Mishich v. Patterson

Filing 28

ORDER signed by Magistrate Judge Nancy Joseph. IT IS ORDERED that Mishich's Motion to Amend Complaint (Docket # 25 ) is GRANTED. IT IS FURTHER ORDERED that within (14) days of this order, Mishich shall file a second amended complaint wherein she provides additional information in accordance with the instructions set forth above. (cc: all counsel and mailed to pro se party w/ complaint forms)(asc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
COLLEEN MARIE MISHICH,
Plaintiff,
v.

Case No. 21-CV-1014

UNITED STATES OF AMERICA,
Defendant.

DECISION AND ORDER ON PLAINTIFF’S MOTION TO AMEND AND
SCREENING COMPLAINT

Colleen Marie Mishich filed a pro se complaint against Kathleen Mary Patterson, a
neuropsychologist at the Clement J. Zablocki VA Medical Center, alleging that Patterson
inaccurately diagnosed Mishich with schizotypal personality disorder. (Docket # 1.)1 Mishich
now requests leave to amend her complaint to add more information about her claim. (Docket
# 23.) I will grant Mishich’s motion to amend her complaint under Federal Rule of Civil
Procedure 15(a)(2). After screening the complaint, I find that Mishich’s amended complaint
fails to state a claim on which relief may be granted. I will, however, grant Mishich leave to
file a second amended complaint addressing the deficiencies discussed below.
BACKGROUND
Mishich filed her original complaint on August 30, 2021, alleging that on December
14, 2020, she met with Dr. Patterson for neuropsychological testing. (Docket # 1 at 2.)
Mishich alleges that during their conversation, Dr. Patterson noted that Mishich’s medical

The United States of America was later substituted as the defendant in this action in place of Patterson.
(Docket # 24.)
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records contained a letter from a medical provider stating that Mishich had schizotypal
personality disorder. (Id.) Mishich also alleges that Dr. Patterson performed neurological
testing and wrote a report based on her findings, which included a statement that Mishich
had a past diagnosis of schizotypal personality disorder and Dr. Patterson’s own diagnosis of
the same. (Id. at 2–3.) Mishich alleges that she has not been diagnosed with schizotypal
personality disorder in the past or been told that she has the disorder; that no letter exists
stating that she has the disorder; and that there is no diagnosis to that effect in her medical
records. (Id. at 3.) Mishich further alleges that Dr. Patterson’s report is a permanent part of
her medical records and is open to scrutiny by Veterans Affairs staff and outside agencies.
(Id.) She requests that Dr. Patterson’s report and the diagnosis of schizotypal personality
disorder be removed from her medical records and that she be awarded monetary damages in
the amount of $100,000 for physical, mental, and emotional pain and suffering. (Id. at 4.)
Attached to Mishich’s complaint is a letter from the United States Department of Veterans
Affairs denying her administrative tort claim filed under the Federal Tort Claims Act
(“FTCA”). (Docket # 1-1.)
On March 21, 2022, the government filed a motion to dismiss Mishich’s demand for
non-monetary relief. (Docket # 15.) The government argued that the only relief for a violation
of the FTCA is monetary damages, and Mishich failed to identify any other basis for her
request for non-monetary relief in her complaint. (Docket # 16 at 5.) On April 1, 2022,
Mishich filed a motion to amend her complaint. (Docket # 23.)
At an April 7, 2022 status conference, I granted the government’s motion to dismiss
the request for non-monetary relief. (Docket # 24.) I denied Mishich’s motion to amend her
complaint, as she did not file a proposed amended complaint along with her motion. (Id.)

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However, I gave her leave until April 21, 2022 to file another motion to amend along with
the proposed amended complaint. (Id.) Mishich filed a second motion to amend her
complaint, along with a proposed amended complaint, on April 20, 2022. (Docket # 25.)
ANALYSIS
Federal Rule of Civil Procedure 15(a)(2) provides that after a responsive pleading has
been filed, a party may amend his or her pleading only by leave of court or by written consent
of the adverse party. Rule 15(a)(2) states that the court “should freely give leave when justice
so requires.” However, “courts in their sound discretion may deny a proposed amendment if
the moving party has unduly delayed in filing the motion, if the opposing party would suffer
undue prejudice, or if the pleading is futile.” Campania Mgmt. Co. v. Rooks, Pitts & Poust, 290
F.3d 843, 849 (7th Cir. 2002).
Mishich requests leave to amend her complaint to add relevant information to her
case. (Docket # 25.) The proposed amended complaint names Kathleen Patterson as the
defendant. (Docket # 25-1.) In the proposed amended complaint, Mishich alleges that Dr.
Patterson’s report is based on “pencil and paper tests” and “people with similar profiles.” (Id.
at 2.) Mishich also alleges that Dr. Patterson’s diagnostic impression of schizotypal
personality disorder does not meet the criteria in the Diagnostic Statistical Manual of Mental
Disorders. (Id. at 3.) Additionally, Mishich alleges that Dr. Patterson’s review of her chart
was not thorough and that her treatment plan was not comprehensive. (Id.)
According to Mishich, Dr. Patterson copied the schizotypal personality disorder
diagnosis into her medical record prior to having it formalized by Mishich’s psychiatric
provider. (Id. at 4.) Mishich alleges that Dr. Patterson’s report is damaging to her character
and personality. (Id.) She further alleges that on April 5, 2022, her current psychiatrist noted

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in her medical records that, in the provider’s medical opinion, Mishich did not have
schizotypal personality disorder. (Id.)
Again, Rule 15(a)(2) states that the court “should freely give leave” to amend a
pleading “when justice so requires.” Accordingly, I will grant Mishich’s motion to amend her
complaint. However, because the government has certified that Dr. Patterson was acting in
the scope of her employment during the time of the negligence that Mishich alleges (Docket
# 13), the government will remain the named defendant in this action. See 28 U.S.C. §
2679(d)(1).
I next turn to the screening of Mishich’s amended complaint pursuant to 28 U.S.C. §
1915(e)(2)(B)(i)-(iii). “[D]istrict courts are permitted to screen every complaint, regardless of
a plaintiff’s fee status.” Griffin v. Milwaukee Cnty., 369 F. App’x 741, 743 (7th Cir. 2010). The
standards for reviewing dismissal for failure to state a claim under 28 U.S.C. §
1915(e)(2)(B)(ii) are the same as those for reviewing a dismissal under Federal Rule of Civil
Procedure 12(b)(6). See DeWalt v. Carter, 224 F.3d 607, 611–12 (7th Cir. 2000). In evaluating
whether a plaintiff’s complaint fails to state a claim, a court must take the plaintiff’s factual
allegations as true and draw all reasonable inferences in her favor. Id. at 612. Although a
complaint need not contain “‘detailed factual allegations,’” a complaint that offers “‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007)).
Even construing Mishich’s complaint liberally, as I must, the complaint fails to state a
claim on which relief may be granted. The FTCA provides a cause of action for a tort
committed by a federal government employee acting within the scope of his employment. 28

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U.S.C. § 1346(b)(1). Claims brought under the FTCA are governed by “the law of the place
where the act or omission occurred.” Id. “A claim for medical malpractice, as all claims for
negligence, requires the following four elements: (1) a breach of (2) a duty owed (3) that results
in (4) an injury or injuries, or damages.” Paul v. Skemp, 2001 WI 42, ¶ 17, 242 Wis. 2d 507,
520, 625 N.W.2d 860, 865. Furthermore, under Wisconsin law, “a tort becomes ‘complete’
when the plaintiff is injured, and the plaintiff in a negligent misdiagnosis case becomes injured
when he or she first experiences greater harm as a result of the misdiagnosis than existed at
the time of the misdiagnosis.” Paynter v. ProAssurance Wisconsin Ins. Co., 2019 WI 65, ¶ 73, 387
Wis. 2d 278, 304, 929 N.W.2d 113, 126.
Here, Mishich alleges that Dr. Patterson misdiagnosed her with schizotypal
personality disorder. To the extent that Mishich seeks to bring a medical malpractice claim
based on the alleged misdiagnosis, however, her complaint contains no factual allegations
regarding what “greater harm” resulted from the alleged misdiagnosis. As such, the complaint
as it currently stands fails to state a claim for medical malpractice under Wisconsin law.
Mishich also alleges that Dr. Patterson’s report is “damaging to [her] character and
personality.” (Docket # 25-1 at 4.) But to the extent that she seeks to assert a defamation
claim based on the report or alleged misdiagnosis of schizotypal personality disorder, the
FCTA specifically excludes claims for defamation. 28 U.S.C. § 2680(h). Finally, Mishich
asserts that she suffered mental and emotional suffering (Docket # 25-1) but does not bring a
cause of action for emotional distress.
The Seventh Circuit instructs that when a plaintiff’s complaint is dismissed for failure
to state a claim, the general rule is to give at least one opportunity to amend the complaint
before the entire action is dismissed. Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago &

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Nw. Indiana, 786 F.3d 510, 519 (7th Cir. 2015). The court has stated that unless “it is certain
from the face of the complaint that any amendment would be futile or otherwise unwarranted,
the district court should grant leave to amend after granting a motion to dismiss.” Id.
(emphasis in original).
Because it is not certain from the face of the amended complaint that further
amendment would be futile, I will grant Mishich leave to amend her amended complaint in
accordance with this decision. Mishich shall have 14 days from the date of this order to file a
second amended complaint. The second amended complaint must bear the docket number
assigned to this case and must be labeled “Second Amended Complaint.” Mishich is advised
that the second amended complaint replaces the prior amended complaint and must be
complete in itself without reference to the prior amended complaint. Accordingly, matters not
set forth in the second amended complaint are, in effect, withdrawn. Duda v. Board of Educ. of
Franklin Park Public School Dist. No. 84, 133 F.3d 1054, 1057 (7th Cir. 1998). Should Mishich
fail to file a second amended complaint within 14 days, I will dismiss this action with
prejudice.
ORDER
NOW, THEREFORE, IT IS ORDERED that Mishich’s Motion to Amend
Complaint (Docket # 25) is GRANTED.
IT IS FURTHER ORDERED that within (14) days of this order, Mishich shall file a
second amended complaint wherein she provides additional information in accordance with
the instructions set forth above. If Mishich fails to timely submit her second amended
complaint, I will dismiss this action with prejudice.
Dated at Milwaukee, Wisconsin this 29th day of July, 2022.
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BY THE COURT

__________
________
_____________
NANCY JOSEP
JOSEPH
EP
E
PH
United States Magistrate Judge

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