Smith-Williams, Consuela et al v. The United States of America
Filing
142
ORDER denying 89 Motion for Summary Judgment. Signed by District Judge William M. Conley on 10/8/2019. (jls)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
CONSUELA SMITH-WILLIAMS,
FRED RIVERS, RICHARD MURPHY,
ROBERT RISTOW, ROGER SUHR, and
SALVADOR FUENTES,1
Plaintiffs,
OPINION AND ORDER
v.
17-cv-823-wmc
UNITED STATES OF AMERICA,
Defendant.
Plaintiffs filed suit against the United States under the Federal Tort Claims Act, 28
U.S.C. § 1346(b)(1) (the “FTCA”), for lapses in infection control procedures at the Tomah
VA Medical Center. Plaintiffs bring two types of negligence claims: (1) negligent infliction
of emotional distress and (2) negligent training, supervision or retention. Presently before
the court is defendant’s motion for summary judgment on all claims, which does not
challenge plaintiffs’ prima facie claims, but instead argues that the latter negligence claim is
barred by the discretionary function exception and that both are barred by public policy.
(Dkt. #89.) For the reasons explained below, defendant’s motion will be granted in part
and denied in part.
In light of the court’s denial of class certification (dkt. #88), the court omits language “on behalf
of themselves and others similarly situated” from the caption above.
1
UNDISPUTED FACTS2
A. Background
The plaintiffs are all veterans of the United States’ armed forces who live in
Wisconsin. They all received dental care from Dr. Thomas Schiller between October 2015
and October 2016 at the Tomah VA Medical Center’s Dental Clinic located in Tomah,
Wisconsin (“Tomah VA”). The Veterans Health Administration is part of the United
States Department of Veterans Affairs and operates the Tomah VA Medical Center,
including the Dental Clinic.
Dr. Schiller began as a staff dentist at the Tomah VA Medical Center on October
5, 2015, where he worked in the Center’s Dental Clinic until October 21, 2016. In that
position, Schiller was responsible for providing dental care, including bridges, crowns,
dentures, extractions, filling cavities, oral examinations, and root canals. He also attended
monthly staff meetings held in the clinic.
There is no dispute that at times during this period, Dr. Schiller failed to wash his
hands, wear appropriate personal protective gear, and use sterile, non-personal dental burs.
Viewing the evidence and all reasonable inferences in the light most favorable to plaintiffs as the
non-moving party, the following facts are material and undisputed for purposes of summary
judgment, except where noted below. At the outset, however, the court rejects defendant’s repeated
assertion that, because “[p]laintiffs’ response proposes a new fact that is not directly responsive,” it
“should be disregarded.” (See Def.’s Reply to Pls.’ Resp. to Def.’s PFOF (dkt. #136) ¶¶ 3, 5-7.) As
set forth in the court’s summary judgment procedures, plaintiffs may propose their own “version of
the facts and refer to evidence that supports that version.” (Pretrial Packet Summary Judgment
Procedures (available at dkt. #22) 5.) While ideally plaintiffs’ counsel would have set forth a
separate set of additional, discrete proposed finding of fact unless directly responsive, nothing in
the court’s procedures require that proposed findings in the response be “directly” related to
defendant’s original proposed findings to be considered. Additionally, the United States’
contention that it “has submitted uncontroverted evidence” falls flat in light of plaintiffs’ citation
to contradictory deposition testimony. (See Def.’s Reply to Pls.’ Resp. to Def.’s PFOF (dkt. #136)
¶¶ 16-17.) Finally, its argument that the record is “conclusive” is likewise misplaced where a
reasonable jury could conclude that a contemporaneous certification was false.
2
2
These failures were all breaches of the standards of care established by OSHA, the CDC,
ADA and Department of Veterans Affairs.
Moreover, lapses in such basic infection
prevention practices can result in patient-to-patient transmission blood borne pathogens,
allowing infected patients to serve as an indirect source of pathogens for disease
transmission to other patients. Finally, front-line staff are frequently the first to notice
unsafe practices, but if they do not feel free to report them, then the problem remains
unrecognized, such that unsafe practices continue unchecked.
B. Schiller’s Training & General Misconduct
1. As New Employee
When Schiller started working as a staff dentist at the Tomah VA Medical Center,
he had over 28 years of experience as a dentist.
Schiller also considered himself
knowledgeable about handwashing, equipment sterilization, and wearing protective
equipment, although he acknowledged that when he was in private practice, he was not
responsible for infection control. (Schiller Dep. (dkt. #98) 25:12-22, 89:11-15.)
Nevertheless, at the start of his employment with the Tomah VA, Schiller
participated in mandatory, new-employee training.
While the parties agree that this
orientation lasted two days, they disagree about the specific information covered. (See
Def.’s Reply to Pls.’ Resp. to Def.’s PFOF (dkt. #136) ¶¶ 5-7.) At his deposition, Schiller
testified that he had a two-week orientation at the dental clinic and then two days with
Dr. Fisher before being permitted to treat patients. (Schiller Dep. (dkt. #98) 15:5-18.)
During the training with Fisher, Schiller learned how to enter data into the computer
3
system,3 but maintains that Fisher did not cover infection control procedures, sterilization
of equipment, or use of personal supplies. (Id. at 15:19-16:17.)
The Tomah VA required new medical providers to review the Medicine Service
Orientation Plan, which is a guideline for the information covered during orientation with
a new medical or dental provider. Items on this Orientation Plan that do not apply to a
provider’s specialty are crossed out as “not applicable.” After reviewing all the pertinent
information on the Orientation Plan, the provider signs the bottom of the form to verify
completion. The parties dispute whether Schiller received a copy of the VA’s policy that
expressly prohibits personally owned reusable equipment, but there is no reasonable
dispute that Schiller signed off on his Orientation Plan on October 23, 2015. (Def.’s Reply
to Pls.’ Resp. to Def.’s PFOF (dkt. #136) ¶ 21.)
Schiller also testified that he never received a training manual, even though he
certified that he completed his 2015 and 2016 mandatory training and education.
(Compare Schiller Dep. (dkt. #98) 28:14-16 with Schiller Learning History (dkt. #96-4)
2, 5.) The Tomah VA provided copies of the Training Booklet to employees every year as
a matter of standard practice, at which point it required each employee to certify their
familiarity with the Training Booklet’s contents. This training booklet or manual outlined
the ePER system, as well as addressed infection control, including explaining the
importance of using appropriate personal protective equipment and practicing hand
Schiller testified that he was not aware of ePER, the system for reporting adverse patient events,
and he acknowledged making documentation errors in patient medical records, which he blamed
on his “very bad or poor” training. (Schiller Dep. (dkt. #98) 46:10-22.)
3
4
hygiene. In particular, the manual explained that employees should practice hand hygiene
before putting on and after taking off gloves, before and after touching a patient, and after
touching inanimate objects in the room. The “Infection Control Bloodborne Pathogen
(BBP) Training” section of the manual also provided employees with information about
bloodborne pathogens, their transmission, and control and prevention, as well as
specifically discussed the risks of Hepatitis B, Hepatitis C, and HIV, including workplace
practices for employees to follow to avoid contracting these diseases.
Schiller also signed off on his 90-day placement follow-up on January 25, 2016. On
that form, he checked the line acknowledging that he had “received orientation on fire and
safety, infection control, safe operation of equipment (where applicable), and security
practices in the unit.” (90-Day Placement (dkt. #97-3) 2.)
2. Continuing Education
Tomah VA further required all dental and medical professionals to take
supplemental infection control training.
Nurse Melissa Moore conducted these
supplemental trainings and addressed a variety of topics, including hand hygiene
compliance, available infection control resources, and common healthcare-associated
infections.
She also provided her students with a seven-page Bloodborne Pathogen
Education handout that described bloodborne pathogens, their transmission, and risk of
exposure. That handout specifically identified and differentiated between Hepatitis B,
Hepatitis C and HIV, as well as explained how employees could protect against contracting
them. Schiller attended this training. (Moore Suppl. Decl. (dkt. #) ¶ 5.)
Schiller also took other, continuing education classes during his employment.
5
Indeed, Schiller certified that he completed dozens of trainings over the course of his
employment. One of the trainings Schiller completed was “Prevention of Workplace
Harassment / No Fear Act,” which he was required to complete within 90 days of hiring
and again every two years. The goal of this training is to promote a diverse, fair, inclusive,
and harassment-free work environment.4
This program incorporated the VA’s policy
against sexual harassment.
Still, Schiller considered his training to be sporadic and incomplete. (See Schiller
Dep. (dkt. #98) 14:7-15.) Specifically, Schiller testified that he did not receive “any copies
of policies or procedures,” but acknowledged being “made aware” of them, including those
concerning sanitizing or disinfecting items, handwashing, and personal protective clothing.
(Schiller Dep. (dkt. #98) 28:17-25, 53:19-54:9, 54:13-20.) Schiller also reported that he
only became aware of the Tomah VA’s policy on reusable burs after working there “for two
to three months.” (Id. 51:22-52:1.)
On the other hand, during the February 2016 meeting, staff learned that handhygiene would be increasingly monitored, such that staff would discretely monitor the
hand-hygiene practices of others. In addition, the clinic’s infection control standards are
attached to the minutes for both the June and July 2016 staff meetings. Schiller attended
all three of these meetings.
Finally, concerned that he “was not trained adequately” during his employment,
Schiller testified that he thrice complained about his work environment, which resulted in
In addition, dental assistants Sara Anderson, Lori Cleaver, Lisa Randall, Lisa Schroeder, and Sarah
Wagner all completed this No Fear Training during Schiller’s employment.
4
6
errors “due to one person telling [him] one thing, one telling [him] another, so there was
no accurate direction sometime.” (Id. 27:14-28:5.) According to Schiller, the Chief of
Dental Services, Frank Marcantonio, simply suggested he “take a walk” to calm down after
expressing frustration with his lack of training, and he never received any concrete response
to his complaints. (Id. 28:6-10.)
3. Infection Control Breaches
In December 2015, roughly two months into his employment, Schiller began using
his own, personal posts, matrix bands, and dental burs during certain dental procedures.5
While Schiller discarded the matrix bands and posts after a single use, he would use dental
burs on more than one patient.
As part of his procedures for operations, Schiller
acknowledging keeping a bur block with ten to twelve burs of his own in a drawer in the
operatory. However, Schiller did not use these dental burs exclusively, and he was unable
to make any estimate as to how many times he may have used his own dental burs on a
patient. When he did use one of his personal burs following the posterior crown or bridge
procedure, Schiller testified to sterilizing the bur via “cold-soak” method, which involves
spraying the bur with Virex, letting it sit for ten minutes, and then cleaning it with a steel
brush. Following this procedure, Schiller would place the bur at the back of the rotation
line. Finally, Schiller would use a bur on two or three patients before throwing it out
because it would become too dull for use.
“Matrix bands” are sometimes used during a tooth filing procedure or root canal procedure to
prevent filling material from pushing out. “Posts” are used during some root canal procedures to
stabilize teeth where there is not enough structure to support the so-called “buildup process”
following a root canal. Dental “burs” are used in posterior crown and bridge procedures to grind
down or otherwise shape teeth.
5
7
In December 2015, Lori Cleaver first witnessed Schiller using his personal
equipment on a patient. Over the course of the year she worked with him, she personally
observed him reuse dental burs on multiple patients and never saw him wash his hands (or
use an alcohol-based hand sanitizer) in her presence in between patients, but she
acknowledged he could have washed his hands after leaving the exam room. Although
Cleaver consistently observed him wearing protective gloves, which he changed between
patients, she would also witness him touching non-sterile objects on occasion and then
continue to work on a patient without changing his gloves. Nor did Schiller consistently
wear a gown.
In contrast, Schiller contended that he always washed his hands between patients,
along with changing gloves, while acknowledging not always wearing a protective gown.
Similarly, Schiller acknowledged that he might have sometimes touched non-sterile items
in the operatory before continuing to treat a patient without changing gloves, or at least
could not deny that occurred. Schiller also acknowledged being aware of the Tomah VA’s
policy against reusing burs and using his own equipment.6 By way of explanation for his
deviations from policy, Schiller testified that management did not reinforce them and he
was more comfortable -- and therefore more efficient -- using certain of his own
instruments.
Lori Cleaver’s own standard practice as a dental assistant involved using Virex
II/256 to wipe down surfaces thoroughly between patients in the operatory, including any
Schiller testified that he would have ceased using his personal equipment if someone had told him
to remove, get rid of, and never use again personal equipment kept in his operatory.
6
8
object the dentist might have touched during the previous appointment. There is no
dispute that Cleaver informed Chief of Dental Services Marcantonio about Schiller’s reuse
of personal protective equipment, his poor hygiene, and his practice of occasionally
appearing to be sleeping at his desk. Another dental hygienist was also aware of Schiller’s
use of unsterile dental burs. (See Ans. (dkt. #29) ¶ 12.)
Nevertheless, no one within the dental clinic staff, including Marcantonio, reported
Schiller’s actions to management outside the dental clinic. Tomah VA Facility Director
Victoria Brahm blames this failure on the prior director, who permitted a culture of fear to
grow and fester at that facility, as opposed to fostering a “see something, say something”
culture. Moreover, while defendant contends her deposition testimony is limited to the
time period before she became director in October 2015, Brahm actually testified the
Tomah VA facility was “in the middle of shifting [in] the right direction” during the time
that Schiller was working there. (See Brahm Dep. (dkt. #46) 36:15-37:20.)
In mid-October 2016, a substitute dental hygienist also saw Schiller use an unsterile
dental bur while treating a patient. When Schiller was out of the clinic on October 20,
2016, that substitute dental hygienist reported what she had seen to the acting chief of
dental services. The acting chief then reported the incident to more senior managers of
Tomah VA Medical Center on October 21, 2016. When confronted, Schiller admitted
using and re-using unsterile dental burs, adding that he believed this was a common
practice in the private sector, at which point Schiller was removed and suspended from the
dental clinic. After Tomah VA leadership outside the dental clinic became aware of the
infection-control policy breaches, they authorized an infection control nurse to conduct a
risk assessment. After she confirmed deviations from infection controls, but concluded
9
that the risk of infection to the patients was low, the VA leadership fired Schiller.7
C. Subsequent Investigations
1. CERT
On October 26, 2016, Director Brahm further appointed William O’Brien “as the
fact-finder to determine the situation involving a dental provider utilizing his own supplies
when providing direct patient care on Veterans.” (Oct. 26, 2016 Memo. (dkt. #122-6) 1.)
As part of his mission, O’Brien was to determine whether other employees: (1) were aware
that Schiller had been “using his own supplies when treating patients”; (2) considered
Schiller’s actions “inappropriate”; (3) who were knowledgeable reported Schiller’s
misconduct and, if so, to whom, and if not, why not; and (4) had additional information
to share. (Id.)
O’Brien then produced an evaluative report based on his inquiry. Within a week of
the report, the Deputy Undersecretary for Health and Operations convened a Clinical
Episode Response Team (“CERT”). Although CERT’s initial assessment found the risk
faced by Schiller’s patients was “high,” a further investigation and risk assessment
concluded that Schiller’s patients were at a “low risk” of developing Hepatitis B, Hepatitis
Ultimately, the Tomah VA leadership also punished Lori Cleaver, Schiller’s assigned dental
assistant, for failing to report his lack of infection controls for over a year. Unlike Schiller, however,
she remains employed by the VA Medical Center, likely because the Facility Director Braham was
of the opinion that Cleaver bears some responsibility for this ordeal, but credits, at least in general
terms, her claim that she was afraid to report Schiller outside the dental clinic for fear of reprisal.
7
10
C, and HIV.8 (See Report (dkt. #34-2) 23-24.)
2. OIG Investigation
At the request of U.S. Senators Baldwin, Grassley, and Johnson and Representatives
Kind and Waltz, the VA Office of Inspector General (the “OIG”) also conducted a legally
authorized, separate investigation to assess improper dental infection control practices at
the Tomah VA Medical Center. The OIG concluded that Schiller potentially exposed 592
patients to blood borne pathogens due to improper infection control practices at the
Tomah VA Medical Center Dental Clinic between October 2015 and October 2016. The
OIG further concluded that Schiller continued breaching infection control practices for so
long because of a failure by other dental clinic staff to report the breaches, as well as
problems with inspections of the dental clinic (such as providing advance notification of
inspections). The OIG next “found no documentation that facility leadership [including
the chief of dental services] counseled Dentist A for poor hand hygiene, the noncompliant
use of PPE, sleeping at his desk, or the use of non-VA unsterile burs.” (OIG Rpt. (dkt.
#122-1) 6, 18.) Finally, the OIG Report “found four opportunities between October 2015
and October 2016 when Dental Clinic inspections conducted by different groups . . . might
have revealed noncompliance with facility and VHA directives, handbooks, and policies
regarding infection control,” including that the Compliance Environment of Care “should
In contrast, plaintiffs flatly contend that: “On November 7, 2016, the CERT found that the risk
faced by Dr. Schiller’s patients was high.” (Pls.’ Resp. to Def.’s PFOF (dkt. #118) ¶ 142 (citing
Brahm Dep. (dkt. #46) 53:14-20); see also Pls.’ Add’l PFOF (dkt. #120) ¶ 95.) However, there are
a number of problems with this contention: (1) the court was not provided the CERT report
referenced in Brahm’s deposition; (2) later deposition testimony from Brahm clarified that “newer
information stat[ed that] the risk was low” (Brahm Dep. (dkt. #46) 54:2-13); and (3) the final
report from the Office of Healthcare Inspections also concluded that the risk was “low.”
8
11
have opened the operatory drawers in the Dental Clinic,” which “may have discovered the
unsterile burs.” (OIG Rpt. (dkt. #122-1) 20.) The report (Id. at 26.)
D. Patient Notice of Dental Lookback Clinic
Following the OIG Report, the Tomah VA implemented a process to notify all of
Schiller’s patients, create a dental “lookback clinic,” and offer those patients medical
counseling and free blood testing. In accord with that process, all 592 patients were
notified by Tomah VA via letter that infection control practices that had not been followed
by their dentist, their risk of infection was “low” in the VA’s opinion, and blood testing
was available at no charge.9 (Notification Letter (dkt. #130-1) 1-2.) Each of the plaintiffs
received that November 29, 2016, letter.10
At the time of this letter, Tomah VA Director Braham did not know that some of
Schiller’s patients had tested positive for HIV or Hepatitis before he treated them. Of the
24 patients who tested positive for Hepatitis C, two had a bridge or crown procedure
performed by Schiller. Of the three patients who tested positive for Hepatitis B, none
underwent a bridge or crown procedure performed by Schiller. The only HIV-positive
patient treated by Schiller did not have a bridge or crown procedure performed by him.
There is no dispute that Schiller’s patients who were known to have chronic HIV or
Hepatitis infections potentially could have transmitted these diseases to others if proper
precautions were not followed. Of the 592 patients identified, however, only 57 had a
The Office of General Counsel advised Director Brahm about the level of risk to disclose to
patients.
9
Plaintiff Ristow had also heard about the infection control breaches from a friend, who saw it on
the news, before Ristow received the notification letter.
10
12
crown or bridge procedure performed by Schiller.
It was after the November 29
notification letters went out that CERT also apparently amended its findings, reducing its
own assessment of risk from high to low.
Through the lookback clinic, the Tomah VA offered all 592 patients blood testing.
Almost all of Schiller’s patients reported for testing; only 47 or 48 declined to do so.11 The
appropriate lab protocol was partially designed by the Office of Public Health Surveillance
and Research Department. Fortunately, there have been no new positive cases of HIV, nor
of Hepatitis B or C.12
E. Schiller’s Treatment of Plaintiffs
Schiller performed dry socket treatments, filled cavities, and did oral evaluations for
the plaintiffs.13
The plaintiffs’ dental records specifically reveal the following
For those patients who declined to undergo blood testing, the United States flagged their medical
records so their primary care physicians could at least have follow-up discussions with them.
11
While some individuals tested positive, the VA provided genomic testing to ensure that “no one
contracted something new.” (See Brahm Dep. (dkt. #46) 60:11-61:6.) This follow-up testing was
performed by the VA Public Health Reference Laboratory with consultation by the chief of
infectious diseases at the Madison, Wisconsin, VA hospital.
12
Plaintiffs contend that Smith-Williams also had a crown procedure performed by Dr. Schiller.
(Pls.’ Resp. to Def.’s PFOF (dkt. #) ¶ 56.) As defendants argue, however, a party generally cannot
create a dispute of fact to survive summary judgment by contradicting earlier interrogatory
responses via deposition testimony. In her interrogatory response, Smith-Williams stated that she
twice saw Schiller “for bridge work.” (Smith-Williams Interrog. Resp. (dkt. #33-12) 1.) Likewise,
her treatment records show she saw Schiller for a filling and an oral exam. (Smith-Williams
Treatment Notes (dkt. #57-1) 3, 7.) Finally, plaintiffs’ citation to Schiller’s deposition
acknowledging that there were documentation errors in his medical records also does not create a
dispute of material fact. (See Schiller Dep. (dkt. #98) 46:10-22; id.at 75:13-22.) In short, absent
some contrary evidentiary support, or at least a plausible explanation for Smith-Williams’ now
contradicting her own formal, sworn interrogatory response and all contemporaneous dental
records, she is bound by that response, at least for purposes of the pending motion for summary
judgment.
13
13
appointments:
Plaintiff
Robert Ristow14
Fred Rivers15
Roger Suhr
Consuela Smith-Williams16
Richard Murphy
Salvador Fuentes
Date of Appointment
October 29, 2015
November 24, 2015
December 1, 2015
February 24, 2016
April 6, 2016
March 7, 2016
June 22, 2016
Procedure(s)
Oral evaluation
Oral evaluation
Oral evaluation
Oral evaluation
Cavity Filling
Oral evaluation
Dry Socket
Treatment
An oral evaluation typically involves a dentist examining a patient’s gums and teeth
for dental problems; it is non-invasive. Dry socket treatments are required following a
tooth extraction when a blood clot becomes dislodged, exposing the underlying bone and
nerve tissue. During this procedure, a dentist irrigates debris out of the socket before
packing the area with medicated numbing paste to encourage healing.
Cavity filling
involves the removal of decayed tooth via drilling and then filling the area to prevent
further decay. While a dentist would typically use a dental bur during this procedure, the
kind of dental bur involved would differ from that used during bridge and crown
procedures, which actually grinds the affected tooth into shape.
None of the plaintiffs remember whether Schiller wore a gown for their
At his deposition, Ristow testified that he saw Schiller two days in a row at the end of October
to have cavities filled.
14
15
Rivers does not recall the actual treatment he received at this appointment.
Smith-Williams testified that she “believed” she saw Schiller three or four times, including now
for crown-related work as discussed above. Her medical records, however, show all her crownrelated work at Tomah was performed in 2013 and 2014, well before Dr. Schiller even arrived in
October 2015. While plaintiffs would dispute this based on Schiller’s acknowledgement that he
“made errors in documentation” (Schiller Dep. (dkt. #98) 46:10-22), Schiller also testified that he
would not have omitted procedures. (Id. at 75:13-22.)
16
14
appointments.
Most do not recall his hand hygiene practices, including whether he
touched any non-sterile objects in the operatory. On the other hand, Murphy remembers
Schiller walking into the exam room saying “let’s have a look” before sticking his bare
hands into Murphy’s mouth. Murphy did not report Schiller’s failure to wear gloves to
anyone at the Tomah VA; rather, that incident “just kind of slipped [his] mind after the
exam until [he] got the [notification] letter.” (Murphy Dep. (dkt. #101) 24:15-22.) He
also did not include this in his interrogatory responses, but instead first mentioned it during
his deposition. The only other detail about the appointment Murphy recalls is that Schiller
touched a tray and a light. During the appointment, however, Murphy was not concerned
or distressed about Schiller’s failure to wear gloves.
Following their receipt of the November 29 Notification Letter, each plaintiff took
a blood test; they all tested negative for Hepatitis B and C, as well as HIV. Nevertheless,
they each report suffering from severe emotional distress from the time they received the
notification letter until they received their negative test results. (See Fuentes Dep. (dkt.
#100) 44:23-46:8 (testifying he “was stressed the fuck out,” experienced “a lot of
emotions,” and that the experience triggered “all the feelings that [he] went through in
Iraq”); Murphy Dep. (dkt. #101) 20:19-25, 31:8-16 (testifying he “was terrified” upon
receiving the letter because of “[t]he possibility of being exposed to something that could
eventually kill [him] or anybody that [he] was intimate with,” and that the notification
letter triggered PTSD-related night sweats and nightmares); Ristow Dep. (dkt. #102) 37:325 (testifying that “when [he] get[s] something in [his] head, it’s like . . . watching the
movie ‘Groundhog Day’; it just keeps going around and around and around. The thought
of going through everything . . . and [then] end up getting infected with AIDS or HIV by
15
a dentist that wasn’t doing it right, and a staff that never called him out on it, was just
nerve wracking to [him]” (capitalization altered)); Rivers Dep. (dkt. #103) 43:6-9, 45:4-7
(testifying he “was nervous” and scared and that the notification letter “was a death
notice”); Smith-Williams Dep. (dkt. #104) 18:25-19:10 (testifying she “was floored, mad,
angry, upset, puzzled, [and] frustrated”).) A number of the plaintiffs were also concerned
about passing on any infection to their loved ones and how their families would otherwise
be impacted. (See Fuentes Dep. (dkt. #100) 52:2-53:22; Ristow Dep. (dkt. #102) 42:518; Rivers Dep. (dkt. #103) 46:1-14; Smith-Williams Dep. (dkt. #104) 35:19-36:9; Suhr
Dep. (dkt. #105) 19-10-15.)
F. Expert Opinions
Not having consulted any of the original risk assessments, the United States
retained Dr. David Pegues as an infectious disease expert specifically for this lawsuit.
Plaintiffs also retained Dr. Anthony Cumbo as their expert on infectious disease and
hospital administration. Both experts agree on a number of fundamental facts: (1) the
Hepatitis B virus can live outside the body for at least a week, while the Hepatitis C virus
can live outside the body for up to six weeks; (2) plaintiffs were placed at risk of infection
with these illnesses; and (3) hand hygiene practices are important in reducing the risk of
transmitting infections.
That said, the experts do not agree on everything. Defendant’s expert Pegues opined
that the range of risk of infection to plaintiffs was extremely small, ranging from between
1 in 3.3 billion to 1 in 98,000. In reaching these opinions, he “assumed the risk was the
same in all patients” where Schiller was alleged to “not engage in hand hygiene or touched
16
environmental surfaces.” (Pegues Dep. (dkt. #129) 83:24-84:11.) Pegues also assumed
that Schiller observed proper hand hygiene 80% of the time, based on a study that was
conducted outside the United States. He likewise assumed that Schiller was not infected
with a virus.17 While Pegues assumed only mucus membrane exposure, he recognized that
if a patient were bleeding in their mouth, they would be at a higher risk of infection from
viral exposure. He also assumed that the dental assistant’s use of Virex reduced the viral
load of surfaces in the operatory by 1000 times.
In contrast, Dr. Cumbo opined that Schiller’s actions “put patients at significant
risk of infection with Hepatitis B and C virus, and to a lesser extent, HIV infection.”
(Cumbo Rpt. (dkt. #109) 3.) He added that “all patients seen by Dr. Schiller were placed
at actual risk of cross infection especially with Hepatitis B and C,” while “the patients who
underwent invasive bur procedures were placed at a high risk of infection.”
(Id.)
Regardless, he considered the risk of Hepatitis infection to be more than negligible,
although explaining that it was not possible to assign a specific percentage risk faced by all
of Schiller’s patients because of individualized factors, such as whether the source patient
had an active infection, whether the active infection was being treated, and how the virus
was transmitted. Cumbo also did not consider Cleaver’s practice of wiping down all
surfaces touched by the dentist in the operatory with Virex to be sufficient, as there are
things that “are hard to decontaminate completely.” (Cumbo Dep. (dkt. #128) 83:1687:19 (“I don’t think that mouses and keyboards and everything else is wiped down
completely”; “[Y]ou can’t be 100 percent sure that something is disinfected”; “It’s usually
17
At the time of his deposition, Schiller did not know if he was infected with HIV or Hepatitis.
17
wiped down with a bleach towel or something like that and you’re going to get the flat
surfaces, but the surfaces are porous so virus can live in there and there are cracks and
that’s where these things tend to live.”).
OPINION
Summary judgment is appropriate if the moving party establishes that “there is no
genuine dispute as to any material fact . . . entitl[ing it] to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). Defendant does not attempt to poke holes in plaintiffs’ prima facie
claims of negligent infliction of emotional distress or negligent training, supervision or
retention.
Instead, the defendant contends that it is entitled to summary judgment
because: (1) the discretionary-function exception to the Federal Tort Claims Act bars
recovery for hiring and supervisory decisions; and (2) public policy prevents plaintiffs from
recovering for emotional distress injuries. (Mot. Summ. J. (dkt. #89) 1; Summ. J. Br. (dkt.
#90) 2-3.) The court addresses both grounds in turn below.
I. Federal Tort Claims Act
“The United States as sovereign is immune from suit unless it has consented to be
sued,” and the FTCA “provides a limited waiver of immunity” by creating “a cause of action
for tort claims ‘caused by the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment.’” Lipsey v. United
States, 879 F.3d 249, 253 (7th Cir. 2018) (quoting 28 U.S.C. § 1346(b)(1)). In turn, the
discretionary-function exception is an affirmative defense barring liability for “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
18
involved be abused.” 28 U.S.C. § 2680(a). “[T]he purpose of the exception is to prevent
judicial second-guessing of legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action in tort.” Moore v. United
States, No. 17 C 795, 2018 WL 1035872, at *3 (N.D. Ill. Feb. 22, 2018) (quoting United
States v. Gaubert, 499 U.S. 315, 323 (1991)).
For the discretionary-function exception to apply, however, “the act at issue must
be discretionary rather than mandatory, in that it involves an element of judgment or
choice” and “the government actions and decisions must be based on considerations of
public policy.” Lipsey, 879 F.3d at 254. Put another way, the discretionary-function
exception applies to acts not mandated by “federal statute, regulation or policy” that
Congress intended to shield from liability. See id.; Alinsky v. United States, 415 F.3d 639,
647 (7th Cir. 2005) (describing the two factors as “whether the government employees
violated a specific mandatory statute, regulation, or policy, and second, whether the
conduct involved was the type of conduct that Congress intended to shield from liability”).
In contrast, decisions resulting from an individual’s carelessness, as opposed to the exercise
of discretionary judgment, may not be protected by the discretionary function exception.
In Palay v. United States, 349 F.3d 418, 431 (7th Cir. 2003), the Seventh Circuit
suggested that the discretionary function exception would not apply to prison officials’
failure to protect an inmate from a fight between other inmates if, for example, the officer
had fallen asleep or stepped out for a snack when the altercation broke out. Id. at 431.
“That type of carelessness,” the court reasoned, “would not be covered by the discretionary
function exception, as it involves no element of choice or judgment grounded in public
policy considerations.” Id. at 432. The Eighth Circuit has applied similar reasoning to the
19
careless acts of individuals charged with supervising other employees. For example, in
Tonelli v. United States, 60 F.3d 492, 496 (8th Cir. 1995), the court recognized that a
supervisor’s “[f]ailure to act after notice of illegal action does not represent a choice based
on plausible policy considerations.” Id. at 496.
Defendant argues that while the FTCA serves as a limited waiver of the
government’s sovereign immunity, the “discretionary-function exception” applies to all
employment and supervisory decisions by their very nature. (Summ. J. Br. (dkt. #90) 26.)
Plaintiffs argue that the discretionary-function exception does not apply here because the
United States “had mandatory infection control policies in place[,] as well as policies
mandating that the Chief of Dental Services ensure that the Dental Clinic comply with
these infection control policies,” and that Marcantonio, as the Chief of Dental Services,
“was not making policy-based decisions when he ignored these policies.” (Opp’n (dkt.
#116) 27.)
There is no dispute that in 2013 the United States published the “Veterans Health
Administration Dental Program” and “Infection Control Standards for VA Dental Clinics,”
which established guidelines for VA Dental Programs based on standards from the ADA,
OSHA and CDC. Among other things, these standards govern proper hand hygiene,
personal protective equipment, and processing of reusable medical equipment. Certainly,
these standards allowed for a certain degree of discretion in their implementation. Indeed,
the Infection Control Standards provided that “a single VA dental infection control policy
that fits all dental clinics is not realistic” so each one “needs to create its own policy, based
upon VA standards, including the standards in this document.”
Standards (dkt. #122-4) 7.)
20
(Infection Control
Nevertheless, both the VHA Dental Program and the Infection Control Standards
included specific, mandatory infection control practices. (See, e.g., id. at 18 (“Once used
intra-orally, all burs must be disposed.”); id. at 9 (describing specific instances when “hand
hygiene” should be accomplished); id. at 12 (requiring personal protective equipment for
certain clinical procedures). Further, the VHA Dental Program tasked Marcantonio, as
Chief of Dental Services, with “[e]nsur[ing] that the facility dental program complies with
VHA regulations, directives, handbooks, and policies pertaining to dental clinic
operations.” (VHA Dental Program (dkt. #122-3) 3.)
Under these standards, therefore, Marcantonio was required to ensure compliance
with the Tomah VA’s mandatory infection control practices, and any failure on his part to
do so was, therefore, not an exercise of “discretion” protected by sovereign immunity.
Here, the alleged failure is even more than careless supervision or even taking no apparent
steps to ensure ongoing compliance by use of unannounced audits or encouraging whistle
blowing, but allegedly to foster an atmosphere of non-reporting and instructing Schiller and
his nursing staff on how to cover up non-compliance by removing his personal burs from
the operatory before any announced safety audits.
Those allegations are enough for
plaintiffs to proceed on at least some of their claims based on the defendant’s failure to
supervise.18
II. Public Policy
Defendant additionally contends that public policy prevents plaintiffs’ from
The court will leave to motions in limine the question as to which non-discretionary acts may be
introduced to the jury.
18
21
recovering under state law. (See Mot. Summ. J. Br. (dkt. #90) 15-22.) As the parties agree,
the Wisconsin Supreme Court identified several public policy considerations that may
preclude liability for negligent infliction of emotional distress:
(1) whether the injury is too remote from the negligence;
(2) whether the injury is wholly out of proportion to the
culpability of the negligent tortfeasor; (3) whether in retrospect
it appears too extraordinary that the negligence should have
brought about the harm; (4) whether allowance of recovery
would place an unreasonable burden on the negligent
tortfeasor; (5) whether allowance of recovery would be too
likely to open the way to fraudulent claims; or (6) whether
allowance of recovery would enter a field that has no sensible
or just stopping point.
Bowen v. Lumbermens Mut. Cas. Co., 183 Wis.2d 627, 655, 517 N.W.2d 432 (1994). In
Bowen, the court held that “[w]hen it would shock the conscience of society to impose
liability, the courts may hold as a matter of law that there is no liability.” Id. (citing Pfeifer
v. Standard Gateway Theater, 262 Wis. 229, 238, 55 N.W.2d 29 (1952)).
The parties dispute whether the court should also apply the “contaminated source
rule” to this case. (See Summ. J. Br. (dkt. #90) 16-22; Opp’n (dkt. #116) 18-24.) This
rule requires a negligent infliction of emotional distress plaintiff to offer proof that her
injury was caused by an item coming “from a contaminated source.” Babich v. Waukesha
Memorial Hospital, Inc., 205 Wis. 2d 698, 706, 556 N.W.2d 144 (Ct. App. 1996).19
According to the Wisconsin Court of Appeals in Babich, this requirement “strikes a proper
balance between ensuring that victims are compensated for their emotional injuries and
In Babich the Wisconsin Court of Appeals dismissed an emotional distress claim stemming from
an accidental contact with a hypodermic needle left in plaintiff’s hospital bedsheets, which
punctured her skin but ultimately did not cause infection. Dismissal was appropriate because she
lacked proof that the needle had contact with a “contaminated source” creating a risk of infection.
Id. at 706.
19
22
that potential defendants take reasonable steps to avoid such injuries, but nonetheless
protects the courts from becoming burdened with frivolous suits.” Id. at 706-07. While
the parties agree that Wisconsin courts have only applied this rule to needlestick cases,
defendant contends that its rationale “applies equally to this case.” (Mot. Summ. J. Br.
(dkt. #90) 18.) Plaintiffs respond that the contaminated source rule only applies in
needlestick cases, albeit that such cases may arise outside of healthcare. (Opp’n (dkt.
#116) 24 & n.4 (citing Alsteen v. Wauleco, Inc., 2011 WI App 105, ¶ 17, 335 Wis.2d 473,
802 N.W.2d 212 (Ct. App. 2011)).)
As explained in Alsteen,
the Babich court stated that the [contaminated source] rule
could apply ‘in a variety of contexts’ while discussing a needle
stick case that occurred in a retail store. Thus, the court’s
‘variety of contexts’ statement referred to the fact that needle
stick injuries can arise outside the health care context. The
court did not suggest that the contaminated source rule could
apply in non-needle stick cases.
2011 WI App 105 ¶ 17. However, Alsteen is not a negligent infliction of emotional distress
case, but rather a suit seeking future medical monitoring expenses because of increased risk
of developing cancer due to toxic exposure. 2011 WI App 105 ¶¶ 1-2, 18.
As this court recognized in its motion to dismiss opinion, the factual underpinnings
of this case are more analogous to a needlestick than a mass-pollution exposure. (Mot.
Dismiss Op. & Order (dkt. #28) 6.) Likewise, the court noted that the Babich court
examined three of the aforementioned considerations which are “well-suited to analyzing
whether the contaminated source rule should apply to the unsanitary dental practices [at
issue] here”: (1) whether the “injury was proportionate to culpability; (2) whether imposing
liability would unreasonably burden future defendants; and (3) whether imposing liability
23
would permit a reasonable stopping point.”20 (Mot. Dismiss Op. & Order (dkt. #28) 7
(citing Babich, 205 Wis. 2d at 707-08).)
The parties largely focused on these
considerations.
Defendant argues that the contaminated source rule should apply because plaintiffs
“faced only negligible estimated risks of infection never greater than 1 in 98,000
(0.0000102%) for Hepatitis B, 1 in 1.2 million (0.00000083%) for Hepatitis C, and 1 in
3.3 million (0.0000003%) for HIV,” making their risk of transmission “equally remote as
the low risk in Babich.” (Mot. Summ. J. Br. (dkt. #90) 19.) If it applies, defendant adds,
plaintiffs cannot meet their burden because:
(1) none of the plaintiffs underwent
treatment by Schiller requiring the use of his personal dental burs; and (2) none remember
him engaging in other, allegedly negligent conduct. (Id. at 19-20.) Relatedly, defendant
contends that regardless of whether the contaminated source rule applies, imposing liability
is inappropriate because the negligible risk of infection made the risk of injury too remote
to justify imposing liability and “is out of proportion to the United States’ alleged
culpability.” (Mot. Summ. J. Br. (dkt. #90) 20.)
Plaintiffs respond that the risk and defendant’s culpability are distinguishable from
Babich because: (1) Schiller put 592 people at risk due to his failure to follow infection
control practices over the span of a year; (2) other VA employees knew about his breaches
and failed to stop or report him; (3) Schiller’s breaches were not just “careless[]”; (4)
Schiller treated 28 patients who were known to have Hepatitis B or C or HIV, making
At the motion to dismiss stage, the court declined to apply the contaminated source rule, in part,
because there was no evidence about the “probabilistic risk of infection.” (Mot. Dismiss Op. &
Order (dkt. #28) 7.)
20
24
them possible infection sources; and (5) Dr. Cumbo opined that the risk of infection was
“more than negligible.”21 (Opp’n (dkt. #116) 19-22.) Plaintiffs add that these infections
can survive outside a person’s body for a period of time and that Schiller’s failure to observe
proper hand hygiene practices -- the most important aspect of infection control, according
to Dr. Cumbo -- put his patients at risk regardless of whether he reused his dental burs for
a specific, risky procedure. (See id. at 20.)
As plaintiffs point out, even if the court decided to apply the contaminated source
rule despite Schiller’s allegedly outrageous, ongoing malpractice, it likely is satisfied here
because there is no dispute that Schiller treated 28 patients known to be infected with
Hepatitis or HIV and, therefore, representing a concrete danger, especially as to Hepatitis
transmission. In particular, Schiller’s hands and other items in the operatory may have
been exposed to these viruses, and then possibly exposed the plaintiffs. As plaintiffs point
out, Wisconsin law only requires a showing that they were touched by a contaminated
source, not that they were actually infected nor that any risk of contamination remains.
(Opp’n (dkt. #116) 25.) See Babich, 205 Wis.2d at 706 (“[r]equiring a needlestick victim
to offer proof that the needle came from a contaminated source”). Accordingly, plaintiffs
need not proffer evidence as defendant suggests. (See Reply (dkt. #135) 12.)
Finally, if the risk is too remote, liability may still be inappropriate under Wisconsin
law. There is conflicting expert testimony about the amount of risk Schiller’s patients faced
from his breaches of infection control protocols. Accordingly, the court will await trial
As discussed, Cumbo would not assign a specific percentage risk faced by Schiller’s patients, albeit
due to individualized factors. However, that one expert provides a calculated risk and another says
that the risk cannot be calculated in that fashion suggests a factual dispute.
21
25
testimony to determine whether this consideration warrants precluding liability because of
the remoteness of risk. Likewise, the culpability of defendant compared to the risk posed
to plaintiffs must wait for trial. As does defendant’s contention that permitting liability
would unreasonably burden future defendants, discouraging them from notifying patients
about potential infection control protocol breaches, which would contradict public policy
goals. (Mot. Summ. J. Br. (dkt. #90) 21-22.)
In response, plaintiffs argue that here, too, the case differs from Babich, where the
court was concerned with wasted healthcare resources and the quarantining of HIVpositive individuals.22 (Opp’n (dkt. #116) 22-23.) They add that imposing liability would
“simply” force future defendants “to comply with established infection control standards,”
which would not be “needless or too costly,” nor would “unlimited liability” be the result,
but rather defendants would be further encouraged to adhere to professional standards.
(Id. at 23-24.)
While defendants disagree -- again contending that permitting liability here would
discourage healthcare providers from broadly notifying patients for fear of increased
liability (Reply (dkt. #135) 13) -- the court does not find defendant’s argument convincing,
especially since there is undisputed evidence that at least some of the Tomah VA dental
clinic staff knew about some of Schiller’s infection control breaches. Regardless, the court
will benefit from a full trial record before conducting any remaining judicial balancing that
may be required to decide whether defendant’s possible liability is “unwarranted.”
Plaintiffs note that numerous cases have permitted claims like these to proceed, “and there is no
evidence that these hospitals, or any other hospitals, have refused to treat patients infected with
Hepatitis or HIV.” (Opp’n (dkt. #116) 23.)
22
26
ORDER
IT IS ORDERED that:
1) defendant’s motion for summary judgment is DENIED; and
2) the clerk’s office is directed to contact the parties to establish an early trial
date for this matter.
Entered this 8th day of October, 2019.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
27
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?