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Hyder v. United States

United States District Court, M.D. Tennessee, Nashville Division

January 10, 2020

COLLEEN HYDER, Administer ad Litem of the Estate of Heather Schanuth, Plaintiff,




         I. Introduction

         Pending 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.

         Also 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).

         Defendant's 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.

         The parties' Joint Motion to Ascertain Status (Doc. No. 94) is DENIED, as moot.

         II. Factual and Procedural Background

         This 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).

         The 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 2014. (Id.)

         On June 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 time. (Id.)

         Dr. La 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.” (Id.)

         BACH 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.”[1] (Id.) Ms. Schanuth testified that Dr. La told her he thought the lump was “fatty tissue, ” due to her breastfeeding. (Id.)

         The 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.)

         When 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.)

         Dr. 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.)

         On or 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.)

         Ms. 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).

         Carmen 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).

         Rebecca 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).

         Ms. 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.

         Dr. 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." (Id.)

         At her 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).

         Ms. 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 not." (Id.)

         While 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.)

         Ms. 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.)

         Ms. 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. ΒΆΒΆ 37, 90). Ms. Schanuth ...

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