United States District Court, S.D. Ohio, Western Division
J.D., a minor, by and through JESSICA ROWE, et al., Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE
J.D., a minor, by and through his next friend Jessica Rowe,
and Jessica Rowe bring this action for medical negligence
under the Federal Tort Claims Act ("FTCA"), 28
U.S.C. § 2671, et seq. This matter is before the
court on plaintiffs' motion for partial summary judgment
(Doc. 52), defendant's response (Doc. 61), and
plaintiffs' reply memorandum (Doc, 62).
2008, Ms. Rowe was diagnosed with hypertension and was
prescribed Lisinopril by a doctor in South Carolina. (Dep. of
Jessica Rowe; Doc. 57 at 46-47). Lisinopril is a medication
that, when used by pregnant women, can cause kidney
dysfunction in the unborn fetus. (Dep. of Michael J.
Armentrout; Doc. 55 at 108-09). In 2010, Ms. Rowe moved to
Ohio and changed her primary care provider to NP DeLong.
(Doc. 57 at 21, 57). Unknown to Ms. Rowe, she became pregnant
around late summer or early fall of 2012. In October 2012,
Ms. Rowe saw NP DeLong for a gynecological appointment. (Dep.
of Trisha DeLong; Doc. 54 at 103). NP DeLong knew that Ms.
Rowe was sexually active, was not on birth control, had not
menstruated since March 2012, and continued to take
Lisinopril. (Id. at 110-11). NP DeLong did not
perform a pregnancy test and failed to provide Ms. Rowe with
information concerning the risks, side effects, and
contraindications of taking Lisinopril to a woman of
childbearing age. (Id. at 110-11, 115-16, 118). NP
DeLong admitted that the failure to discuss the risks and
contraindications of Lisinopril and perform a pregnancy test
at a gynecological visit fell below the standard of care for
a patient in Ms. Rowe's circumstances. (Id. at
74-76, 119). NP DeLong's supervising physician, Michael
Armentrout M.D., also admitted that a medical provider
prescribing Lisinopril to a woman of child-bearing years and
failing to inform her of the risks and benefits falls below
the standard of care. (Doc. 55 at 28, 91-94).
DeLong concluded that additional gynecological treatment was
needed and referred Ms. Rowe to Dr. Robert Flick for further
evaluation. (See Doc. 54 at 136; Doc.
57 at 76). At a December 10, 2012 appointment, Dr. Flick
failed to discover the pregnancy and Ms. Rowe continued to
take Lisinopril. (See Dep. of Robert Flick, M.D.;
Doc. 60 at 27, 35, 50-53). In late February 2013, Ms. Rowe
went to the emergency room ("ER") with pain in her
abdomen and lower back. (Doc. 57 at 84-85). ER personnel
administered a pregnancy test, which was positive.
(Id. at 85). Ms. Rowe's son was born in May 2013
with a non-functioning left kidney and cysts on his right
kidney. (Id. at 101-02).
motion for summary judgment should be granted if the evidence
submitted to the court demonstrates that there is no genuine
issue as to any material fact and that the movant is entitled
to judgment as a matter of law. Fed.R.Civ.P. 56; see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
"Summary judgment is only appropriate 'if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law.'" Keweenaw Bay Indian Comm. v.
Rising, 477 F.3d 881, 886 (6th Cir. 2007) (quoting
Fed.R.Civ.P. 56(c)). "Weighing of the evidence or making
credibility determinations are prohibited at summary
judgment-rather, all facts must be viewed in the light most
favorable to the non-moving party." Id.
Civ. P. 56(e) provides that when a motion for summary
judgment is made and supported as provided in this rule, an
adverse party may not rest upon the mere allegations or
denials of his pleading, but his response, by affidavits or
as otherwise provided in this rule, must set forth specific
facts showing that there is a genuine issue for trial.
See also Celotex Corp., 477 U.S. at 322.
moving party with the burden of proof typically the
plaintiff-faces a "substantially higher hurdle."
Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002).
As held by the Sixth Circuit, when the party with the burden
of proof moves for summary judgment, he or she "must
show that the record contains evidence satisfying the burden
of persuasion and that the evidence is so powerful that no
reasonable jury would be free to disbelieve it."
1346(b)(1) of the Federal Tort Claims Act provides a limited
waiver of sovereign immunity for personal injury, when the
[C]aused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of
his office or employment, under circumstances where the
United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the
act or omission occurred.
28 U.S.C. § 1346(b)(1). "[T]he FTCA does not create
liability, it merely waives sovereign immunity to the extent
that state-law would impose liability on a 'private
individual in similar circumstances;" Myers v.
U.S., 17 F.3d 890, 899 (6th Cir. 1994) (quoting 28
U.S.C. § 2674).
or omission in this action occurred in Ohio and, thus, the
Court must look to Ohio law to determine whether a private
person would be liable under similar circumstances. Under
Ohio law, liability based on medical negligence requires
proof of four elements: (1) a duty running from the defendant
to the plaintiff; (2) a breach of that duty by the defendant;
(3) damages suffered by the plaintiff; and (4) a proximate
causal relationship between the breach of duty and the
damages. Schirmer v. Mt. Auburn Obstetrics &
Gynecologic Assoc, Inc.,8 ...