Ferrell v. USA

Filing 32

ORDER DENYING 27 MOTION for Summary Judgment filed by USA.( Final Pretrial Conference set for 9/6/2017 10:00 AM in East St. Louis Courthouse before Judge David R. Herndon.). Signed by Judge David R. Herndon on 7/20/17. (klh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LISA FERRELL, as Special Administrator
of the Estate of Jordan Dixon, deceased,
Plaintiff,
v.

No. 16-0192-DRH

UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM and ORDER
HERNDON, District Judge:
Introduction and Background
Pending before the Court is the government’s motion for summary judgment
(Docs. 27 & 30). Plaintiff opposes the motion (Doc. 29). Based on the following,
the Court denies the motion.
On February 22, 2016, Lisa Ferrell, as special administrator of the estate of
Jordan Dixon, deceased, filed a lawsuit based om the Federal Tort Claims Act, 28
U.S.C. § 2674 (“FTCA”) against the United States of America (Doc. 1). Count I is a
claim for wrongful death under Illinois law, 740 ILCS § 180/1, et seq., and Count II
is a for survival claim under Illinois law, 755 ILCS § 5/27-6. The complaint alleges
that Dr. Robert Quaas, a pediatrician and an agent of the United States of America,
prescribed minocycline to Jordan Dixon, and: 1) negligently and carelessly failed to
recognize the signs and symptoms of an adverse drug reaction or DRESS
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syndrome; 1 2) negligently and carelessly failed to diagnose an adverse drug
reaction or DRESS syndrome; 3) negligently and carelessly failed to attribute the
signs and symptoms of an adverse drug reaction or DRESS syndrome to
minocycline; 4) negligently and carelessly failed to recommend the immediate
discontinuation of minocycline; and 5) negligently and carelessly failed to
appropriately treat Jordan’s adverse drug reaction. Jordan died on December 21,
2014.

The complaint seeks $10 million in damages.
On February 24, 2017, the government moved to exclude the testimony of

plaintiff’s expert Dr. Roy M. Colven (Doc. 22). Ferrell filed an opposition to the
motion to exclude (Doc. 23).

Thereafter, the government filed this motion for

summary judgment (Doc. 27), plaintiff filed her opposition (Doc. 29) and the
government filed its reply (Doc. 30).

In the meantime, the Court denied the

government’s motion to exclude on March 23, 2017 (Doc. 28).

As the motion for

summary judgment is ripe, the Court turns to address the motion.
Facts
On June 2, 2014, Dr. Quaas, a pediatrician employed by the Southern
Illinois Healthcare Foundation (“SIHF”), a federally qualified health center,
prescribed minocycline, an antibiotic, to Jordan Dixon, a teenager, as treatment for
acne. 2 Dr. Quass prescribed 60 pills to Jordan.

1 DRESS stands for Drug Reaction with Eosinophilia and Systemic Symptoms, a rare, serious
adverse drug reaction involving complex immune system response.
2
SIHF is an entity deemed as a Public Health Service employee under the Federally Supported
Health Centers Assistance Act (“FSHCAA”), 42 U.S.C. § 233(g)-(n), and by operation of the FSHCAA,

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On July 1, 2014, Jordan presented with a three-day illness to St. Elizabeth’s
Urgicare Center (“Urgicare”).

His symptoms included fever, cough, sore throat,

vomiting and a diffuse itchy rash, and the Urgicare physician diagnosed him with a
viral syndrome. Minocycline was included as a reported medication, but “drug
allergy” was not considered in the differential diagnosis. The Urgicare physician
prescribed azithromycin, which Jordan began taking. Dr. Colven’s report states
that, “Presumably, Jordan continues taking minocycline” after this July 1st visit.
On July 3, 2014, Jordan visited Dr. Quaas and presented with fever, rash
and oral lesions, and Dr. Quaas became concerned that Jordan had measles.

Dr.

Quaas referred Jordan to Cardinal Glennon Children’s Hospital’s Emergency
Department.

When seen at Cardinal Glennon later on July 3, 2014, Jordan’s

mother did not mention minocycline. She did mention that Jordan was taking
griseofulvin for a scalp infection. A possible drug allergy to azithromycin was
suspected, and Cardinal Glennon instructed Jordan to stop taking the
azithromycin. Tests for measles and mononucleosis were negative. Dr. Colven
states that, “Because there is no record of anyone telling Jordan or his mother to

SIHF and its employees, who are acting within the scope of their employment, are eligible for
coverage under the FTCA, 28 U.S.C. §§ 1346(b), 2041(b), 2671-80. Therefore, the Court has
exclusive jurisdiction over this action, pursuant to 28 U.S.C. § 1346(b)(1), because Ferrell seeks
money damages against the United States for personal injury alleged to be caused by government
employees while acting within the scope of their employment. There is no dispute that Dr. Quaas
was acting within the scope of his employment while providing medical care to Jordan. Venue is
proper, pursuant to 28 U.S.C. § 1391(b), because the United States, by and through its agents,
resides within the Southern District of Illinois, and the alleged acts giving rise to this claim occurred
within the Southern District of Illinois.

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stop the minocycline, after two medical encounters on July 3, he presumably
continues it.”
At the time of the July 3, 2014, Cardinal Glennon ER visit, Jordan had signs
of liver inflammation and abnormal kidney function. Lab tests ruled out strep,
mononucleosis, and the measles.

Cardinal Glennon sent Jordan home with a

diagnosis of a drug reaction due to azithromycin with possible mononucleosis.
Jordan returned to Dr. Quaas’s office on July 8, 2014, presenting with a
rash, low grade fever, pharyngitis, liver and spleen enlargement, facial swelling,
and joint pain and swelling. Dr. Quaas suspected Epstein Barr Virus (“EBV”),
ordered more testing, prescribed prednisone, and referred Jordan to Cardinal
Glennon, which admitted him on July 11, 2014.
On or about the time of the July 11, 2014 Cardinal Glennon hospitalization,
physicians there opined that Jordan had DRESS syndrome due to minocycline use.
The presence of eosinophilia on July 11 was helpful in diagnosing a medication
reaction because high eosinophilia counts are not expected to result from a viral
infection. The diagnosis of DRESS included a “history of taking minocycline for
the previous month and a half.”

On July 11, Jordan’s mother told Cardinal

Glennon that Jordan stopped taking minocycline when the rash started.
After four hospitalizations, Jordan died on December 21, 2014 at Cardinal
Glennon Children’s Hospital.

The death certificate lists the cause of death as

myocarditis; DRESS syndrome, RSV; and Rhinovirus, Enterovirus.
Summary Judgment Standard
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Summary judgment is appropriate when the movant shows there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56; Smith v. Hope Sch., 560 F.3d 694, 699 (7th Cir.
2009). “[A] factual dispute is ‘genuine’ only if a reasonable jury could find for either
party.” SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 368
(7th Cir. 2009). The Court ruling on the motion construes all facts and makes all
reasonable

inferences

in

the

light

most

favorable

to

the

nonmoving

party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). Summary judgment is warranted when the nonmoving party
cannot establish an essential element of its case on which it will bear the burden of
proof at trial. Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012).
Analysis
The Federal Tort Claims Act provides a remedy for personal injury
caused by the negligent or wrongful act or omission of government employees while
acting within the scope of their employment. *See 28 U.S.C. §§ 1346(b), 2674. The
Act incorporates the law of the place where the act or omission occurred, which in
this case is Illinois. 28 U.S.C. § 1346(b).
Under Illinois law, “[t]o recover damages based upon a defendant's alleged
negligence, a plaintiff must allege and prove that the defendant owed a duty to the
plaintiff, that defendant breached that duty, and that the breach was the proximate
cause of the plaintiff's injuries.” First Springfield Bank & Trust v. Galman, 188
Ill.2d 252, 242 Ill.Dec. 113, 720 N.E.2d 1068, 1071 (1999). Under Illinois law, a
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plaintiff must establish the following elements to prevail in a medical malpractice
action: “(1) the standard of care in the medical community by which the physician's
treatment was measured; (2) that the physician deviated from the standard of care;
and (3) that a resulting injury was proximately caused by the deviation from the
standard of care.” Neade v. Portes, 193 Ill.2d 433, 250 Ill.Dec. 733, 739 N.E.2d
496, 502 (2000). “A plaintiff must present expert testimony to establish all three
elements.” Wilbourn v. Cavalenes,398 Ill.App.3d 837, 338 Ill.Dec. 77, 923 N.E.2d
937, 949 (2010). The elements must each be proven by a preponderance of the
evidence, “otherwise referred to as the ‘more probably true than not true’
standard.” Holton v. Mem'l Hosp., 176 Ill.2d 95, 223 Ill.Dec. 429, 679 N.E.2d
1202, 1207 (1997) (citing Borowski v. Von Solbrig, 60 Ill.2d 418, 328 N.E.2d
301, 305 (1975)).
The standard of care in a medical malpractice case is “the relevant inquiry by
which we judge a physician’s actions.” Neade, 250 Ill.Dec. 733, 739 N.E.2d at 502.
The physician is “held to ‘the reasonable skill which a physician in good standing in
the community would use in a similar case.’” Id. (quoting Newell v. Corres, 125
Ill.App.3d 1087, 81 Ill.Dec. 283, 466 N.E.2d 1085, 1094 (1984)). In other words,
the relevant consideration is the “degree of knowledge, skill, and care which a
reasonably well-qualified physician in the same or similar community would bring
to a similar case under similar circumstances.” Purtill v. Hess, 111 Ill.2d 229, 95
Ill.Dec. 305, 489 N.E.2d 867, 872 (1986). A breach occurs when a physician fails to
use “reasonable skill” that “‘physicians in good practice ordinarily use and would
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bring to a similar case.’” Cummings v. Jha, 394 Ill.App.3d 439, 333 Ill.Dec. 837,
915 N.E.2d 908, 920 (2009) (quoting Pugh v. Swiontek, 115 Ill.App.2d 26, 253
N.E.2d 3, 5 (1969)). This pertains to both making diagnoses and rendering
treatment. Id.
“Proximate cause [in a medical malpractice] case must be established by
expert testimony to a reasonable degree of medical certainty. Any causal connection
between treatment, or a delay in treatment, and the claimed injury ‘must not be
contingent, speculative, or merely possible.’” Walton v. Dirkes, 388 Ill.App.3d 58,
327 Ill.Dec. 921, 903 N.E.2d 18, 20 (2009) (quoting Aguilera v. Mount Sinai Hosp.

Med. Ctr., 293 Ill.App.3d 967, 229 Ill.Dec. 65, 691 N.E.2d 1, 7 (1997)) (internal
citations omitted). The Illinois Pattern Jury Instructions define proximate cause
as “[any] cause that, in the natural or ordinary course of events, produced the
plaintiff's injury. [It need not be the only cause, nor the last or nearest cause. It is
sufficient

if

it

combines

with

another

cause

resulting

in

the

injury.]” Illinois Pattern Jury Instructions, Civil, No. 15.01 (2009) (second set of
brackets in original). In short, the plaintiff must establish both that: “(1) the
defendant ‘deviated from the standard of care[,]’ and (2) ‘that that deviation was
[a] proximate cause of the plaintiff's injury.’” Buck v. Charletta, 373 Ill.Dec. 576,
994 N.E.2d 61, 72 (2013) (quoting Snelson v. Kamm, 204 Ill.2d 1, 272 Ill.Dec.
610, 787 N.E.2d 796, 821 (2003)). This can be done by presenting “‘[e]vidence
which shows to a reasonable [degree of medical] certainty that negligent delay in
diagnosis or treatment ... lessened the effectiveness of treatment[.]’”
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Louis A. Weiss Mem'l Hosp., 143 Ill.App.3d 479, 97 Ill.Dec. 524, 493 N.E.2d 6, 12
(1986) (quoting James v. United States, 483 F.Supp. 581, 585 (N.D.Cal.1980)).
“[T]he plaintiff exclusively bears the burden of proof to establish the element of
causation ... and ... a defendant has the right to rebut such evidence and to also
establish that the conduct of another causative factor is the sole proximate cause
of the injury.” Ready v. United/Goedecke Servs., Inc., 238 Ill.2d 582, 345 Ill.Dec.
574, 939 N.E.2d 417, 422 (2010) (quoting Nolan v. Weil–McLain, 233 Ill.2d 416,
331 Ill.Dec. 140, 910 N.E.2d 549, 563 n. 4 (2009)) (internal quotation marks
omitted) (emphasis added).
The

government

argues

that

Ferrell

cannot

establish

causation.

Specifically, the government contends that Dr. Colven cannot determine when
Jordan took the minocycline or how many minocycline pills he consumed. Further,
the government argues that even if Jordan discontinued the minocycline, the
nature of DRESS syndrome is that once the immune system reaction occurs, a
course is set in motion which might be irreversible. Ferrell counters that Dr.
Colven’s report and testimony provide sufficient evidence of proximate cause.

The

Court agrees with Ferrell.
Dr. Colven made acceptable inferences from the medical records and, to a
reasonable degree of medical certainty, formed an opinion that Dr. Quass’
negligence caused Jordan’s death. Specifically, Dr. Colven, after reviewing Dr.
Quass’ deposition, government expert Dr. Gordon Bloomberg’s deposition, Dr.
Quass’ medical records, St. Elizabeth Urgicare’s medical records and Cardinal
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Glennon Children’s Hospital medical records, opined:
1. Dr. Quass did not document any warnings or instructions given to
Jordan or his mother regarding a potential reaction to a new
systemic medication (minocycline) prescribed. The instructions
for calling for any problems within the timeline of “a couple of
days” for a reaction to a new medication to occur were not
adequate, recognizing that most drug allergies take longer (5-14
days) to manifest. Armed with the information of what drug
allergies can look like (e.g., rash +/- additional symptoms) and that
they may not occur for several days to weeks after starting new
medication, Jordan and his mother would have been better
equipped to consider the minocycline as a cause of Jordan’s early
symptoms. In my opinion, this lack of communication falls short
of the standard of care.
2. Dr. Quass presumably did not consider drug allergy in the
differential diagnosis of Jordan’s illness when Jordan presented to
Dr. Quass on July 3, 2014. Or, if he did, he didn’t consider the
medications that Jordan was taking at that time (minocycline and
azithromycin). In not considering drug allergy, Dr. Quass also
apparently did not communicate Jordan’s medications to the
CGMC-ED physician. Drug allergy to minocycline was still not
considered as a cause during Jordan’s July 8, 2014 visit with Dr.
Quass. It was not listed under the current medications, and no
instructions were given to stop it. This failure to consider a
medication allergy, particularly with typical findings of rash, fever,
and other features of a severe adverse drug reaction, falls short of
the standard of care.
3. Drug hypersensitivity syndrome to minocycline was diagnosed
eventually on July 11, 2014. In my opinion, this delay in
discontinuing minocycline more likely than not contributed to
added morbidity related to this allergic reaction.
(Colven report, pg. 6).
Dr. Colven’s report and testimony provide sufficient evidence of proximate
cause. Dr. Colven’s opinion, that delayed cessation of minocycline and delayed
steroid treatment were the cause of the outcome, is based on a reasonable degree of
medical certainty. Specifically, Dr. Colven opines, “[o]n July 3, Dr. Quass had
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access to knowledge that minocycline had been prescribed a month before.”

The

drug did not appear in his office records as a current medication and there is no
documentation that it was communicated to Cardinal Glennon Medical Center for
that first visit on July 3, 2014. Dr. Colven states: “[t]his delay in the minocycline
cessation allowed the immune reaction to continue in multiple organ systems (skin,
blood, lymphatic and liver. … [which] more likely than not added to the morbidity
associated with DRESS.” Dr. Colven’s opinions sufficiently indicate the reasonable
probability that Jordan’s injury was foreseeable given Dr. Quass’ negligence and
that Dr. Qauss’ acts and omissions were a cause of Jordan’s injuries and death.
The government’s arguments regarding the timing of minocycline ingestion and its
arguments regarding the nature of DRESS syndrome clearly show that genuine
issues of fact are present which preclude summary judgment. As the Court found
previously, “[w]hile, the government may disagree with the opinions stated by Dr.
Colven, his opinions are based on the underlying facts to which Dr. Colven has
applied accepted methodology given the particular condition and his opinions are
not based on speculation.” (Doc. 28, ps. 11-12).

Thus, the Court denies the

motion for summary judgment.
Conclusion
Accordingly, the Court DENIES the government’s motion for summary
judgment (Doc. 27). The Court SETS this matter for Final Pretrial Conference for
on September 6, 2017 at 10:00 a.m. Further, the Court DIRECTS the parties to
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contact Magistrate Judge Daly’s chambers if a settlement conference would be
beneficial.
IT IS SO ORDERED.

Digitally signed by
Judge David R.
Herndon
Date: 2017.07.20
15:48:28 -05'00'

Signed this 20th day of July, 2017.

United States District Judge

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