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Hook v. United States

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

June 30, 2017

DANIEL HOOK, Plaintiff,


          MARK A. GOLDSMITH United States District Judge.

         Plaintiff 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.

         I. BACKGROUND

         Hook is 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.[1] 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).

         The 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. ¶¶ 17-18.

         On July 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.


         A 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).

         Once 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 summary judgment.”).

         III. ANALYSIS

         Although 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)).

         “[T]he 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 ...

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