United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Herndon United States District Judge
the Court is defendant, United States of America's,
Motion for Summary Judgment, asking the Court to dismiss
plaintiff's claims against the government for failure to
exhaust administrative remedies (doc. 83). Plaintiff opposes
the motion (doc. 96). Based on the following, the Motion for
Summary Judgment is GRANTED as to the claims
against the government.
Second Amended Complaint
pertains to defendant, United States of America, plaintiff
Teri Dawson asserts in her second amended complaint claims
for negligence (Count I) and negligent infliction of
emotional distress (Count V). [Doc. 68]. These allegations
stem from plaintiff's April 21, 2014 robot-assisted
hysterectomy performed by Dr. Sohn, an employee of the United
States at all relevant times, at Memorial Hospital of
Carbondale. Id. at ¶¶ 3; 11. Plaintiff
underwent the hysterectomy procedure to relieve pain and
symptoms relating to post-menopausal bleeding and frequent
urinary tract infections, among other ailments. Id.
at ¶ 8.
after the procedure was performed, plaintiff continued to
suffer from abdominal pain and returned to Memorial Hospital
of Carbondale to have a CT performed. Id. at ¶
15. The CT scan “revealed a small bowel loop herniating
through the abdominal wall.” Id. at ¶ 17.
Due to the results of the CT scan, Ms. Dawson underwent a
hernia repair on May 3, 2014, performed by Dr. Satyadeep
Bhattacharya. Id. at ¶ 18. Per plaintiff's
allegations, Dr. Bhattacharya stated the small bowel loop
“was a possible herniation through the site of [the
hysterectomy] surgery.” Id. at ¶ 17.
Plaintiff was discharged from the hospital in stable
conditions on May 7, 2014 (id. at ¶ 22),
however has continued to experience a myriad of symptoms
related to her abdominal issues and also claims she has
“suffered from posttraumatic stress disorder [and]
depression and anxiety.” Id. at ¶ 28.
alleges that Dr. Sohn, as an employee of the United
States, deviated from the accepted standard of
care when he performed her robot-assisted hysterectomy, and
that the continued pain and medical issues she has faced
since the surgery are a result of this negligence. See
Id. at ¶¶ 32-33; 79.
plaintiff seeks monetary damages and any further relief the
Court deems necessary and appropriate.
Government's Motion for Summary Judgment
government filed its motion for summary judgment on November
21, 2017 (doc. 83). Succinctly, the government argues that
summary judgment should be granted because Ms. Dawson has not
exhausted her administrative remedies prior to filing suit
against the United States, as required by 28 U.S.C. §
2675(a). See generally doc. 83 at 4-8.
The government argues that for an administrative claim to be
properly submitted under 28 U.S.C. § 2675(a), the law
requires that Standard Form 95 be presented to the
appropriate Federal agency, here, the Department of Health
and Human Services (“HHS”), with signature by the
claimant, or by an authorized representative of the claimant
with evidence of such authority. Plaintiff
Dawson's Standard Form 95, submitted on September 15,
2016, contains the signature of her attorney, Ms. Carla
Aikens. Id. at 7.
government contends that evidence of Ms. Aikens'
authority to represent plaintiff in her administrative claim
never materialized prior to denial of plaintiff's claim
by HHS and Ms. Aikens' addition of the United States into
plaintiff's complaint on April 4, 2017, despite multiple
requests by HHS to verify the authority. Id. at 7-8.
These actions frustrated the process of settlement that the
administrative demand is designed to initiate. Id.
at 8; Kanar v. United States, 118 F.3d 527
(7th Cir. 1997). Accordingly, it is the
government's stance that HHS was never presented a chance
to meaningfully consider plaintiff's claim resulting in
plaintiff failing to exhaust her administrative remedies,
such that the United States must now be dismissed from the
opposition, plaintiff contends that she was under the belief
that HHS had all the evidence it needed that Ms. Aikens was
proceeding with the administrative claim in proper authority.
Plaintiff admits she received a request from HHS to provide
evidence that Ms. Aikens' had authority to represent
plaintiff in the administrative matter (doc. 96 at 3)
however, received no further information regarding what
properly constituted such evidence despite numerous phone
calls between the law office of Carla Aikens, P.C. and the
HHS agents assigned to plaintiff's claim. Specifically,
plaintiff alleges that only plaintiff's medical records
were ever requested from HHS (id. at 4) such that
those records, and a copy of the complaint filed in the case
at bar, were the materials Ms. Aikens presented to HHS.
alternative, or perhaps as an aside, plaintiff's
opposition seems to argue that even if compliance with
HHS' request for documentation to prove Ms. Aikens'
authority to represent plaintiff in the administrative matter
was not met, the purpose of requiring such administrative
routes is to provide the government with “sufficient
notice to investigate the claim and prepare for settlement
negotiations[.]” Id. at 11. Plaintiff contests
that the materials submitted to HHS, accompanied by numerous
phone calls between HHS agents and plaintiff's
attorney's office, constitute proper notice of her claim
such that her administrative remedies had been exhausted
prior to the United States being added as party to the
instant lawsuit. Id.