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Houston v. United States

United States District Court, N.D. Illinois, Eastern Division

October 22, 2014

MICHAEL HOUSTON, Plaintiff,
v.
UNITED STATES OF AMERICA, ET AL., Defendants.

MEMORANDUM OPINION AND ORDER

JEFFREY T. GILBERT, Magistrate Judge.

This matter is before the Court on Plaintiff Michael Houston's ("Plaintiff's") Motion to Compel production of certain information withheld by Defendant United States of America ("Defendant") [Dkt. #30] that Plaintiff contends is relevant to Defendant's Motion to Dismiss [Dkt.#4]. For the reasons set forth below, Plaintiff's motion is denied.

I. BACKGROUND

Plaintiff originally brought this suit in the Circuit Court of Cook County, Illinois, County Department, Law Division, against James Pecard ("Pecard"), a physician assistant ("PA"); Komed Holman Health Center ("Komed Holman" or "clinic"), a division of Near North Health Service Corporation ("NNHSC"); NNHSC; Vintage Pharmaceuticals, LLC d/b/a Qualitest Pharmaceuticals ("Qualitest"); and three unknown medical personnel defendants. Defendant removed the case to this Court pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2679 and 42 U.S.C. § 233, and Defendant was substituted as the sole federal party defendant in place of Pecard, Komed Holman, and NNHSC. Qualitest remains a party defendant as well.

1. Plaintiff's Complaint[1]

In his Complaint, Plaintiff alleges that in July 2011 he sought treatment at Komed Holman for pain in his right toe. Pecard, a PA at Komed Holman, attributed Plaintiff's pain to gout and prescribed him allopurinol, a generic drug manufactured by Qualitest. Plaintiff tried explaining to Pecard that he did not believe he had gout, but Pecard nonetheless placed Plaintiff on allopurinol for treatment of gout without a differential diagnosis and without proper monitoring for an adverse reaction. Pecard did not consult with a supervising physician before prescribing allopurinol and no physician reviewed the prescription. Pecard did not have a physician examine Plaintiff before he prescribed Plaintiff allopurinol. Pecard told Plaintiff he was a physician, and the clinic's nurses, receptionists, and other employees stated Pecard was a physician.

Plaintiff alleges that Pecard did not warn him of the risks associated with taking allopurinol, including Stevens-Johnson syndrome ("SCS"), blindness, and death, nor did Plaintiff have any knowledge of those risks. Plaintiff filled the allopurinol prescription and complied with the prescription regimen. On or about August 26, 2011, Plaintiff reported to the emergency room at the University of Chicago Hospital with severe eye pain, red eyes, and a small rash on his face. He was given eye medication and was discharged. Plaintiff returned to the emergency room on or about August 28, 2011 with a severe rash and severe eye pain. He was diagnosed with SCS over large portions of his body and was admitted to the intensive care burn unit.

Plaintiff alleges that SCS causes the skin to burn from the inside out, producing blisters and severe rashes. It may cause the skin to fall off the body. It may cause blindness in one or both eyes. Test results revealed that the allopurinol prescribed by Pecard caused Plaintiff's SCS. Additional test results revealed that Plaintiff did not, in fact, have gout.

Plaintiff's eleven-count Complaint alleges negligence, battery, and willful and wanton conduct against Pecard for failing to inform a supervising physician before prescribing allopurinol, failing to have a physician examine Plaintiff before prescribing allopurinol, failing to provide Plaintiff the necessary information about allopurinol so that Plaintiff could make an informed decision on whether to take the drug, prescribing allopurinol without a differential diagnosis and despite Plaintiff opining that he did not have gout, failing to prescribe Plaintiff a safer alternative drug, and holding himself out as a physician. Plaintiff further alleges that Komed Holman, NNHSC, and the unknown medical personnel defendants acted negligently in failing to properly supervise Pecard. Plaintiff alleges defective design, consumer fraud, failure to warn, breach of express and implied warranty of fitness, and willful and wanton conduct against Qualitest.

2. Defendant's Motion to Dismiss for Failure to Exhaust Administrative Remedies

On February 18, 2014, Defendant filed a Motion to Dismiss [Dkt.#4], arguing that Plaintiff did not exhaust his administrative remedies as required under the FTCA in order to initiate an action in this court. Defendant argued that the FTCA is the exclusive jurisdictional basis for a common law tort claim against the United States or any employee of the United States while acting within the scope of his office or employment, and that no FTCA action can be initiated against the United States until a plaintiff has exhausted his administrative remedies. Motion to Dismiss [Dkt.#4] at 2.

Defendant asserted that, for purposes of this lawsuit, Pecard was an employee of Komed Holman, a division of NNHSC, a private entity that receives grant money from the Public Health Service pursuant to 42 U.S.C. § 233. Motion to Dismiss [Dkt.#4] at 1. Although not stated explicitly, the practical effect of Defendant's assertion is that Pecard was an employee of the United States at all times relevant to the complaint and, as such, the FTCA is the only jurisdictional basis for Plaintiff's claim if Pecard was acting within the scope of his office or employment when he treated Plaintiff. Accordingly, Defendant argued, Plaintiff was required to present his claim to the appropriate federal agency and was not permitted to initiate this suit until the agency either denied his claim or failed to issue a final decision within six months of the date the claim was presented. Motion to Dismiss [Dkt.#4] at 2.

In support of its Motion to Dismiss, Defendant pointed out that Plaintiff's Complaint does not allege that Plaintiff ever presented an administrative claim to the appropriate federal agency. Id. Defendant also attached the declaration of Meredith Torres, a Senior Attorney in the General Law Division of the Office of the General Counsel for the Department of Health and Human Services ("Department"). Motion to Dismiss [Dkt.#4], Exh. A. Torres states that the Department's Claims Branch maintains a computerized database that contains records of the administrative tort claims filed with the Department. Motion to Dismiss [Dkt.#4], Exh. A at 1. If an administrative claim was filed with respect to NNHSC, it would appear in the database. Motion to Dismiss [Dkt.#4], Exh. A at 2. Torres searched the database and found no record of an administrative tort action filed by Plaintiff ...


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