United States District Court, M.D. Tennessee, Nashville Division
COLLEEN HYDER, Administer ad Litem of the Estate of Heather Schanuth, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
FRENSLEY MAGISTRATE JUDGE
WILLIAM L. CAMPBELL, JR. UNITED STATES DISTRICT JUDGE
before the Court are Defendant's Motion for Summary
Judgment (Doc. No. 36), and “Plaintiff's First,
Second & Third Motions for Partial Summary
Judgment” (Doc. No. 81). For the reasons set forth
below, Defendant's Motion for Summary Judgment (Doc. No.
36) is GRANTED, in part, and
DENIED, in part, and “Plaintiff's
First, Second & Third Motions for Partial Summary
Judgment” (Doc. No. 81) is DENIED.
pending before the Court are Defendant's Motion to Strike
Rebuttal Expert Disclosures of Mark Winters, M.D. and Desiree
Washburn, DNP, ACNP-BC, PCP-BC (Doc. No. 79), and Motion to
Strike “Plaintiff's First, Second & Third
Motions for Partial Summary Judgment” (Doc. No. 90).
Motion to Strike Rebuttal Expert Disclosures (Doc. No. 79) is
DENIED, for purposes of summary judgment, as
the Court concludes it is appropriate to consider these
disclosures as they relate to Plaintiff's fraudulent
concealment argument. The Court expresses no opinion on
whether all matters addressed in the experts' affidavits
are admissible at trial. Defendant's Motion to Strike
(Doc. No. 90) Plaintiff's motion for partial summary
judgment is DENIED, as Defendant essentially
presents grounds for denying Plaintiff's motion on the
merits rather than grounds for denying Plaintiff the
opportunity to seek summary judgment on the issues raised.
parties' Joint Motion to Ascertain Status (Doc. No. 94)
is DENIED, as moot.
Factual and Procedural Background
case was originally filed by Heather Guffey Schanuth,
alleging medical malpractice on the part of medical personnel
employed by the Blanchfield Army Community Hospital
(“BACH”) at the Fort Campbell military base.
(Doc. No. 1). Ms. Schanuth alleged BACH personnel failed to
diagnose her breast cancer, which was discovered in 2016 by
another medical provider. After the lawsuit was filed, Ms.
Schnauth died, and the Administrator of her Estate, Colleen
Hyder, was substituted as the plaintiff in this action. (Doc.
Nos. 28, 29, 31, 32, 33, 34).
facts relevant to the issues raised by the parties are as
follows. Heather Schanuth was born on July 9, 1982.
(Plaintiff's Supplemental Response to Defendant's
Statement of Undisputed Material Facts (Doc. No. 82) ¶
1). She was married to Jonathan Guffey, who, during the
relevant period of time, was stationed at Fort Campbell,
Kentucky. (Id.) As a military dependent, Ms.
Schanuth was eligible to receive health care treatment at
BACH until her subsequent divorce from Jonathan Guffey in
late 2014. (Id. ¶ 2). BACH records indicate Ms.
Schanuth no longer received treatment at BACH after October
4, 2012, Ms. Schanuth was seen at BACH, for a
“well-woman exam, ” i.e., an annual
physical, and was examined by Dr. Hau La. (Id.
¶ 3). Ms. Schanuth was 29 years old at the time of this
exam, a little over a month shy of her 30th birthday.
(Id.) As part of the exam, Dr. La examined Ms.
Schanuth's breasts and found a “questionable”
mobile nodule, at “4pm, ½ cm” in her left
breast, and a “firm” non-mobile nodule mass at 6
pm, in her right breast. (Id.) Ms. Schanuth had not
discovered the lumps prior to Dr. La's examination.
(Id.) Ms. Schanuth was still breastfeeding at this
was assigned to BACH's Blue Clinic as a primary care
physician, under the supervision of Major Upneet Nijjar,
M.D., the Officer-in-Charge. (Id. ¶ 5). Dr. La
testified that, during the relevant period, he saw
approximately “twenty something” patients per
day, at 15-minute intervals. (Id.) Dr. La testified
that a breast examination was part of his “well-woman
exam, ” and that Ms. Schanuth expressed concern at that
exam because she had “a family history of breast
cancer, ” in that she had an aunt who had died in her
early 30's after the cancer had metastasized to her
brain. (Id.) Ms. Schanuth said the aunt in question
was her mother's “stepsister or half-sister.”
protocol provided that, for a woman under 30, an ultrasound
would be the first step in diagnosing a palpable breast lump,
and Dr. La, after looking up the recommended guidelines,
decided to schedule an ultrasound. (Id. ¶ 6).
Dr. La testified that if the ultrasound came back normal, his
“next step” would be to see the patient again, go
over the results, and “if need [sic] to re-examine her
again, ” and, if the lump was still palpable, move on
to a radiographic guided fine-needle aspiration.
(Id.) Dr. La testified that he told Ms. Schanuth,
“It could be something bad, could be something benign,
so we're going to do some tests first, initial tests to
see what's going on, and then based on that, we can go
further, if needed after I come back and see you and reassess
you.” (Id. ¶ 7). In his “Assessment
Plan” note of the visit, Dr. La wrote “Further
management after lab result.” (Id.) Ms. Schanuth
testified that Dr. La told her he thought the lump was
“fatty tissue, ” due to her breastfeeding.
ultrasound of Ms. Schanuth's breast was performed
“off post, ” at Gateway Medical Center (now
Tennova) in Clarksville. (Id. ¶ 8). The
ultrasound was not performed until October 2, 2012.
(Id.) By the date of the ultrasound, Ms. Schanuth
had turned 30 years of age. (Id.) The ultrasound was
performed by a Gateway technician, under the supervision of
Dr. Loy Forsythe, a board-certified radiologist at Gateway.
(Id.) The results of the bilateral ultrasound showed
no abnormalities. (Id. ¶ 9). At his deposition,
where the actual ultrasound images were pulled up on a
computer screen, Dr. Forsythe testified that in reviewing the
ultrasound images of the area of concern in Ms.
Schanuth's left breast, he found no lump, lesion, cyst,
or mass of anything other than breast tissue. (Id.)
Dr. Forsythe wrote on the report, “negative study.
Recommend routine screening at age 40.” (Id.)
asked at his deposition if he made any recommendations as to
what Dr. La should do further, Dr. Forsythe replied,
“No, ” because “[i]t's a normal
study.” (Id. ¶ 10). Dr. Forsythe
testified “[g]enerally, there's a disclaimer at the
bottom” of his ultrasound reports that states that
“10 or 15 percent of cancers that aren't seen on
imaging ... are identified in other ways, like physical
examination or surgery.” (Id.) When asked why
the disclaimer did not appear on his report of Ms.
Schanuth's October 2, 2012 ultrasound, Dr. Forsythe
replied, “I don't know. … It typically does
appear, and I've seen it multiple times. I don't see
it here, though.” (Id.) He testified that the
disclaimer - that 10-15% of ultrasound negative imaging can
nonetheless be cancer - should have been on his report, but
was not. (Id.)
Forsythe agreed that “there can be cancer in a breast
with a normal ultrasound, ” and that a
“persistently palpable mass, clinically palpable mass,
is suspicious regardless of imaging findings.”
(Id. ¶ 11). He testified that the “denser
the breast, the higher chance we won't see it [a mass],
” and agreed that “fatty breasts” are
likely to hide cancer. (Id.) Dr. Forsythe testified
that his recommendation to begin regular mammograms at age 40
was “based on the images presented to me, ” and
was “a piece of the pie, ” not intended to be a
plan of care for the analysis of any possible breast lump.
(Id. ¶ 12). When asked if the standard of care
required Dr. La to do anything further in regards to Ms.
Schanuth and the possibility she might still have a palpable
lump, Dr. Forsythe replied that "it depends on the
clinical presentation. (Id. ¶ 13). If she
actually had palpable masses [on reexamination], then, yeah,
he probably should have done more." (Id.) If
the doctor still feels a mass in the breast, even after a
negative imaging study, "he needs to do something about
it." (Id.) Dr. Forsythe testified it was
possible Ms. Schanuth had a breast lump that could not been
seen on ultrasound - and it is also possible she did not.
(Id.) According to Dr. Forsythe, breast tissue
sometimes feels like lumps, and it is possible that the lump
or mass that Dr. La felt in June 2012 was just tissue.
(Id.) When asked if there was any way to reverse
engineer and find the answer to that question now, Dr.
Forsythe answered, “No.” (Id.)
about September 13, 2012, about 2½ weeks before Ms.
Schanuth's ultrasound at Gateway, Dr. La was terminated
from employment at BACH. (Id. ¶ 14). Dr. Nijjar
testified that Dr. La "was supposed to" designate a
surrogate upon his leaving, to take over for the patients
seen by Dr. La for whom studies or tests were outstanding,
and that the surrogate could have been her. (Id.)
Dr. La testified his last day at BACH ended abruptly, and he
did not know who took over his patients. (Id.)
Schanuth called BACH on October 3, 2012, and asked about the
results of the ultrasound. (Id. ¶ 15). Peggy
Mayfield, a nurse, spoke to her on that date, informed her
that she would try to "get results sent for Provider for
review," and said she would "call her back sometime
today or tomorrow." (Id.) Dr. Nijjar accessed
Ms. Schanuth's medical record on October 4, 2012, for
approximately one minute. (Id. ¶ 16). At her
deposition, Dr. Nijjar testified that while she has no memory
of it, this would be consistent with her referencing Ms.
Schanuth's record in connection with the ultrasound
results which had been sent from Gateway. (Id.) If
so, Dr. Nijjar testified she would have "looked at the
prior history, low risk patient, young patient, no
first-degree relatives. I didn't do the exam, but I would
have notified my nurses to alert her and let her know that
the results were negative and to do follow up if anything
changes." (Id.) She testified that her course
of action would have been different if the imaging was not
negative, and would have depended on the recommendations from
the radiologist. (Id. ¶ 16).
Allen, a nurse at BACH, called Ms. Schanuth with the
ultrasound results on October 9, 2012, at 8:35 a.m.
(Id. ¶ 17). At her deposition, Ms. Allen
testified that she read to Ms. Schanuth exactly what Dr.
Forsythe had written on the imaging report, i.e.,
"negative study, recommend routine screening at age
40." (Id.) Ms. Allen noted in the record
"patient verbalized understanding and agrees with
POC," which stands for "plan of care."
(Id.) Ms. Allen testified that she understood Dr.
Forsythe's notes to be a plan of care, as “he made
a recommendation and I read her exactly what he said.”
(Id. ¶ 18). According to Ms. Allen, as an RN,
she could communicate negative results to patients, but not
abnormal results. (Id.) Ms. Allen said Ms. Schanuth
did not ask any questions when she read the results to her.
(Id.) Ms. Allen testified that she was not aware
whether Dr. La was still at BACH at this time, but that
“the results were in the clinical notes for …
any of the providers to see.” (Id.) According
to Ms. Allen, the “next person that sees her or for
follow up visits, they can look at that [the ultrasound
results].” (Id. ¶ 23).
Lunnemann, Ms. Allen's supervisor, testified that
"usually a provider reviews them [imaging results], but
nurses can give normal results . . . they can read reports to
a patient ... they don't typically interpret it . . .
they can just read verbatim a report to a patient."
(Id. ¶ 19).
Schanuth's electronic medical record contains a notation,
under the heading "Disposition," stating,
"Referred for appointment." (Id. ¶
20). This entry is tagged as occurring at the exact same time
(08:35 CDT) as Ms. Allen reading the results to Ms. Schanuth.
(Id.) Ms. Allen was not asked at her deposition
about the entry. (Id.) However, Dr. Nijjar testified
this means Ms. Allen referred Ms. Schanuth to have another
appointment (at which, presumably, the breast study could be
discussed). (Id.) Ms. Lunnemann testified the
notation means Ms. Allen instructed the patient to follow the
original plan of care and follow up with a provider.
(Id. ¶¶ 21, 22). Plaintiff disputes these
interpretations of the notation. (Id.) For purposes
of summary judgment, the Court will not consider this
testimony about the meaning of the notation.
Nijjar, in her testimony, interpreted Dr. Forsythe's
recommendation to have routine mammograms at 40, as a plan of
care because, "the imaging was normal."
(Id. ¶ 24). She testified that such a plan of
care would not preclude considering "further workup for
a persistent mass . . . [D]id the patient still have a
persistent mass? Did she follow up and say something changed?
It depends on … if things were changing or
persisting." (Id.) Dr. Nijjar testified that
"in a low risk patient who had a negative ultrasound
where the radiologist said 'No further followup' -
'no further imaging until the 40-year old routine
mammogram,' I would follow that plan." (Id.
¶ 25). But "[i]t depends on the clinical history of
risk and if the lesion is changing. If the patient . . .
follows up and tells me that things are changing, I would
review the facts and then make a decision based on that . . .
It depends on if the lesion is changing. If . . . certain
lesions have been evaluated by the appropriate imaging and
the imaging was negative, then to me that is a normal study,
normal evaluation . . . unless something changes . . . It
would be for the patient to come back and tell me something
has changed." (Id.) Dr. Nijjar testified that
Ms. Allen, "from what I can see," instructed Ms.
Schanuth "to make a follow up appointment. So, if the
lesion were to change, patient has the responsibility to come
back and let the clinician know that it changed."
deposition, Ms. Schanuth testified that someone from
BACH's Blue Clinic called her with the ultrasound results
and told her "that I had nothing to worry about, it was
just tissues, to do my normal checkup." (Id.
¶ 26). She testified that "fatty tissue" is
what Dr. La told her he thought the lumps he felt on June 4,
2012 were, and that they were common for breast-feeding
mothers. (Id.) She said she had no reason to not
believe what she was told about the ultrasound, "because
I was breast feeding." (Id.) Ms. Schanuth was
not asked at her deposition about the "referred for
appointment" notation on the BACH records.
(Id.) Ms. Schanuth said she stopped breast feeding
at the end of December 2012. (Id. ¶ 27).
Schanuth was asked at her deposition if she was given any
specific follow up instructions from Dr. La, and replied
"just do my normal routine and … I will be due
for a mammogram when I'm 40." (Id. ¶
28). When asked if she was given any other instructions in
October 2012, after the ultrasound, she testified "No.
Just come in on October and - no, there wasn't. There was
emphasizing that he did not know exactly what he would have
done next had he still been employed at BACH when the
ultrasound results came in, Dr. La testified he would have
seen Ms. Schanuth again, go over the ultrasound results with
her, re-examine her, and then, if the lump was still felt,
"do a … radiographic guided fine-needed
aspiration." (Id. ¶ 29). He testified that
he told Ms. Schanuth he would see her again after the
ultrasound, and noted in the record, "Further management
after lab result." (Id.) Dr. La testified that
"I'm sure if she were really concern [sic] about
this, I think the patient has a big - the initiative, too,
and say, 'Hey, … the ultrasound's normal, but
I still want to see the doctor to discuss with the doctor my
concern, maybe.' …" (Id. ¶ 30).
He agreed there is "no definitive, 100 percent answer in
terms of what it [a palpable lump] could be until you have a
tissue biopsy." (Id.) Dr. La said he could not
"say the lump is still there or not yet, but I would say
because I felt a lump, and then also the ultrasound said they
couldn't find a lump, I would definitely want to see her
back to make sure she's okay." (Id. ¶
31). According to Dr. La, one possibility was that the
ultrasound failed to detect the lump that he felt on June 4,
2012, and another possibility is that whatever he felt was no
longer there by the date of the ultrasound, and it went away
on its own. (Id.)
Schanuth testified that, after the 2012 ultrasound results,
she continued to feel the lump in her left breast, and it
continued to get bigger and harder. (Id. ¶32).
She testified that "I just felt it, and it was still
there, and, you know, it was just fatty tissue."
(Id.) Even though she was no longer breastfeeding,
Ms. Schanuth testified, "I figured, you know, just
it's still fatty tissue." (Id.)
Schanuth was seen at BACH on approximately 24 other occasions
from October 2012 until October 2014, when she stopped
getting treatment there as a result of divorcing her service
member husband. (Id. ¶ 24). Plaintiff contends
the lump continued to be listed in Ms. Schanuth's
electronic medical record on the “Problem List”
for providers to see during her visits to BACH during this
period, and the failure on the part of these providers to
perform any follow-up was negligent. Ms. Schanuth testified
that she believes a May 28, 2013 visit with Amy McIntosh, a
nurse practitioner at BACH, was a “well-woman
exam” because a vaginal and breast exam was performed
after Ms. Schanuth advised Ms. McIntosh of the persistent
left breast mass or lump. (Id. ¶¶ 37, 90).
Ms. Schanuth ...