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Hawver v. Nestorak

United States District Court, E.D. Michigan, Southern Division

May 19, 2017

KAREN HAWVER, Plaintiff,


          Denise Page Hood, United States District Court Chief Judge

         I. BACKGROUND

         On December 21, 2012, Plaintiff Karen Hawver (“Hawver”) filed this case as Personal Representative of the Estate of Patricia Hawver in State of Michigan Jackson County Circuit Court alleging medical negligence. (Doc # 1) Defendants Theresa Nestorak (“Nestorak”) and Center for Family Health, Inc. removed the case to this Court on March 8, 2013. Id. At that time Nestorak and Center for Family Health were replaced with the United States because the Defendants were deemed to be employees of the U.S. Public Health Service and therefore eligible for coverage under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b). (Doc # 2)

         The Government first moved to dismiss this action on May 7, 2013. (Doc # 11) This Court dismissed the action, finding that Hawver failed to bring her suit within the two-year statutory window, that equitable tolling was unavailable, and that the Court lacked subject matter jurisdiction. (Doc # 17, Pg ID 247) The Court relied on Rogers v. United States, 675 F.2d 123, 124 (6th Cir. 1982), which held that there is no equitable exception to the jurisdictional prerequisites of the Federal Tort Claims Act. Hawver appealed. (Doc # 21) After this Court issued its Order, the Supreme Court resolved a circuit split and held that the FTCA's statute of limitations requirements are nonjurisdictional and subject to equitable tolling. United States v. Wong, 135 S.Ct. 1625, 1638 (2015). The Sixth Circuit then remanded the case back to this Court to determine whether equitable tolling saves Hawver's claims. (Doc # 24, Pg ID 261) The Court ordered limited discovery on this issue, which the parties have completed. This matter is now before the Court on the Government's Motion to Dismiss, filed on October 19, 2016. (Doc # 30) A Response and Reply were filed. (Doc # 33; Doc # 35) The Court held a hearing on February 8, 2017.

         The facts are as follows. On December 31, 2009, 73-year-old Patricia Hawver visited Center for Family Health in Jackson, Michigan and was treated by nurse practitioner Nestorak. (Doc # 30-3) Patricia Hawver reported that she had fallen three days earlier and that her pain was getting worse each day. Her medical records indicate that she suffered from several chronic health conditions at that time. Id. Nestorak prescribed pain medication. Id.

         On January 10, 2010, Patricia Hawver visited the emergency room at Allegiance Health, a hospital in Jackson, Michigan because she was having back pain. (Doc # 1, Pg ID 7) She reported that she had fallen approximately two weeks earlier. Id. X-rays of her spine were negative for fractures, and she was diagnosed with having a contusion and prescribed pain medication. Id.

         On January 11, 2010, Patricia Hawver went back to Center for Family Health and was again examined by Nestorak. Id. at 8. Patricia Hawver reported the history of her fall and indicated that the pain had moved from her left to her right side. Id. She reported feeling nauseous because of the pain, as well as aggravated pain due to changing positions and lifting a heavy object. (Doc # 30-4, Pg ID 313) Nestorak ordered blood tests and indicated that Patricia Hawver had hepatomegaly and may need a CT scan. (Doc # 1, Pg ID 8) Nestorak scheduled a follow-up appointment for January 18, 2010. The lab results, which became available later on January 11th, showed elevated levels of blood urea, nitrogen, creatinine, alk phosphatase, SGOT, SGPT, white blood cell count, and platelet count. Id. According to the Complaint, no one from Center for Family Health contacted Patricia Hawver regarding these abnormal results. Id.

         On January 14, 2010, Patricia Hawver went back to the emergency room at Allegiance Health. Id. at 9. She was observed to have low blood pressure, jaundice, and mental status changes. Id. Allegiance Health ran tests and found several gallstones in her common bile duct, as well as a distended gallbladder with surrounding fluid. Id. Patricia Hawver underwent a sphincterotomy and a cholecystectomy to remove her gallbladder. Id. Complications arose from the surgery, and Patricia Hawver suffered an infarction. Id. She fell into a coma and was transferred to the intensive care unit at Allegiance Health. Id. On January 27, 2010, she was transferred to Care Link where she spent approximately two and a half months receiving palliative care. Id. She was discharged home and passed away on April 12, 2010, which Hawver alleges was due to her untreated gallstone disease and pancreatitis. Id. Patricia Hawver's death certificate states that she died of arrhythmia from a CVA. (Doc # 33-2)

         At the time of her death, Patricia Hawver had five adult children, some of whom are disabled. (Doc # 30-5, Pg ID 317-18) Hawver (who is not disabled) is one of Patricia Hawver's children; she was 45 years old and living in Ann Arbor, Michigan at the time of her mother's death. Hawver has her own accounting business and prior to that she was the finance director of several local non-profit organizations. Id. at 317. Hawver was in Jackson, Michigan looking after her mother from mid-January 2010 through mid-April 2010. Id. at 318. She did not request medical records or visit Center for Family Health during that time. (Doc # 30-6, Pg ID 347) According to an Affidavit of Hawver, she was devastated by her mother's death and incapable of dealing with her estate throughout 2010:

I was not capable of thinking about dealing with my mother's estate during the calendar year of 2010 because of 1) having to care for her at her home with help from Hospice care; 2) my grief; 3) my having to deal with funeral arrangements; 4) my being the only sibling who was capable of dealing with the multiple family problems, especially the situation with my sister Amy and her children; and my hectic life generally.

(Doc # 30-5, Pg ID 319)

         At the time of her mother's death, Hawver was in a long-term relationship with Beth Sherman (“Sherman”), her now spouse and a social worker. Sherman had professional experience requesting medical records. At her deposition, Sherman testified that Hawver never asked her to request medical records in 2010. (Doc # 30-7, Pg ID 385-88)

         In 2010, Hawver and Sherman were involved in probate court proceedings through which they eventually became guardians to Hawver's sister's two children. They retained an estate planning and probate attorney, Jane Bassett (“Bassett”). In the fall of 2010, Hawver met with Bassett and expressed concern regarding the circumstances of her mother's death. (Doc # 30-5, Pg ID 319) Bassett suggested that Hawver become personal representative of her mother's estate and request her medical records. Id. Hawver was appointed personal representative of the estate in January 2011. Id.

         Bassett referred Hawver to Ferris & Slater, P.C., Hawver's attorneys in the instant matter, and Hawver met with Heidi Slater-Ferris (“Slater-Ferris”) on April 19, 2011. (Doc # 30-5, Pg ID 319) She was told to bring medical records, but Hawver had only requested records from Care Link at the time of the meeting with Slater-Ferris. (Doc # 30-6, Pg ID 359-62) Slater-Ferris told Hawver that she would need to obtain all of the medical records. (Doc # 30-5, Pg ID 320) Hawver asserts that following this meeting she was ...

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