Bramberger v. Toledo Hospital

897 F. Supp. 2d 587, 2012 WL 4434134, 2012 U.S. Dist. LEXIS 136486
CourtDistrict Court, N.D. Ohio
DecidedSeptember 24, 2012
DocketCase No. 3:10 CV 1626
StatusPublished
Cited by3 cases

This text of 897 F. Supp. 2d 587 (Bramberger v. Toledo Hospital) is published on Counsel Stack Legal Research, covering District Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bramberger v. Toledo Hospital, 897 F. Supp. 2d 587, 2012 WL 4434134, 2012 U.S. Dist. LEXIS 136486 (N.D. Ohio 2012).

Opinion

MEMORANDUM OPINION

KATZ, District Judge.

Plaintiff Erna Bramberger (“Plaintiff’), as personal representative of the estate of the deceased Johann Bramberger (“Mr. Bramberger”), brings this medical malpractice and wrongful death action pursuant to the Federal Tort Claims Act (“FTCA”) and state law. Plaintiff seeks damages for Defendants’ alleged failure to diagnose Mr. Bramberger’s fatal lung cancer until five years after a chest x-ray revealed a nodule in his left lung. The matter is currently before the Court on Defendant United States’ (“the government”) Fed. R. Civ. P. 12(b)(1) and 12(b)(6) motion to dismiss, as well on as the government’s Fed. R. Crv. P. 56(c) motion for summary judgment. Also pending are [590]*590Fed. R. Civ. P. 12(b)(6) motions to dismiss, or alternatively, Fed. R. Civ. P. 56(c) motions for summary judgment filed by Defendants Toledo Hospital, Northwest Ohio Cardiology Consultants (“NWOCC”), and NWOCC physician Dr. Jeffrey McClure.

For the reasons stated herein, the government’s motion to dismiss is granted and its motion for summary judgment is denied as moot. Toledo Hospital, NWOCC, and Dr. McClure’s motions to dismiss and motions for summary judgment are denied.

I. Background

On January 14, 2002, Mr. Bramberger was seen by Dr. Mark Koehl at the Family Medical Center (“Medical Center”) in Temperance, Michigan. Importantly, the Medical Center is deemed a federal entity and Dr. Koehl is deemed a federal employee as to all pertinent dates. Thus, while Plaintiff originally named Dr. Koehl and the Medical Center as Defendants, the United States substituted itself as a Defendant in place of the Medical Center and Dr. Koehl.

During Mr. Bramberger’s January 14 visit, Dr. Koehl ordered a chest x-ray, which was taken at the Medical Center the same day. Also that day, Dr. Koehl interpreted the x-ray as showing fluid in Mr. Bramberger’s lungs, and therefore diagnosed Mr. Bramberger with congestive heart failure. Dr. Koehl then admitted Mr. Bramberger to Toledo Hospital in Ohio that day, and personally called Toledo Hospital from his office in Temperance to issue admission orders and to order that another chest x-ray be taken upon Mr. Bramberger’s admission. The parties do not dispute that the x-ray taken at the Medical Center does not show a nodule in Mr. Bramberger’s lung.1

Per Dr. Koehl’s orders, Mr. Bramberger was admitted to Toledo Hospital on January 14, and a chest x-ray was taken at the hospital the same day. Also that day, Radiologist Dr. Robert Disalle reviewed the x-ray and found a small nodule in Mr. Bramberger’s left lung. While the transcribed x-ray results were not verified by Dr. Disalle until two days later, Doc. 59-2 at 5, Dr. Disalle made a handwritten note on January 14 indicating that he found a nodule and that he recommended a CT scan. Also on January 14, one of the radiology department’s clerical workers, Ramona Wilkerson, telephoned the nurse on Mr. Bramberger’s hospital floor to report the x-ray results. Doc. 74-1. Wilkerson does not recall precisely what information she relayed, but stated at deposition that such calls are common, and that “I probably would have said, ‘I’m calling with the results of Johann Bramberger’s chest x-rays, and it says ‘CHF with small bilateral pleural effusion, small nodule. Recommend CT chest follow up.’ ’ ” Doc. 78 at 13:17-14:6. Wilkerson does not recall whether she also faxed the information to the nurse. Doc. 78 at 14:17-20.

On January 16, Dr. Koehl visited Mr. Bramberger at Toledo Hospital. Dr. Koehl stated at deposition, however, that he does not recall Dr. DiSalle’s report of a nodule and recommendation for a CT scan as having been in Mr. Bramberger’s chart. Dep. Dr. Koehl, Doc. 77 at 89:3-7 (hereinafter, “Koehl Dep.”). Dr. Koehl does not remember looking at the chart and saying “where is my chest x-ray report that I ordered,” id. at 34:24-36:3, 89:12-15, but at [591]*591deposition Dr. Koehl was sure the report was absent because if he saw the recommendation, he would have ordered a CT scan at that time. Id. at 89:8-14. Dr. Koehl also stated that he would have expected the x-ray to be completed by his January 16 hospital visit, but could not recall whether he inquired as to the results. Id. at 89:20-24.2 Nevertheless, Dr. Koehl assessed Mr. Bramberger, and based on the fact that Mr. Bramberger’s lungs “sounded much clearer,” Dr. Koehl wrote “[c]ongestive heart failure improved” on Mr. Bramberger’s chart. Id. at 88:22-89:2. Mr. Bramberger was discharged from Toledo hospital the next day on January 17, 2002. Dr. DiSalle’s recommended CT scan was never completed.3

In February 2007 — five years after Dr. DiSalle’s radiology report indicated a nodule and recommended a CT scan- — -Mr. Bramberger was diagnosed with lung cancer. He was also informed at that time of a medical record indicating that he should have been aware of the cancer in 2002. Pltf. Dep., Doc. 59-3 at 67:9-71:2 (hereinafter, “Pltf.Dep.”). Mr. Bramberger died of lung cancer in Michigan on May 3, 2008.

On April 30, 2010, Plaintiff filed suit in Ohio’s Lucas County Court of Common Pleas, naming Dr. Koehl, the Medical Center, Toledo Hospital, NWOCC, and Dr. McClure as Defendants. The government, pursuant to the FTCA, removed the case to this Court and filed a Notice of Substitution of itself in place of Dr. Koehl and the Medical Center. Doc. 2. This Court then dismissed the government as a Defendant due to the FTCA’s requirement that Plaintiff file an administrative claim prior to suing the government in tort. See 28 U.S.C. § 2401(b); Doc. 28. Thereafter, Plaintiff filed the administrative claim, and upon expiration of the government’s allotted time for response, Plaintiff filed an amended complaint alleging a FTCA claim against the government. Doc. 52. The claims against Toledo Hospital, NWOCC, and Dr. McClure remained a part of Plaintiffs amended complaint. Defendants subsequently filed the instant motions to dismiss and motions for summary judgment.

II. Discussion

A. Government’s Motion to Dismiss Plaintiffs FTCA Claim

The government brings a Fed.R.Civ.P. 12(b)(1) motion to dismiss Plaintiffs FTCA claim. As explained below, the government challenges the Court’s subject matter [592]*592jurisdiction on grounds that a choice of law analysis reveals Plaintiffs noncompliance with the FTCA’s statute of limitations.

1. Motion to Dismiss Standard

Generally, a Fed. R. Civ. P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction falls into one of two categories: facial attacks and factual attacks. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994) cert.

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Bluebook (online)
897 F. Supp. 2d 587, 2012 WL 4434134, 2012 U.S. Dist. LEXIS 136486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bramberger-v-toledo-hospital-ohnd-2012.