Lee v. Switzer et al
Filing
49
MEMORANDUM OPINION AND ORDER, ( Status Conference set for 6/18/2020 11:00 AM before Judge Jason K. Pulliam,), DENYING 38 MOTION for Summary Judgment filed by UNITED STATES OF AMERICA.. Signed by Judge Jason K. Pulliam. (mgr)
Case 5:18-cv-00605-JKP Document 49 Filed 06/05/20 Page 1 of 6
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
DENICE LEE, A/N/F JS, A TODDLER,
Plaintiff,
v.
No. SA-18-CV-00605-JKP
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter came before the Court on June 4, 2020, for hearing upon Defendant’s Motion
for Summary Judgment (ECF No. 38). Upon due consideration of Defendant’s motion, the
pleadings and evidence on record, and the arguments of the parties, the Court denies the motion.
BACKGROUND
Plaintiff Denice Lee (“Lee”) initiated this action against the United States pursuant to the
Federal Tort Claims Act (“FTCA”) on June 18, 2018. ECF Nos. 1, 6. Lee asserts a cause of
action for medical malpractice negligence.
JS, a minor, was born on December 2, 2015, to Denice Lee and Kendall L. Smith
(“Smith”). ECF No. 6 ¶ 10. Lee is deaf, and Smith has bilateral retinoblastoma, a heritable form
of eye cancer which causes tumors to form within the eye. Id. Smith’s retinoblastoma meant that
JS had a 50% chance of inheriting the disease and developing tumors. Id.
JS underwent child checks at Communicare on December 11, 2015, December 16, 2015,
February 10, 2016, and April 15, 2016. Id. ¶ 12. At the April 15, 2016 appointment, Lee
complained JS’s eyes were turning outward. Id. JS was then referred for ophthalmologic
consultation and diagnosed with bilateral retinoblastoma on or about April 28, 2016. Id. ¶¶ 12-
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13. Treatment for retinoblastoma includes intraarterial chemotherapy, cryotherapy, and laser
treatments. Id. ¶ 13. These treatments may extend for a patient’s lifetime and despite treatment,
blindness may result. Id. ¶ 14.
Lee alleges negligence led to a delay in diagnosing JS’s retinoblastoma and subsequently
led to damage to JS’s eyes, pain and suffering, and the requirement of significant medical
treatment, both in the past and in the future. Id. ¶ 17.
LEGAL STANDARD
The Court will grant summary judgment if the record shows there is no genuine dispute
as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). A dispute is “genuine” if the evidence is sufficient for a reasonable jury to return a
verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th Cir. 2010). “A fact is material only if
its resolution would affect the outcome of the action.” Wiley v. State Farm Fire & Cas. Co., 585
F.3d 206, 210 (5th Cir. 2009).
The moving party bears the initial burden of informing the court of the basis for the
motion and of identifying those portions of the record which demonstrate the absence of a
genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Adams v.
Travelers Indem. Co., 465 F.3d 156, 163 (5th Cir. 2006). Once the moving party meets this
burden, the nonmoving party must “go beyond the pleadings” and designate competent summary
judgment evidence “showing that there is a genuine [dispute] for trial.” Adams, 465 F.3d at 164;
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986). The
parties may satisfy their respective burdens by “tendering depositions, affidavits, and other
competent evidence.” Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992).
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When ruling on a motion for summary judgment, the Court must view all facts and
inferences in the light most favorable to the nonmoving party and resolve all disputed facts in
favor of the nonmoving party. Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir.
2005). A court “may not make credibility determinations or weigh the evidence” in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000); Anderson, 477 U.S. at 254–55. However, when the nonmoving party fails “to address or
respond to a fact raised by the moving party and supported by evidence, the court may consider
the fact as undisputed” and “[s]uch undisputed facts may form the basis for a summary
judgment.” Broadcast Music, Inc. v. Bentley, Civil Action No. SA-16-CV-394-XR, 2017 WL
782932, at *2 (W.D. Tex. Feb. 28, 2017).
DISCUSSION
Defendant’s motion for summary judgment presents two arguments: (1) Lee cannot prove
a breach by the treating physicians in this case because she cannot establish that Dr. Switzer was
aware of the history of retinoblastoma and (2) Lee cannot present evidence on exactly what
harm, if any, was proximately caused by the alleged malpractice. ECF No. 38 at 3.
1. Family history of retinoblastoma
To satisfy its initial burden of informing the court of the basis for the motion, Defendant
states there are two standards of care with respect to retinoblastoma. ECF No. 38 at 4. When
there is no family history or reason to suspect any heightened risks, the standard of care is to
perform a red reflex test to look for abnormalities in the eye. Id. When a family history of
retinoblastoma is known, the child should be regularly examined by an ophthalmologist starting
at birth. Id. Defendant contends before the treating physicians knew of this family’s history of
retinoblastoma, they consistently performed red reflex tests. Id. Defendant further contends that
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immediately upon learning of the family history, the treating physicians referred JS to an
ophthalmologist. Id. at 5.
To demonstrate the absence of a genuine dispute of material fact, Defendant states the
parties’ experts agree that the physicians were not aware of any family history of retinoblastoma
before the April 2016 visit and the evidence confirms JS’s mother attended the first visits alone
and gave her own family history, but not that of JS’s father. Id.
To satisfy her burden to show a genuine dispute for trial, Lee designates her expert
witness’s opinion. Dr. David A. Plager’s expert opinion states: “The family has indicated that
they told their primary care providers on multiple occasions about the father’s bilateral
retinoblastoma before, around the time of, and after the birth of the child, but that they were
reassured that the eyes were fine and no reason for further investigation.” ECF No. 40-3. Dr.
Switzer, the treating physician for JS’s first two visits, testified in his deposition that “no family
history of retinoblastoma was given” and Lee attended JS’s appointments alone. ECF No. 39-9 at
114. Lee testified in her deposition she and Smith attended JS’s first visit to Dr. Switzer. ECF
40-4 at 25, 29. Lee testified that at JS’s first visit Smith interpreted for her, she told Dr. Switzer
that JS’s father (Smith) had an eye condition and JS needed to be checked, and Dr. Switzer said
“fine.” Id. at 25-27.
The evidence consisting of expert witness Plager’s expert report, Dr. Switzer’s deposition
testimony, and Lee’s deposition testimony reveal genuine disputes of material fact on the issue
of whether Dr. Switzer was aware of the history of retinoblastoma. In light of this conflicting
deposition testimony, determination of whether and when the treating physicians were told about
the family history of retinoblastoma will require making credibility determinations and weighing
evidence. Reeves, 530 U.S. at 150; Anderson, 477 U.S. at 254–55. The fact finder must
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determine these factual disputes. For this reason, Defendant is not entitled to summary judgment
as a matter of law on this basis.
2. Harm proximately caused by the alleged malpractice
Next, Defendant contends it is entitled to summary judgment as a matter of law because
Lee cannot present evidence on exactly what harm, if any, was proximately caused by the
alleged medical malpractice.
To satisfy her summary judgment burden, Lee presents the expert witness report of Dr.
David A. Plager. In his report, Dr. Plager opines the diagnosis of retinoblastoma could have been
made earlier and the tumors would have been smaller with an earlier diagnosis and the visual
outcome would likely have been better. Specifically, Dr. Plager states the family indicated they
told their primary care providers on multiple occasions about Smith’s bilateral retinoblastoma
and opines any child of Smith needs to be referred for ophthalmologic examination as soon as
practicable after birth. Further, Dr. Plager states, it is unlikely JS had normal red reflex tests at
each of the well visits and the macular tumor(s) in this baby would have been quite evident with
a properly performed red reflex test.
Given Lee’s statement she told the doctors of the family history and after review of the
medical records, Dr. Plager states, “the standard of care to refer the offspring of a patient with
bilateral retinoblastoma to an ophthalmologist skilled in detecting retinoblastoma as soon as
practicable after birth and the failure to perform an accurate red reflex test of an infant at birth
and at well baby checks were not met in this case. The breaches in the standard of care caused
subsequent delay in diagnosis allowing for further tumor growth and subsequent damage to the
retina and the child’s ultimate visual outcome.” ECF No. 40-3 at 1-2.
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Accepting this evidence as true and drawing all justifiable inferences in her favor, the
Court concludes Lee presented evidence which creates a triable issue on what harm was
proximately caused by the alleged malpractice. Consequently, Defendant is not entitled to
summary judgment on this basis.
CONCLUSION
For the reasons stated above, Defendant United States of America’s Motion for Summary
Judgment (ECF No. 38) is DENIED.
This matter is set for status conference on June 18, 2020 at 11:00 AM via video
conference. The video conference link and instructions may be requested from Magda Muzza,
Courtroom
Deputy.
She
can
be
reached
at
(210)
244-5021
or
Magda_Muzza@txwd.uscourts.gov. Participants should test the video conference link 24 hours
prior to the conference.
It is so ORDERED.
SIGNED this 5th day of June 2020.
JASON PULLIAM
UNITED STATES DISTRICT JUDGE
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