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Lipsey v. United States

United States Court of Appeals, Seventh Circuit

January 4, 2018

John Lipsey, Individually and as father and next friend of J.L., a disabled minor, Plaintiff-Appellant,
v.
United States of America, et al., Defendants-Appellees.

          Argued September 19, 2017

         Appeal from the United States District Court for the Central District of Illinois. No. 2:12-cv-02100-JES-EIL James E. Shadid, Chief Judge.

          Before WOOD, Chief Judge, and Easterbrook and ROVNER, Circuit Judges.

          ROVNER, CIRCUIT JUDGE.

         In this appeal, John Lipsey seeks relief on behalf of his minor daughter J.L., for tragic injuries suffered by J.L. at birth. The district court granted summary judgment to the defendants, and Lipsey appeals that determination.

         The facts underlying the grant of summary judgment are set forth in detail in the district court opinion, and in relevant part are as follows. On June 8, 2009, a criminal complaint was filed against Wenona White in federal court alleging charges of federal bank fraud. At the time, White was pregnant with her tenth child. White was scheduled to self-surrender on July 6, 2009, but she failed to appear and was not located and taken into custody until September 10, 2009. On September 11, the district court judge in Hammond, Indiana ordered her remanded to the custody of the United States Marshals Service.

         Because White was 35 weeks pregnant by the time she was apprehended, the Marshals Service faced the challenge of finding a detention facility that was able to meet her late-pregnancy healthcare needs. The Marshals Service arranged for her to be housed at the Jerome Combs Detention Center ("JCDC"), a Kankakee County facility which has an intergovernmental agreement with the Marshals Service. The JCDC had a full-time medical staff, and a relationship with an obstetrics practice to handle the obstetric needs of its population.

         When White arrived at the JCDC on September 11, the JCDC intake officer obtained information from her and completed an intake form with her. That form indicated that her due date was October 18, her last medical exam was in August, and that she took prenatal vitamins. The intake officer also took her blood pressure, which was high at 161/86. No medical history was taken. White does not recall whether she told that intake officer of any problems with her ninth preg- nancy, but she acknowledges that she did not inform the intake officer that with her ninth pregnancy, she had placenta previa. That ninth pregnancy had resulted in an emergency cesarean section at 34 weeks, but there is no evidence that such information was ever communicated to any of the defendants. White signed a HIPAA release authorizing the release of her hospital records from Provident Hospital, where she received her prenatal care earlier in her pregnancy. Ivette Charee Sangster, a nurse at the JCDC, testified that she sought such records and was told by the hospital that they had no records of White as a patient there, but other evidence indicated that when the same request was made by a doctor from St. Mary's Hospital after J.L.'s birth, the records were promptly sent.

         Over the next 10 days, White had a number of contacts with the JCDC medical staff. A nurse saw White in her housing unit on September 12 and White reported that she was not having any problems with her pregnancy. On September 16, another JCDC nurse, Heather Gill, met with White in the JCDC clinic. According to Gill's notes, White reported that it was her tenth pregnancy and that she had regular checkups with an obstetrician in Indiana, and she denied having any problems with the pregnancy. Nonetheless, a logbook entry stated that White reported labor pains on September 16. Gill ordered prenatal vitamins for White and indicated that she would try to schedule an appointment with the obstetrician. White admits that she told a female nurse that she was not having any problems with her pregnancy.

         That appointment with the obstetrician proved problematic, however. The obstetrician who routinely provided care to JCDC patients refused to take White as a patient that late in her pregnancy. According to JCDC Chief of Corrections Michael Downey's report at a September 17 medical staff meeting, he contacted the Marshals Service to ask that White be transferred to a different facility where obstetrical care might prove more accessible, and was informed that it would be impossible to move White at that time. The Marshals Service employees deny having received that request, but we assume the facts in Lipsey's favor on summary judgment. In any event, Downey resolved to continue to seek a transfer, and in addition ordered an emergency delivery kit and close monitoring of White by the health care staff.

         The next day, September 18, JCDC physician assistant Timothy Menard attempted to have White come to the health care unit. A log note written by Menard indicates that White refused to be seen and that she signed a refusal form indicating that she was informed of the risks to her health and the health of her pregnancy. She was informed that without weekly gynecological exams there was no way to determine cervical dilation or position of the fetus. White admits that she signed a refusal form.

         On September 21, Gill wrote a log note indicating that an obstetrician at Westwood OB had called back and agreed to see White "next Tuesday." Before that could happen, however, on September 22, White awoke with abdominal and back pain and called for assistance at 5:10 a.m. The fire department received a dispatch at 5:13 a.m., the ambulance crew arrived at 5:22 a.m., and White arrived at St. Mary's Hospital in Kankakee at 5:52 a.m. The hospital staff took her medical history at that time and she denied having any complications during her pregnancy or any chronic medical problems. At 6:07 a.m., the nurse was unable to find any fetal heart tones, and a bedside ultrasound a minute later revealed a very slow fetal heart rate. At 6:13 a.m., the doctor decided to perform an emergency cesarean section and J.L. was delivered at 6:33 a.m. During that cesarean section, it was discovered that White had suffered a complete abruption of the placenta which stopped the flow of oxygen to J.L. Although J.L. was not breathing when she was delivered, the doctors were able to resuscitate her and transported her to the neonatal intensive care unit at the University of Chicago Hospitals. Tragically, as a result of the oxygen deprivation, J.L. has severe, permanent physical and mental disabilities. The abruption that resulted in the oxygen deprivation likely occurred either in the ambulance or at the hospital, because J.L. would not have survived if it had occurred earlier than that.

         Lipsey filed suit on behalf of his minor child, J.L., against the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., and against the "Kankakee Defendants"-consisting of: Kankakee County; Timothy Bukowski, Sheriff of Kankakee County; Michael Downey, Chief of Corrections; Heather Gill, R.N.; Timothy Menard, P.A.; Dr. Clyde Dayhoff, JCDC's medical co-director; and Ivette Charee Sangster, L.P.N.-alleging medical malpractice and pendent claims under the Family Expense Act and for willful and wanton conduct. Judge Baker granted the motion for summary judgment of the defendant United States, and a subsequent district court judge, Judge Shadid, granted summary judgment on behalf of the Kankakee Defendants on the remaining claims. Lipsey now appeals both decisions.

         We turn first to the claims against the United States. The United States as sovereign is immune from suit unless it has consented to be sued. The FTCA provides a limited waiver of immunity and provides for a cause of action for tort claims "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment ___" 28 U.S.C. § 1346(b)(1); United States v. Orleans,425 U.S. 807, 813 (1976). It defines government employees under the Act as including officers and employees of any federal agency but excludes "any contractor with the United States." Id. at 813-14; 28 U.S.C. ยง 2671. In applying that independent contractor exception to the waiver of immunity "[a] critical element in distinguishing an agency from a contractor is the power ...


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