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Wheeler v. United States

United States District Court, D. Kansas

November 26, 2018

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.



         Gretchen 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.

         Summary 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).

         In 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).

         Findings of Fact

         When Konrad arrived at IACH on April 29, 2015, she had protein in her urine, elevated blood pressure, elevated liver enzymes, and low platelets.[1] These findings led to a diagnosis of severe preeclampsia, which places a patient at risk for postpartum hemorrhage and hypovolemia.

         Providers 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.

         IACH 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 staffing.

         But 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 IACH.

         IACH 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 platelet) syndrome.

         The 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 6:30 p.m.

         After Konrad became unresponsive, was resuscitated, and had emergency exploratory surgery, IACH transferred her to Stormont Vail.

         Drs. 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 else.”

         The 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 ...

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