United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING DEFENDANT'S MOTION
FOR PARTIAL SUMMARY JUDGMENT (DKT. 43)
A. GOLDSMITH United States District Judge.
Daniel Hook brought this action against the United States
under the Federal Tort Claims Act (“FTCA”), 28
U.S.C. § 2671 et seq., asserting a claim for
medical malpractice in connection with his treatment for
abdominal pain at the Veteran's Administration
(“VA”) Medical Center in Ann Arbor, Michigan. The
Government filed a motion for partial summary judgment (Dkt.
43), arguing that Hook is barred from pursuing pain and
suffering damages while he was intubated and unconscious, as
well as consequential damages for his alleged shortness of
breath. A hearing on the motion was held on June 6, 2017. For
the reasons stated below, the Court grants the motion.
an 84-year-old former Marine who presented with abdominal
pain at the emergency room of the VA Medical Center in Ann
Arbor, Michigan on July 17, 2011. Def. Br. at 1; Def.
Statement of Material Facts (“SMF”) ¶¶
9-11. After Hook informed intake personnel that
he was suffering from nausea and abdominal pain, and that he
had not had a bowel movement for two and a half days, Dr.
Jamie Sutton ordered x-ray imaging of Hook's abdomen.
Def. SMF ¶¶ 11-12. Hook was treated for
constipation with an enema and was discharged the same day
with instructions to contact the Ann Arbor VA if his
condition worsened. Id. ¶ 12. According to
Hook, Dr. Sutton did not follow up on the x-ray on July 17
and, by failing to do so, failed to diagnose a small bowel
obstruction. See generally Compl. at 3-4 (Dkt. 1);
Pl. Resp. at 4 (Dkt. 44).
following day, July 18, Hook presented at the Henry Ford
Wyandotte Hospital with complaints of constipation and
abdominal pain. Def. SMF ¶ 13. A physical examination
was performed and the medical records indicate that
Hook's bowel sounds were normal. Id. ¶ 14.
While waiting for a CT scan of his abdomen and pelvis, Hook
began vomiting and aspirating. Id. ¶ 15. Hook
required intubation and mechanical ventilation for aspiration
pneumonia and Adult Respiratory Distress Syndrome
(“ARDS”). Id. Hook was also immediately
sedated. Id. Hook was intubated and on a ventilator
from July 18 to August 3 and sedated with a variety of
narcotics from July 19 to August 2. Id. ¶¶
20, an exploratory laparoscopic surgery was performed.
Id. ¶ 16. During the surgery, an adhesion
between the small bowel and a previous hernia repair was
manipulated, which resolved Hook's abdominal issues.
Id. No bowel was removed during the surgery.
Id. Hook was then transferred to the Henry Ford
Detroit Hospital on July 30. Id. ¶ 17. Hook
suffered a variety of complications during his
hospitalizations, but he was eventually discharged on August
16. Id. ¶¶ 18, 21.
STANDARD OF DECISION
motion for summary judgment under Federal Rule of Civil
Procedure 56 shall be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists
when there are “disputes over facts that might affect
the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (“Where the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for
trial.”). “[F]acts must be viewed in the light
most favorable to the nonmoving party only if there is a
‘genuine' dispute as to those facts.”
Scott v. Harris, 550 U.S. 372, 380 (2007).
the movant satisfies its initial burden of demonstrating the
absence of any genuine issue of material fact, the burden
shifts to the nonmoving party to set forth specific facts
showing a triable issue of material fact. Scott, 550
U.S. at 380; Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The nonmoving party “must do more than
simply show that there is some metaphysical doubt as to the
material facts, ” Scott, 550 U.S. at 380
(quoting Matsushita, 475 U.S. at 586), as the
“mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment.”
Id. (quoting Anderson, 477 U.S. at 247-248)
(emphasis in original); see also Babcock & Wilcox Co.
v. Cormetech, Inc., 848 F.3d 754, 758 (6th Cir. 2017)
(“A mere scintilla of evidence or some metaphysical
doubt as to a material fact is insufficient to forestall
the doctrine of sovereign immunity generally precludes suits
against the United States without its consent, the FTCA
provides a limited waiver of that immunity, permitting
“liability against the federal government ‘to the
same extent as a private party for certain torts of federal
employees acting within the scope of their
employment.'” Kennedy v. U.S. Veterans
Admin., 526 F.App'x 450, 453 (6th Cir. 2013)
(quoting United States v. Orleans, 425 U.S. 807, 813
(1976)); see also 28 U.S.C. § 2674 (“The
United States shall be liable, respecting the provisions of
this title relating to tort claims, in the same manner and to
the same extent as a private individual under like
circumstances, but shall not be liable for interest prior to
judgment or for punitive damages.”). Because the FTCA
constitutes consent to suit, as opposed to creating a cause
of action, it is “fundamentally limited to cases in
which a private individual would be liable under like
circumstances.” Kennedy, 526 F.App'x at
453 (quoting Premo v. United States, 599 F.3d 540,
544 (6th Cir. 2010)).
extent of the United States' liability under the FTCA is
generally determined by reference to state law.”
Kernstock v. United States, 559 F.App'x 428, 431
(6th Cir. 2014) (quoting Brown v. United States, 583
F.3d 916, 919-920 (6th Cir. 2009)). In this case, the cause
of action is one for medical malpractice. Under Michigan law,
Hook must establish the following four elements:
(1) the appropriate standard of care governing the
defendant's conduct at the time of the purported
negligence, (2) that the defendant breached that standard of
care, (3) that the plaintiff was injured, and (4) that the
plaintiff's injuries were the proximate result of the
defendant's breach of the applicable standard of care.
Id. (quoting Craig ex rel. Craig v. Oakwood
Hosp., 684 N.W.2d 296, 308 (Mich. 2004)); see
also Mich. Comp. Laws ...