United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
Page Hood, United States District Court Chief Judge
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)
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.
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.
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.
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.
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)
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
(Doc # 30-5, Pg ID 319)
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)
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.
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