U.S. Court of Appeals Affirms Summary Judgment for United States in Medical Malpractice Lawsuit Under the Federal Tort Claims Act

John Lipsey filed a lawsuit on behalf of his minor daughter, J.L., for injuries suffered by her at birth. The United States federal district court judge granted summary judgment in favor of the defendants who were sued for medical negligence under the Federal Tort Claims Act (FTCA).

On June 8, 2009, a criminal complaint was filed against Wenona White in federal court alleging charges of federal bank fraud. White was pregnant at the time with her tenth child. Lipsey was the father. White was scheduled to self-surrender to the U.S. Marshal on July 6, 2009, but she failed to appear in court and was not located until Sept. 10, 2009 when she was taken into custody.

Because White was 35 weeks pregnant by the time she was apprehended, the U.S. Marshals Service faced the challenge of finding a detention facility that was able to meet White’s late-pregnancy healthcare needs. The Marshals Service arranged for White to be housed at the Jerome Combs Detention Center (JCDC), a Kankakee County, Ill., facility that has an intergovernmental agreement with the Marshals Service. The JCDC had a full-time medical staff and a relationship with an obstetrics practice to handle the obstetric needs of its prison population.

When White arrived at JCDC on Sept. 11, 2009, she indicated in her intake form that her due date was Oct. 18, with her last medical exam being in August. She took prenatal vitamins. The intake officer also took her blood pressure, which was high at 161/86. No medical history was taken. White does not recall whether she told that intake officer of any problems with her ninth pregnancy, but she acknowledged that she did not inform the intake officer that with her ninth pregnancy, she had a placenta previa. That ninth pregnancy had resulted in an emergency cesarean section at 34 weeks. There was no evidence that such information was ever communicated to any of the defendants in this case.

White signed a HIPAA release authorizing the release of her hospital records from Provident Hospital where she received her prenatal care earlier in her pregnancy. A nurse at JCDC testified that although those records were requested by the hospital, it was reported that no records of White, as a patient there, were noted. Physician records from St. Mary’s Hospital after J.L.’s birth were sent promptly.

Over the next ten days, White had a number of contacts with JCDC medical staff. She was seen by a nurse on Sept. 12; White reported that she was not having any problems with her pregnancy. On Sept. 16, another JCDC nurse met with White in the clinic. According to this nurse’s notes, White reported that it was her tenth pregnancy and that she had regular checkups with an obstetrician in Indiana and denied having any problems with the pregnancy. On Sept. 16, 2009, the log book entry showed that White reported labor pains. However, White admitted that she told a female nurse that she was not having any problems with her pregnancy.

The appointment with an obstetrician proved problematic. The obstetrician who routinely provided care to JCDC patients refused to take White as a patient that late in her pregnancy. The Chief of Corrections at JCDC asked that White be transferred to a different facility where obstetrical care might prove more accessible but was informed that it was impossible to move her. On Sept. 18, a JCDC physician assistant attempted to have White come to the healthcare unit, but she refused. White also signed a refusal form indicating that she was informed of the risks to her health and health of her pregnancy. She was informed that without weekly gynecological exams, there was no way to determine cervical dilation or the position of her fetus. White admits that she signed a refusal form.

On Sept. 21, an obstetrician had called back and agreed to see White the next Tuesday. Before that could happen, on Sept. 22, White awoke with abdominal back pain and called for assistance at 5:10 a.m. The fire department received a dispatch at 5:13 a.m. The ambulance crew arrived at 5:22 a.m. and White arrived at St. Mary’s Hospital in Kankakee at 5:52 a.m. The hospital staff took her medical history at that time, and she denied having any complications during her pregnancy or any chronic medical problems.

At 6:07 a.m., the nurse was unable to find any fetal heart tones and an ultrasound a minute later revealed a very slow fetal heart rate. At 6:15 a.m., the doctor decided to perform an emergency cesarean section and J.L. was delivered at 6:33 a.m. During that cesarean section, it was discovered that White had suffered a complete abruption of the placenta, which stopped the flow of oxygen to J.L. Although J.L. was not breathing when she was delivered, the doctors were able to resuscitate her and transport her to a neonatal intensive care unit at the University of Chicago Hospital. Tragically, as a result of oxygen deprivation, J.L. has severe, permanent physical and mental disabilities. The abruption that resulted in the oxygen deprivation likely occurred either in the ambulance or at the hospital because J.L. would not have survived if it had occurred earlier than that.

J.L.’s father, John Lipsey, sued under the Federal Torts Claim Act, 28 U.S.C. 2671, alleging medical malpractice. The Seventh Circuit Court of Appeals affirmed summary judgment for the defendants. It was stated that placement and retention of White at JCDC fell within the discretionary function exception to FTCA’s waiver of sovereign immunity. There was no indication that White needed immediate care before the morning of J.L.’s birth when the staff was promptly called. The district court held that Lipsey, on behalf of White, did not establish that the medical defendants’ failure to provide the necessary medical care was willful and wanton. The appeals panel held that the district court properly applied the law to the defendants who were before the court.

Accordingly, the district court properly granted summary judgment and that decision was affirmed.

Lipsey v. United States, 17-1063 (U.S. Court of Appeals for the Seventh Circuit, Jan. 4, 2018).

Kreisman Law Offices has been successfully handling birth trauma injury lawsuits, medical negligence lawsuits and nursing home negligence lawsuits for individuals, families and loved ones who have been injured, harmed or killed by the carelessness or negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and its surrounding areas, including Bolingbrook, Calumet City, Dolton, Darien, Franklin Park, Gurnee, Highwood, Inverness, Frankfort, Lansing, Chicago (Garfield Park, Logan Square, Irving Park, Sauganash, Edgebrook, Norwood Park, Edison Park, Lincoln Park, Greek Town, Pilsen), Oak Lawn and Brookfield, Ill.