hip pain with activity. Her creatinine level was within normal limits. She was ambulating with a walker, and her energy was improving. She did complain of chest pain that she had been experiencing for a few weeks (Filing No. 61-33 at 1-5). On October 6, 2016, Smith presented to NP Vandevender in the orthopedics clinic for another follow-up appointment. It was noted that Smith was continuing to improve following the surgery with some occasional pain in her hip. Smith asked about resuming her knee injections at her next visit to the orthopedics clinic (Filing No. 61-34).

         On October 17, 2016, the VA received a Notice of Tort Claim from Smith, which asserted a claim for medical malpractice against the VA Hospital and requested $1, 000, 000.00 in damages. In her Notice of Tort Claim, Smith asserted that the VA Hospital's medical negligence led to her suffering hypercarbic respiratory failure, acute kidney injury, a small heart attack, anemia, dehydration, and acidosis with elevated creatinine “due to two different type[s] of morphine narcotic overdose.” (Filing No. 61-35 at 1.)

         On April 18, 2017, Smith filed a Complaint in this Court, asserting a claim for medical malpractice against the Defendant. She asserted that she was “administered an overdose of Morphine . . . . [She] passed out. She also had respiratory failure and kidney injury as a result of the Morphine overdose/allergic reaction. . . . Despite the follow up treatment, the negligent administration of morphine has caused continuing medical problems for [her].” (Filing No. 21 at 2-3.) After answering Smith's Complaint, the Defendant filed a Motion for Summary Judgment, arguing there is insufficient evidence to support a medical malpractice claim.

         II. SUMMARY ...

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