John Lipsey, Individually and as father and next friend of J.L., a disabled minor, Plaintiff-Appellant,
United States of America, et al., Defendants-Appellees.
September 19, 2017
from the United States District Court for the Central
District of Illinois. No. 2:12-cv-02100-JES-EIL James E.
Shadid, Chief Judge.
WOOD, Chief Judge, and Easterbrook and ROVNER, Circuit
ROVNER, CIRCUIT JUDGE.
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.
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
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
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
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.
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.
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.
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.
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.
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. § 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 ...