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Price v. United States

United States District Court, S.D. Ohio, Eastern Division

January 16, 2020

Raymond Price, Plaintiff,
United States of America, et al., Defendants.

          Chelsey M. Vascura Magistrate Judge



         This matter is before the Court on a Motion for Summary Judgment filed by Defendant Ambulatory Care Solutions of Ohio, LLC.[1] (ECF No. 31.) Plaintiff filed a Memorandum in Opposition to the Motion (ECF No. 33), and Defendant filed a Reply (ECF No. 41). The matter is now ripe for decision.


         Plaintiff Raymond Price, a veteran, is a patient of the Department of Veterans Affairs (“VA”) Medical Center in Belmont County, Ohio (the “VA-Belmont”). (Amended Compl. ¶ 35, ECF No. 25.) The VA-Belmont is a part of the VA-Pittsburgh Health System (“VAPHS”). (Id. ¶¶ 2-3.) In March 2015, the VA entered into a contract with Ambulatory Care Solutions, LLC, (“ACS”) to provide primary care services at the VA-Belmont (the “Contract”). (U.S. Mot. Dismiss Ex. A, ECF No. 27-1, at 1, 9-10.) At some point, ACS formed Defendant Ambulatory Care Solutions of Ohio, LLC, (“ACS of Ohio”) to fulfill these contractual obligations and to operate the VA-Belmont. (ECF No. 51, ¶ 2.) During the relevant time period, until at least November 2016, the providers at the VA-Belmont were employed by ACS of Ohio. (Christina Hood Aff. ¶ 4, ECF No. 31-1.)

         Pursuant to this Contract, ACS was responsible for “comply[ing] with all relevant VA policies and procedures, including those related to quality, patient safety and performance . . . .” (ECF No. 27-1, at 7.) These policies and procedures included VHA Directive 2009-019 and VHA Directive 1088 (collectively, the “Directives”), which govern the transmission of results for diagnostic tests at VA clinics. (Amended Compl. Exs. 2, 4, ECF Nos. 25-2, 25-4.)

         Mr. Price has been a patient of the VA-Belmont for several years. (Pl. Opp. to Def. Mot. for Summ. J. Ex. 8, ECF No. 33-9.) He has gone to the VA-Belmont for his routine annual lab work, and he plans to continue to do so. (Id.) As a part of his annual lab work, the VA-Belmont tests Mr. Price's Prostate-Specific Antigen (“PSA”) levels because of his family history of cancer. (ECF No. 25 ¶¶ 36-37.) PSA is a protein produced by the prostate, and elevated levels of PSA (above four ng/ml) indicate a risk of prostate cancer. (Id. ¶¶ 37-38.)

         On October 2, 2015, Mr. Price had blood drawn at the VA-Belmont, and a nurse practitioner sent his blood to the VAPHS laboratory for testing, including a PSA test. (Id. ¶¶ 40, 43, 44.) Mr. Price left the VA-Belmont without receiving the results of his PSA test. (Id. ¶¶ 41- 42.) VAPHS completed the PSA test later that same day and, at some point, notated in Mr. Price's medical record that he had an elevated PSA level of 61.98 ng/ml. (Id. ¶¶ 42, 44.)

         On October 9, 2015, VAPHS sent Mr. Price's October 2, 2015, blood test results to his regular primary care provider, who works outside of the VA system. (Id. ¶ 48; Amended Compl. Ex. 5, ECF No. 25-5.) This transmission did not include the results of the PSA test. (ECF No. 25 ¶ 49.)

         Over one year later, on October 28, 2016, Mr. Price returned to the VA-Belmont for another PSA test. (Id. ¶ 54.) This test showed that Mr. Price's PSA level had further increased to 145.36 ng/ml. (Id.) On November 16, 2016, Mr. Price visited the VA-Belmont where he learned for the first time that his PSA levels were elevated. (Id. ¶¶ 55, 58.)

         Shortly after Mr. Price learned this information, he sought treatment from an oncologist, Dr. Gregory Merrick, at Wheeling Hospital. (Id. ¶ 60.) On December 13, 2016, Dr. Merrick diagnosed Mr. Price with advanced prostate cancer. (Id. ¶¶ 60, 63) According to Dr. Russell Pachynski, another oncologist, Mr. Price's prostate cancer “progress[ed] and spread to a substantial and significant degree” between the time of the October 2, 2015, PSA test and the October 28, 2016, test. (Amended Compl. Ex. 7, ECF No. 25-7 ¶ 6.)

         On November 15, 2017, Mr. Price submitted an administrative claim of medical malpractice to the VA. (ECF No. 25 ¶ 66.) On June 13, 2018, the VA denied Mr. Price's claim on the grounds that the relevant VA-Belmont employees were contract employees[2], precluding liability for the United States. (U.S. Mot. Dismiss Ex. B, ECF No. 27-2.) Mr. Price contends that he did not, and could not have known with the exercise of reasonable diligence, that the providers at the VA-Belmont were employed by ACS.[3] (ECF No. 25 ¶ 76.) He contends that the VA-Belmont providers never told him that they were employed by ACS, that he always believed he was receiving care from the VA, and that he never knew about the existence of ACS until receiving the VA's June 13 letter. (Raymond Price Aff. ¶¶ 3-6, ECF No. 25-6.)

         On August 23, 2018, Mr. Price filed a Complaint against the United States and against ACS. (Compl., ECF No. 1.) On March 7, 2019, Mr. Price filed an Amended Complaint. (ECF No. 25.) The Amended Complaint pleads allegations of negligence against ACS (Count One) and the United States (Counts Two and Three). (Id. at 21-28.) The parties have since agreed to substitute ACS of Ohio for ACS as the appropriate defendant. (ECF No. 51.)


         Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant has the burden of establishing there are no genuine issues of material fact, which may be achieved by demonstrating the nonmoving party lacks evidence to support an essential element of its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir.1993). The burden then shifts to the nonmoving party to “‘set forth specific facts showing that there is a genuine issue for trial.'” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed.R.Civ.P. 56). When evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970).

         A genuine issue exists if the nonmoving party can present “significant probative evidence” to show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993). In other words, “summary judgment will not lie . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (concluding that summary judgment is appropriate when the evidence could not lead the trier of fact to find for the non-moving party).

         III. ANALYSIS

         Mr. Price alleges in Count One that ACS of Ohio, “by and through its employees and agents, ” acted negligently by failing to: follow VA policies and directives, inform Mr. Price of his elevated PSA levels in a timely manner, develop and implement appropriate policies and procedures to ensure timely communication of lab results, and train and supervise its employees regarding the communication of lab results. (ECF No. 24 ¶ 87.) In other words, Mr. Price alleges that ACS of Ohio is vicariously liable for the alleged medical negligence of its employees. At its core, ACS of Ohio argues in its Motion for Summary Judgment that Mr. Price's claim is barred by Ohio's one-year statute of limitations on medical negligence claims. (Def. Mot. Summ. J., at 7-9, ECF No. 31.)[4] However, ACS of Ohio is only correct if Mr. Price's claims are “medical claims” under Ohio law.

         A. Whether Count One is a “Medical Claim” under Ohio Law

         Pursuant to § 2305.113 of the Ohio Revised Code, a “medical . . . claim” must be brought “within one year after the cause of action accrued.” Ohio Rev. Code Ann. § 2305.113(A) (West 2019). A “medical claim” is “any claim that is asserted in any civil action against a . . . hospital”[5]or any employee or agent of a “hospital . . . that arises out of the medical diagnosis, care, or treatment of any person.” Id. § 2305.113(E)(3). In turn, “hospital” is defined as “any person, corporation, association, board, or authority that is responsible for the operation of any hospital” or “clinic that employs a full-time staff of physicians practicing in more than one recognized medical specialty and rendering advice, diagnosis, care, and treatment to individuals” while excluding “any hospital operated by the government of the United States or any of its branches.” Id. § 2305.113(E)(1).

         There are three words or phrases in this statutory scheme that are relevant to ACS of Ohio's Motion for Summary Judgment-“hospital, ” “medical claim, ” and “within one year after the cause of action accrued.” The Court addresses the first two here and in the next section analyzes the third.

         The first issue is whether ACS of Ohio is a “hospital” as defined in § 2305.113(E)(1). Mr. Price argues that he has filed a claim against a “healthcare clinic” rather than a hospital. (ECF No. 33, at 14.) This argument is unavailing. “Hospital” is specifically defined as any authority that is responsible for operating a “clinic” that employs full-time physicians, practices in multiple medical specialties, and renders advice, diagnosis, care, and treatment. All available evidence shows that ACS of Ohio fits this definition.

         Mr. Price next argues that ACS of Ohio is not a “hospital” because of § 2305.113(E)(1)'s exclusion of any facilities “operated by the government of the United States . . . .” The Court has already concluded that the United States did not “control” (and thus did not “operate[]”) the VA-Belmont. (See ECF No. 42, at 6-7.)[6] Because ACS of Ohio was responsible for operating a healthcare clinic that met the requirements of the statute, ACS of Ohio is a “hospital” under § 2305.113.

         Given that ACS of Ohio is a hospital, the next question is whether Count One is a “medical claim” under Ohio law. At the core of Count One-and, indeed, the Amended Complaint-is the alleged failure by the VA-Belmont to provide Mr. Price timely notice of his 2015 PSA test results. As a result, whether this constitutes a “medical claim” depends on whether this allegation “arises out of” Mr. Price's “medical diagnosis, care, or treatment.” The Court finds that it does.

         To “arise” means “[t]o originate[, ] to stem (from)[, ]” or “[t]o result (from).” Arise, Black's Law Dictionary (10th ed. 2014). The terms “diagnosis” and “treatment” relate “to the identification and alleviation of a physical or mental illness, disease, or defect.” Browning v. Burt, 613 N.E.2d 993, 1003 (Ohio 1993). And “care, ” in this context, “means the prevention or alleviation of a physical or mental defect or illness.” Id. Accordingly, Mr. Price's claim regarding the VA-Belmont's failure to notify him of his 2015 PSA test results is ...

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