Chrispen v. USA et al

Filing 166

OPINION AND ORDER: 1) United States' motion for partial summary judgment 112 is GRANTED; and 2) Counts II and III of amended complaint are DISMISSED. Signed by Judge Karen K. Caldwell on 7/13/2017. (RCB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT PIKEVILLE
LISA ANN CHRISPEN,

CIVIL ACTION NO. 7:16-132-KKC

Plaintiff,
V.

OPINION AND ORDER

UNITED STATES OF AMERICA,
Defendant.

*** *** ***
This matter is before the Court on the motion for partial summary judgment
(DE 112) filed by the United States. For the following reasons, the Court will grant
the motion and dismiss Counts II and III of the plaintiff’s amended complaint.
I.

Background

The plaintiff Lisa Ann Chrispen alleges that certain staff at Big Sandy
Healthcare, Inc. d/b/a Physicians for Women (“Big Sandy”) were negligent in their
evaluation, management, diagnosis, treatment, and care of her uterine cancer. She
further alleges that, as a result of the staff’s negligence, she has suffered various
damages including a substantially shortened life expectancy. (DE 80, Amended
Complaint.)
Chrispen originally named Big Sandy and two doctors who practiced there –
Dr. Joanna Santiesteban and Dr. Enrico Ascani – as defendants in this action, in
addition to the United States. There is no dispute that Big Sandy and the doctors
are deemed employees of the federal Public Health Service under 42 U.S.C. § 233(a).

The United States has certified that the doctors were acting within the scope of their
employment during the events alleged in the indictment. Thus, Chrispen’s exclusive
remedy for the wrongs she has alleged is through an action against the United
States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. Accordingly, the
United States has been named the sole defendant in this action.
Chrispen asserts three claims against the United States. The first count is for
medical negligence. The second and third counts both assert that Big Sandy was
negligent in the hiring, supervision and/or retention of Dr. Santiesteban. (DE 80,
Amended Complaint, Counts I, II, and II.) She seeks $10 million in damages. The
United States has recently stipulated that Dr. Santiesteban breached the duty of
care in her medical treatment of Chrispen.
The United States now moves to dismiss Chrispen’s claim of negligent
hiring/retention/supervision, arguing that the claim is precluded by the FTCA’s
discretionary-function exception.
II.

Analysis

Suits against the United States are generally barred unless it consents to be
sued. Kohl v. United States, 699 F.3d 935, 939 (6th Cir.2012). The FTCA reflects a
limited waiver of that immunity but there are multiple exceptions to it. Id. The
exception at issue here is the “discretionary-function exception.” Under it, the
FTCA’s waiver of immunity does not apply to “[a]ny claim . . . based upon the
exercise or performance or the failure to exercise or perform a discretionary function
or duty on the part of a federal agency or an employee of the Government, whether
or not the discretion involved be abused.” 28 U.S.C. § 2680(a). If the exception
applies to a claim, the United States has not waived its immunity for the claim.

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Thus, “federal courts lack subject-matter jurisdiction, and the claim must be
dismissed.” Kohl, 699 F.3d at 940.
To determine whether Chrispen’s negligent hiring/retention/supervision
claim falls within the discretionary-function exception, the Court must employ a
two-step test. Id. Under the first step, the Court must determine “whether the
challenged act or omission violated a mandatory regulation or policy that allowed no
judgment or choice.” Id. (citing Rosebush v. United States, 119 F.3d 438, 441 (6th
Cir. 1997)). If so, then the discretionary-function exception does not apply. Id. The
United States has waived its immunity to such claims through the FTCA because
the employee had no option except to adhere to the directive. Id. (quoting Berkovitz
v. United States, 486 U.S. 531, 536 (1988)). If the employee failed to do so, the
United States is subject to liability.
“If, on the other hand, there was room for judgment or choice in the decision
made, then the challenged conduct was discretionary.” Id. This means the conduct
may be protected. The Court must then proceed to the second step of the test to
determine whether the challenged conduct is the kind that the discretionary
function was intended to shield from liability. Id. The discretionary-function
exception was intended “’to prevent judicial ‘second-guessing’ of . . . administrative
decisions grounded in social, economic, and political policy through the medium of
an action in tort.” Id. (quoting United States v. S.A. Empresa de Viacao Aerea Rio
Grandense (Varig Airlines), 467 U.S. 797, 814 (1984)).
The Sixth Circuit “has consistently held that agency supervisory and hiring
decisions fall within the discretionary function exception.” Snyder v. United States,
590 F. App'x 505, 510 (6th Cir. 2014) (citing cases). Absent a specific regulation that

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constrains the government’s judgment on such issues, decisions about training,
supervision and retention “require policy judgments—the type that Congress
intended to shield from tort liability.” Id.
In her response, Crispin argues that her claim is specifically for “negligent
credentialing.” The parties appear to agree with the definition of credentialing
contained in a document published by the Bureau of Primary Health Care dated
July 10, 2002, which clarified the bureau’s credentialing policy dated July 17, 2001.
(DE 112-6, DE 112-7.) The parties refer to the 2002 document as Policy Information
Notice (PIN) 2002-22 and the Court will do the same. PIN 2002-22 defines
credentialing as “the process of assessing and confirming the qualifications of a
licensed or certified health care practitioner.” (DE 112-7, PIN 2002-22, § A.)
The first problem with Chrispen’s negative credentialing claim is that the
tort is not currently recognized under Kentucky law. Brown v. Trover, No. 2012-CA001880-MR, 2016 WL 100311, at *4 (Ky. Ct. App. Jan. 8, 2016). The United States’
liability under an FTCA claim “is determined in accordance with the law of the state
where the event giving rise to liability occurred.” Young v. United States, 71 F.3d
1238, 1242 (6th Cir.1995). The Kentucky Court of Appeals “briefly recognized the
tort” in Estate of Judith Burton v. Trover, 2009–CA–001595, 2011 WL 8318231, at
*1 (Ky.App.2011). Brown, 2016 WL 100311 at *4. The Kentucky Supreme Court,
however, overturned that decision on other grounds, leaving “for another day
consideration of a negligent credentialing cause of action.” Brown, 2016 WL 100311
at *4 (quoting Trover v. Estate of Burton, 423 S.W.3d 165, 168 (Ky.2014)).
In Brown, the Kentucky Court of Appeals declined to recognize the tort. Id. at
4, 5. In doing so, the court noted that the “legal and policy-based considerations

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involved are numerous, varied, and of interest and importance to contentious
factions.” Id. at 5. Further, there are multiple versions of the tort. Id. Noting the
court’s duty to “exercise great restraint in recognizing such new and complex causes
of action,” the Kentucky Court of Appeals thought it best to leave the decision about
whether to recognize the tort to the Kentucky Supreme Court. Id. Thus, the court

affirmed the trial court’s dismissal of the plaintiff’s negligent credentialing claim.
Later, in Spalding v. Spring View Hosp., LLC, No. 2013–CA–000842–MR,
2016 WL 929507 (Ky. App. Mar. 11, 2016), a divided panel of the Kentucky Court of
Appeals again held that negligent credentialing was a viable cause of action in
Kentucky. The Kentucky Supreme Court granted discretionary review of that
decision on October 13, 2016 and the case remains pending. See Dixon v. Lake
Cumberland Reg'l Hosp., LLC, No. 2014-CA-000917-MR, 2017 WL 1533812, at *10
(Ky. Ct. App. Apr. 28, 2017)
In cases brought under the FTCA, where state law is unsettled, the federal
court must predict what the state’s highest court would do if presented with the
case. See Midwest Knitting Mills, Inc. v. United States, 950 F.2d 1295, 1298 (7th Cir.
1991.) The Court finds it unnecessary here to determine whether the Kentucky
Supreme Court will ultimately recognize the tort of negligent credentialing. This is
because, even if this Court were to determine that Kentucky’s highest court will
recognize the tort, Chrispen’s claim must fail.
The Court was not certain after reading Chrispen’s response brief precisely
what rule or policy she claims Big Sandy violated with regard to the credentialing of
Dr. Santiesteban. Accordingly, the Court notified the parties via-email that
Chrispen should be prepared to address this issue at the recent teleconference in
this matter.

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In her response brief, Chrispen mentions two possible sets of policies. First,
she mentions the BPHC policy discussed above, PIN 2001-22, which Chrispen refers
to simply as “the Policy” in her response. (DE 116, Response at 3.) Next, she
mentions “the Joint Commission Standards” and states that “the real question
before the Court is whether the Big Sandy complied with” those standards. (DE 116,
Response at 3.)
As to the “Joint Commission Standards,” Chrispen mentions these standards
multiple times in her response brief. (DE 116, Response at 3, 4, 12, 13, 14, 17, 20, 21,
23.) In fact, Chrispen charges Big Sandy with a “clear violation of the Joint
Commission Standards.” (DE 116, Response at 14.) Later in her response brief,
Chrispen explains that the “Joint Commission” is the Joint Commission on
Accreditation of Healthcare Organizations. (DE 116, Response at 16-17.) In her
brief, however, Chrispen never sets forth exactly what the Joint Commission
Standards are or which ones she claims Big Sandy violated. Nor did her counsel do
so at the recent teleconference. Again, in order for this Court to find that the United
States has waived immunity for Chrispen’s claims against Big Sandy, she must
point to a “mandatory regulation or policy that allowed no judgment or choice,”
which Big Sandy violated. Kohl, 699 F.3d at 940. Chrispen has failed to do so with
regard to the Joint Commission Standards.
Further, Chrispen has failed to prove that Big Sandy was obligated to follow
any Joint Commission Standards regarding the credentialing of Dr. Santiesteban. In
her response brief and at the teleconference, Chrispen’s counsel stated that PIN
2002-22 requires that Big Sandy comply with the Joint Commission Standards. (DE
116, Response at 3, 13, 21.) Chrispen does not point to any provision of PIN 2002-22
that mandates Big Sandy’s compliance with the Joint Commission Standards.

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Because Chrispen fails to prove that the Joint Commission Standards are
mandatory for Big Sandy, the Court cannot find that the United States has waived
immunity for any claim that Big Sandy violated those standards.
As to PIN 2002-22, in her response brief and at the teleconference, Chrispen
asserted that Big Sandy violated the following provision, which addresses the
credentialing of licensed independent practitioners:
1. Credentialing of LIPs requires primary source verification of
the following:





Current licensure;
Relevant education, training, or experience;
Current competence; and
Health fitness, or the ability to perform the requested
privileges, can be determined by a statement from the
individual that is confirmed either by the director of a training
program, chief of staff/services at a hospital where privileges
exist, or a licensed physician designated by the organization.

(DE 112-7, PIN 2002-22, § B(1), p. 2.)
PIN 2002-22 defines “primary source verification” as “[v]erification by
the original source of a specific credential to determine the accuracy of a
qualification reported by an individual health care practitioner.” (DE 112-7,
PIN 2002-22, § A, p. 2.)
As evidence that Big Sandy complied with this requirement, both in its reply
brief and in the teleconference, the United States cites the deposition testimony of
Ancil Lewis, Big Sandy’s Chief Executive Officer. (DE 112-5, Lewis Dep. at 17, 53.)
Lewis testified that he established the credentialing committee at Big Sandy in 1999
or 2000 and that he was co-chair of the committee during the events at issue. (DE
112-5, Lewis Dep. at 20-22.)

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The United States specifically cites page 115 of Lewis’s deposition. (DE 122,
Reply at 7.) There, Lewis states that Big Sandy obtained documentation that Dr.
Santiesteban had a Kentucky medical license, had completed medical school and an
obstetrics and gynecology (OB-GYN) residency, and that she was board certified in
OB-GYN. (DE 112-5, Lewis Dep. at 115.) In the teleconference, Chrispen’s counsel
did not dispute that Big Sandy had primary source verification of Dr. Santiesteban’s
current license, relevant education, training, experience, or health fitness. Instead,
Chrispen’s counsel focused on whether Big Sandy had primary source verification of
Dr. Santiesteban’s “current competence.”
Deciding which documents are necessary to determine Dr. Santiesteban’s
“current competence,” however, is a discretionary decision. It may be clear what
primary source documents are necessary to verify a doctor’s current licensure,
education, training, and experience. Deciding the documents necessary to verify a
doctor’s “current competence,” however, requires some judgment and choice.
Further, making such determinations in hiring or retaining an employee requires
policy judgments, which are the kinds of judgments Congress intended to shield
from tort liability. Snyder, 590 F. App'x at 510. Accordingly, the United States has
not waived immunity for claims that Big Sandy violated PIN 2002-22 by failing to
use the appropriate documents to verify Dr. Santiesteban’s current competence.
The parties’ arguments on this issue illustrate the judgment and discretion
involved in deciding which documents evidence a physician’s “current competence.”
The United States argues that, even if this were not a discretionary decision, it
complied with PIN 2002-22’s directive by contacting Dr. Santiesteban’s physician
references listed in her application for employment, each of whom completed and
returned a form attesting to Dr. Santiesteban’s ability to perform various types of

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care and procedures “in a safe and medically appropriate manner.” (DE 122, Reply
at 7.) As evidence, the United States cites to portions of Dr. Santiesteban’s
credentialing file containing forms completed by Drs. Frederick Stehman, Grace
Cha, and Elizabeth Case. (DE 112-8, Credentialing File at CM-ECF pp. 210-212.)
At the teleconference, Chrispen’s counsel pointed out that none of these
physicians had worked with Dr. Santiesteban in the five years leading up to her
application. Chrispen’s counsel argued that Big Sandy should have sought
verifications of Dr. Santiesteban’s current competence from her most recent
employers. Chrispen points to no mandatory policy or regulation, however,
requiring that Big Sandy contact Dr. Santiesteban’s most recent employers to
determine her current competence.
At the phone conference, Chrispen’s counsel also argued that Big Sandy was
aware Dr. Santiesteban was being investigated by the Virginia Board of Medical
Licensure and that Big Sandy was obligated to inquire as to the status of the
investigation. Again, however, Chrispen points to no mandatory policy or regulation
requiring that Big Sandy do so. These are the kinds of policy judgments in hiring,
supervising, and retaining employees that Congress intended to shield from tort
liability. Snyder, 590 F. App'x at 510.
This opinion should not be interpreted to find that Big Sandy’s actions in
determining Dr. Santiesteban’s current competence were adequate or appropriate.
The Court expresses no opinion on that issue. With this opinion, the Court merely
finds that the United States has not waived its immunity with regard to any claim
based on those actions.

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III.

Conclusion

Accordingly, the Court hereby ORDERS as follows:
1) the United States’ motion for partial summary judgment (DE 112) is
GRANTED; and
2) Counts II and III of the amended complaint are DISMISSED.

Dated July 13, 2017.

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