United States District Court, D. Kansas
Ricky Wheeler, personally and as the Special Administrator of the Estate of Gretchen A. Konrad, deceased, and as the father and natural guardian of L.W., a minor, Plaintiff,
United States of America, Defendant.
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE.
Konrad went to the Irwin Army Community Hospital on April 29,
2015, where she delivered an infant by C-section the
following day. Konrad, however, died the same day, and her
husband instituted this negligence action under the Federal
Tort Claims Act, alleging, among other things, that IACH
should have transferred Konrad to another hospital, such as
Topeka Stormont Vail or the Kansas University Medical Center
(KU). The United States has moved for summary judgment on the
failure-to-transfer claim, arguing the plaintiff has failed
to provide expert testimony to support such a claim.
judgment is proper where the pleadings, depositions, answers
to interrogatories, and admissions on file, together with
affidavits, if any, show there is no genuine issue as to any
material fact, and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c). In
considering a motion for summary judgment, the court must
examine all evidence in a light most favorable to the
opposing party. McKenzie v. Mercy Hospital, 854 F.2d
365, 367 (10th Cir. 1988). The party moving for summary
judgment must demonstrate its entitlement to summary judgment
beyond a reasonable doubt. Ellis v. El Paso Natural Gas
Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving
party need not disprove plaintiff's claim; it need only
establish that the factual allegations have no legal
significance. Dayton Hudson Corp. v. Macerich Real Estate
Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
resisting a motion for summary judgment, the opposing party
may not rely upon mere allegations or denials contained in
its pleadings or briefs. Rather, the nonmoving party must
come forward with specific facts showing the presence of a
genuine issue of material fact for trial and significant
probative evidence supporting the allegation. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the
moving party has carried its burden under Rule 56(c), the
party opposing summary judgment must do more than simply show
there is some metaphysical doubt as to the material facts.
"In the language of the Rule, the nonmoving party must
come forward with 'specific facts showing that there is a
genuine issue for trial.'"
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P.
56(e)) (emphasis in Matsushita). One of the
principal purposes of the summary judgment rule is to isolate
and dispose of factually unsupported claims or defenses, and
the rule should be interpreted in a way that allows it to
accomplish this purpose. Celotex Corp. v. Catrett,
477 U.S. 317 (1986).
Konrad arrived at IACH on April 29, 2015, she had protein in
her urine, elevated blood pressure, elevated liver enzymes,
and low platelets. These findings led to a diagnosis of
severe preeclampsia, which places a patient at risk for
postpartum hemorrhage and hypovolemia.
at IACH had labs drawn so that they could better assess
Konrad's platelet count, in part because a low platelet
count indicated a higher risk of bleeding and IACH had
limited blood supply.
nurses recommended that the hospital transfer Konrad to
another facility, such as Stormont Vail or KU, in part
because of concerns that too few nurses were on duty to care
for Konrad as well as the other patients already under
IACH's care. Dr. Brown, one of Konrad's prenatal
physicians, also supported a transfer, based on the risk of
bleeding, and the because the unit was very busy with limited
ultimately Dr. Brown agreed with the decision to keep Konrad.
It is disputed whether this resulted in any actual reduction
in the level of service Konrad received. Defendant contends
that Konrad in any event received one-on-one treatment at
physicians decided not to transfer Konrad. Instead she was
admitted for induction of labor. Apart from considering
Konrad's platelet level, IACH providers did not order a
blood coagulation study. IACH has no written policy,
procedure or guideline for the diagnosis, treatment and/or
management of HELLP (hemolysis, elevated enzymes, and low
next day, Dr. Nicholas performed a C-section. Afterwards,
according to evidence cited by plaintiff, Konrad's blood
pressure slowly decreased, her heart rate slowly increased,
her urine output decreased, and she became extremely sleepy.
The defendant disputes this, noting evidence that
Konrad's blood pressure eventually rebounded, her urine
output was variable, and that Konrad was sipping broth at
Konrad became unresponsive, was resuscitated, and had
emergency exploratory surgery, IACH transferred her to
Bohman and Sibai state that a coagulation profile was
required, and that if performed, it would probably have been
abnormal and shown the risk of postpartum hemorrhage. The
defendant denies plaintiff's assertion that the
coagulation profile was triggered by the blood work showing
low platelet, noting in particular Dr. Subai's deposition
statement that a coagulation profile should have been given
“irrespective of the platelet count and everything
court finds that a coagulation study was justified, at least
in part, on the low platelet results. Dr. Sibai was
subsequently asked how the 1:30 p.m. blood draw
“specifically required the coagulation study, ”
and responded: “The abnormalities in the liver
enzymes.” According to Dr. Bohman's report,
“[a] coagulation profile was required due to the low
platelet count, ” and that the profile should have been
taken the afternoon or evening of April 29. Dr. Bohman
believes that a maternal fetal medicine specialist ...