Western District court dismisses lost chance of survival count in wrongful death suit against federal government

By John Sammon | Nov 9, 2018

KANSAS CITY – The U.S. District Court for the Western District of Missouri on Nov. 1 dismissed count one of a suit against the federal government over allegations that faulty installation of a catheter device at a Veterans’ Administration (VA) clinic caused a man’s death.

Judge Beth Phillips awarded the defendant's motion to partially dismiss, citing lack of subject matter.

That leaves plaintiff Patricia Harris pursuing a wrongful death claim (count two) in the lawsuit against the U.S. States of America, filed on June 1.

Harris filed the suit under the Federal Tort Claims Act (FTCA) on behalf of her late husband, Gilbert Harris.

The order states the decedent resided at a nursing home and had a medical history of multiple sclerosis, traumatic brain injury and neurogenic bladder. On May 12, 2016, Gilbert Harris was admitted to a VA urologic clinic for a bladder disorder. Medical personnel at the facility removed an indwelling catheter and inserted a new indwelling penile catheter.

After returning to the nursing home, Gilbert Harris was found to suffering from fever and blood clotting at the end of his penis and in an attached collection Foley bag.

He was transported to the emergency room at the Nevada Regional Medical Center in Nevada, Missouri and then back to the VA for further treatment. A CT scan showed the catheter had inflated and the emergency room department replaced it. Gilbert Harris returned nursing where he died two weeks later from sepsis.

Plaintiff Patricia Harris filed a lawsuit and an SF-95 form claiming she was entitled to damages from her deceased husband’s wrongful death in the amount of $1.25 million. Harris claimed as a result of the installation of an inflated catheter balloon into the penile urethra and the failure to recognize the error, VA officials had caused the death of Gilbert Harris.

Phillips' order said the woman did not enter an amount on the SF-95 form estimating personnel injury, but simply entered the total $1.25 million as the amount of her claim.

Attorneys for the U.S. moved to dismiss count one (lost chance of survival) because the plaintiff did not present this claim in submitting the SF-95.

Harris opposed the motion, contending she had sufficiently exhausted her administrative remedies as required by the FTCA.

However, federal counsel argued the SF-95 submitted by Harris only made a claim for wrongful death.

Further, the court opinion said claims by the plaintiff that she was making a claim for lost chance of survival and that the VA understood she was on the basis of correspondence was unconvincing.

“(The) plaintiff’s representation she was the decedent’s spouse adequately apprised the agency (VA) of her authority to bring the wrongful death claim,” the order stated. “However a lost chance of survival claim is a claim belonging to the deceased, brought by a personal representative on their behalf.”

Phillips added the correspondence from the VA did not demonstrate the plaintiff apprised the VA she was asserting a personal injury claim on behalf of the estate of the deceased, or that she had the authority to act as the personal representative of the decedent's estate.

Thus, the court determined Harris had failed to provide the VA evidence of her authority to bring a lost chance of survival claim.      

Count one the lost chance of survival was dismissed from the suit by the U.S. Western District Missouri Court, leaving the wrongful death allegation the remaining point of issue in the case.              

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