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District Court Excludes Expert and Grants Partial Summary Judgment in Veteran Suicide Case – Health Law and Regulation Update Blog Post by Taylor Revenew
Health Law and Regulation Update Blog Post by Taylor Revenew.
Raymond George Green, a Gulf War veteran, died from a self-inflicted gunshot wound after suffering for years with post-traumatic stress disorder. His surviving spouse, Michele Green, and children Na’Kesha Green, Raven Simon Green-Harris, Raymond George Green Jr., and Dontair Wilson filed a medical malpractice action against the federal government, alleging his VA doctors were negligent. The family sought $4 million in damages.
The decedent was treated by multiple physicians and other professionals at the Veterans Administration Medical Center (“VAMC”). The events giving rise to the lawsuit began in 2011 when decedent was diagnosed with PTSD and prescribed a variety of medications. The decedent returned to the clinic several times, with his care and medication evolving throughout his treatment. In 2016, the decedent’s spouse unsuccessfully attempted to speak with the decedent’s physicians at the VAMC regarding some concerning behaviors of the decedent. Three months later, decedent’s spouse called the Eisenhower Army Medical Center (EAMC) to report concerns about the decedent. The decedent was examined by emergency medical technicians and was determined to be competent, and thus could not be involuntarily admitted to an emergency room or mental health facility. Decedent’s spouse and the now administrator of the estate visited the VAMC to discuss the decedent’s mental health, and the social worker urged them to bring decedent to the clinic. The decedent, however, declined care. Approximately two months later, the decedent died from a self-inflicted gunshot wound to the head.
The surviving spouse and the administrator of the estate filed the required administrative forms to the agencies, along with a demand letter from their attorney. In their claim, they alleged wrongful death and personal injury for damages. The DVA denied their claim, causing the surviving spouse and the administrator of the estate, along with three additional plaintiffs (the decedent’s three other children) to file the action.
The defendant moved to exclude the testimony of plaintiffs’ second proffered expert and moved for summary judgment on all of plaintiffs’ claims. The Court granted the defendant’s motion to exclude the plaintiffs’ second expert, agreeing with the defendant’s argument that the expert could not define the appropriate standard of care applicable to this case. The Court found his testimony was not sufficiently reliable, not sufficiently based on reliable principles, and would confuse the trier of fact. Thus, the Court held this expert’s testimony failed to withstand this Daubert challenge.
The Court then analyzed defendant’s various summary judgment theories. The Court granted defendant’s motion for summary judgment as to the additional plaintiffs (the three children), holding that these plaintiffs failed to exhaust their administrative remedies under the Federal Tort Claims Act. The Court lacked subject matter jurisdiction over these plaintiffs. The Court agreed with the defendant that the three additional plaintiffs also lack standing to bring several of their claims. Only the decedent’s surviving spouse is entitled to bring a cause of action for wrongful death here per Georgia’s wrongful death statute. Additionally, only the administrator of the decedent’s estate is entitled to bring a cause of action for the survivorship claims here. Against the defendant’s argument, the Court held that the administrator of the estate was entitled to bring a claim for negligent infliction of emotional distress, which the Court found would be a part of the survival claim as this tort survives to the personal representative of the deceased plaintiff. The Court granted defendant’s summary judgment on plaintiffs’ claims for punitive damages, holding that the United States shall not be liable for punitive damages. The only remaining claims are those brought by the surviving spouse and the administrator of the estate relating to the medical malpractice action.
In its motion for summary judgment, the defendant argued it did not breach the standard of care because it did not have the authority to involuntarily treat the decedent. The Court granted defendant’s motion and found that the Georgia statute only allows for involuntary hospitalization when a physician has personally examined a patient within the preceding 48 hours. Here, the VAMC physicians did not personally examine the decedent at that point.
Defendant argued it could not monitor the decedent’s prescription intake or ensure he received adequate follow-up examinations. Defendant further argued the decedent lacked a provider-patient relationship with one of the physicians at the VAMC and that any alleged malpractice was not the proximate cause of the decedent’s death. The Court denied summary judgment as to this claim, finding that plaintiffs’ expert’s testimony created a jury question regarding whether the physician’s alleged negligent failure to follow up with the decedent was a proximate cause of the decedent’s suicide.
Take-homes: (1) Any attempt by plaintiffs to curtail or sidestep the required procedural administrative steps in an FTCA action can be combatted with a motion for summary judgment. Defendants should be on the lookout for ensuring plaintiffs satisfy the jurisdictional prerequisite of filing a proper claim with the correct administrative agency prior to instituting a federal suit. (2) Georgia’s wrongful death statute is strictly construed. This was further cemented in the recent Georgia Court of Appeals case, Northeast Georgia Medical Center, Inc. v. Metcalf, 2022 WL 872220 (Ga.App. 2022). Ensuring proper parties to these actions is essential. (3) Understanding and complying with O.C.G.A. 37-3-41, examination and treatment for mental illness, is key. The procedural safeguards contained in that provision are there for the purpose of ensuring the individual’s rights are not eroded in the name of medical expediency. (4) An individual’s claim for wrongful death and an estate’s claim for the decedent’s pain and suffering are distinct causes of action. (5) Lastly, make sure your expert is able to intelligently articulate the applicable standard of care for your case!
The case is Michelle Green, Surviving Spouse of Raymond George Green, et al., v. United States of America, 2022 WL 966864 (S.D.Ga., 2022).
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