Articles Posted in U.S. 7th Circuit Court of Appeals

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Augutis had reconstructive surgery on his foot at a VA hospital. Complications led to amputation of his leg. Augutis claims that the amputation was the result of negligent treatment and filed an administrative complaint with the Department of Veterans Affairs. The VA denied the claim. Augutis timely requested reconsideration on March 21, 2011. On October 3, the VA informed him that it had not completed reconsideration, but that suit could be filed or additional time could be permitted to allow it to reach a decision. The letter noted that Federal Tort Claims Act claims are governed by both federal and state law and that some state laws may bar a claim or suit. Days later, the VA denied reconsideration. The letter explained that a claim could be presented to a district court within six months, but again noted that state laws might bar suit. Augutis filed suit on April 3, 2012, more than five years after the surgery, but within six months of the VA’s final dismissal. The district court dismissed under Illinois’s statute of repose, 735 ILCS 5/13‐212(a), which requires that a medical malpractice claim be brought within four years of the date of the alleged malpractice. The Seventh Circuit affirmed, rejecting an argument that the state limitations period was preempted by the FTCA period. View "Augutis v. Uniited States" on Justia Law

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After researching qui tam actions and meeting with an attorney, Dr. Watson placed an ad in a Sheboygan newspaper soliciting minor Medicaid patients who had been prescribed certain psychotropic medications. The ad referred to participation in a possible Medicaid fraud suit and sharing in any recovery. Meyer responded and entered into an agreement with Watson, who never met Meyer’s child, but obtained the child’s records by using an authorization stating that Meyer was requesting the records “[f]or the purpose of providing psychological services and for no other purpose whatsoever….” Watson searched the records for “off‐label” prescriptions written for a purpose that has not been approved by the FDA. Off‐label use is common, but generally not paid for by Medicaid. In the child’s records, Watson identified 49 prescriptions that he alleged constituted false claims to the U.S. government. The district court rejected Watson’s suit under the qui tam provision of the False Claims Act, 31 U.S.C.3729(a)(1)(A), reasoning that expert testimony was necessary to prove essential elements of the case and Watson had not named experts. While characterizing Watson’s tactics as “borderline fraudulent,” the Seventh Circuit reversed, citing the district court’s “overly rigid” view of the causation and knowledge elements of the claim. View "Watson v. King-Vassel" on Justia Law

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During her birth in 2004, the 11-pound baby became lodged in the mother’s pelvis, so that nerves in her shoulder were injured (brachial plexus injury), resulting in a limited range of movement in her right arm A few months later her mother consulted a lawyer, who recommended against suing. Fifteen months later the mother consulted another lawyer; he agreed to represent her, but 16 months later, he withdrew. Finally, in 2010, the mother filed a malpractice suit against the Erie Family Health Center and the Center’s nurse-midwives who had provided her prenatal care. Erie is a private enterprise, but it receives grant money from the U.S. Public Health Service, so that its employees are deemed federal employees, 42 U.S.C. 233(g)(1)(A),(g)(4) and tort suits against it or its employees can be maintained only under the Federal Tort Claims Act, 42 U.S.C. 233(a),(g)(1)(A). The district court found the claim time-barred. The Seventh Circuit affirmed. While the limitations period for a tort suit under Illinois law would be eight years for a minor, 735 ILCS 5/13-212(b), the extension of the statute of limitations for a child victim does not apply to claims governed by the Federal Tort Claims Act. View "Arteaga v. United States" on Justia Law

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Welch called 911. A Wishard ambulance arrived. Welch was 34 weeks pregnant. Paramedics ascertained that her water broke and she had a prolapsed umbilical cord. After consulting with her obstetrician’s office, paramedics contacted the Beech Grove emergency room and transported her there. Beech Grove did not have an obstetrics facility. Rather than delivering the baby, the physician sent Welch in the Wishard ambulance to another hospital, where the baby was delivered by Caesarean section. He had suffered hypoxia resulting in severe brain damage. Plaintiffs alleged that Wishard violated the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. 1395dd. The district court granted defendants summary judgment. The Seventh Circuit affirmed, finding that the situation did not fit the definition of “come to the emergency room:” that an individual in an ambulance owned and operated by the hospital is deemed to have come to the emergency room unless the ambulance is operated under communitywide emergency medical service protocols that direct it to transport the individual to a hospital other than the owner. The Wishard ambulance was operating under EMS protocols when it transported the plaintiffs. Although the definition was adopted after the incident, it was merely a clarification. View "Beller v. Health & Hosp. Corp. of Marion Cnty. IN" on Justia Law

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Defendant, a medical doctor, was convicted of distributing fentanyl, a Schedule II narcotic controlled substance, 21 U.S.C. 841(a)(1) and obtaining morphine by misrepresentation, fraud, and deception, 21 U.S.C. 843(a)(3) and was sentenced to 48 months. The Seventh Circuit affirmed.The government was not required to present expert testimony, in light of overwhelming evidence of defendant's unprecedented and undocumented prescriptions of profoundly addicting and potent painkillers, which he personally administered in multiple, private houses and hotel rooms The district court properly enhanced his sentence for obstruction of justice because defendant lied to the U.S. Drug Enforcement Administration agents. View "United States v. Pellmann" on Justia Law

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A newborn suffered severe brain damage because doctors failed to promptly diagnose and treat an infection contracted at his 2003 birth. He was born prematurely and certain tests, normally done during pregnancy, were not performed by the federally-subsidized clinic where the mother received care. The clinic and its doctors are deemed federal employees under the Federally Supported Health Centers Assistance Act, 42 U.S.C. 233(g)-(n), and shielded from liability under the Federal Tort Claims Act. In 2005 the parents filed suit in state court and, in 2006, HHS denied an administrative claim for damages. Within six months of the denial the case was removed to federal court. In 2010, the district court held that the claim was filed within the two year statute of limitations under the FTCA (28 U.S.C. 2401(b)) and awarded more than $29 million in damages against the government. The Seventh Circuit affirmed. A claim only accrues when a plaintiff obtains sufficient knowledge of the government-related cause of his injury; the plaintiffs were reasonably diligent. View "Arroyo v. United States" on Justia Law

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In 2001 plaintiff received prenatal care from a clinic that receives federal funds. Its physicians and the clinic are deemed federal employees for purposes of malpractice liability, so that the United States could be substituted as a party to a suit. 28 U.S.C. 2679(d)(1); claims would be governed by the Federal Tort Claims Act, and neither would face liability. For complex situations, the clinic contracted with UIC for specialists. Plaintiff's baby died following a difficult delivery. She sued the clinic, its doctor, the delivery hospital, and two UIC physicians who assisted. The U.S. Department of Health and Human Services denied claims for damages. The district court entered summary judgment for the UIC doctors under the Illinois Good Samaritan Act, which shields physicians who provide "emergency care without fee to a person," 745 ILCS 49/25, but declined to dismiss the case against the government, which had been substituted for the clinic. The Seventh Circuit reversed, first holding that the district court had derivative jurisdiction. Although the salaried UIC doctors did not receive a direct financial benefit from the delivery, their employer billed the clinic for services. There was evidence that one doctor submitted a billing form with respect to the delivery; the other made a "bad faith" decision not to bill. View "Rodas v. Seidlin" on Justia Law

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An inmate sued, claiming that the prison medical director was deliberately indifferent to his need for eye surgery. He was diagnosed in 2001, with pterygia, a thin film covering the eye, which significantly obstructs his vision and apparently causes itching and irritation. The prison denied requests for surgery. The inmate alleged that there was an unofficial policy of denying off-site care to death row inmates. Medical recommendations were mixed; several doctors recommended the surgery. Following a remand of dismissal of his suit, the inmate got surgery in 2008, and filed a second suit, based on the delay The district court entered summary judgment, in favor of the doctor. The Seventh Circuit vacated, finding that the evidence remains insufficient to eliminate fact disputes. The medical recommendations are enough to create genuine fact disputes that the pterygia had become objectively serious and that the doctor intentionally or with deliberate indifference ignored the condition. View "Ortiz v. Webster" on Justia Law

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Plaintiff suffered a stroke and claimed that the VA hospital failed to properly diagnose and take appropriate measures. He and his wife sued under the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671-80, and also sued their attorney for malpractice. The district court ruled in favor of the government and the attorney. The Sixth Circuit dismissed an appeal as forfeited because plaintiff had supplied only a transcript of the testimony of the government's expert witness Fed. R. App. P. 10(b)(3) and had failed to supplement. The district court properly refused to sanction plaintiff's attorney for ex parte communication with treating physicians. The court also properly credited the government expert and held that the hospital's actions were not the proximate cause of the stroke. View "Morisch v. United States" on Justia Law