Michelle Day v. United States
2017 U.S. App. LEXIS 14079
| 8th Cir. | 2017Background
- In October 2011 a VA radiologist missed a liver mass on James Deweese Sr.’s CT; the United States conceded the radiologist was negligent.
- In July 2013 imaging revealed a large hepatic mass (11.8 x 9 x 12.6 cm) that was present in 2011 at smaller dimensions (~6.4 x 4.7 x 6.3 cm); autopsy confirmed hepatocellular carcinoma and Deweese died later that month.
- Plaintiffs (estate administrator and family) filed FTCA survival and wrongful-death claims under Arkansas law alleging the missed 2011 diagnosis caused loss of life, lost chance of cure, and pain damages.
- Plaintiffs’ experts: Dr. Stark opined a 30% chance of cure by resection in 2011; Dr. Bentley testified resection was unlikely for Deweese and declined to say whether non-curative therapies would have extended his life beyond 2013.
- Defendant’s expert (Dr. Lessin) testified tumors can be asymptomatic, that pain causation was uncertain, and that pain management options might have been available but causation required a pain expert.
- The district court granted summary judgment for the United States on proximate causation; the Eighth Circuit affirmed, finding plaintiffs’ evidence legally insufficient under Arkansas law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proximate cause of death (survival claim) | Missed 2011 diagnosis deprived Deweese of life-extending or curative treatment (resection, transplant, or non-curative therapies) | Evidence does not show, to a reasonable medical probability, that earlier detection would have extended life beyond July 2013 | Affirmed: expert testimony only showed possibilities, not >50% or reasonable-certainty causation; summary judgment proper |
| Lost-chance doctrine applicability | Lost chance of survival (30% from resection) should be compensable | Arkansas requires traditional >50% chance for recovery; 30% insufficient | Affirmed: Arkansas likely follows traditional rule requiring >50% chance, so 30% loss insufficient |
| Pain damages causation | Missed diagnosis caused pain from tumor and earlier treatment would have reduced pain | Record lacks expert proof that pain was caused by tumor rather than other conditions; treatment benefit speculative | Affirmed: no reasonable-degree-of-certainty expert proof linking pain to tumor or showing treatments would have alleviated it |
| Wrongful-death derivative liability | Wrongful-death claim should survive even if survival claim fails | Wrongful-death is derivative of underlying survival action under Arkansas law | Affirmed: wrongful-death fails because underlying survival claim fails |
Key Cases Cited
- Allen v. United States, 590 F.3d 541 (8th Cir.) (summary-judgment review standard)
- Helmig v. Fowler, 828 F.3d 755 (8th Cir.) (summary-judgment standards and inferences)
- Young v. Gastro-Intestinal Ctr., Inc., 205 S.W.3d 741 (Ark.) (medical-opinion must be to reasonable degree of medical certainty)
- Flentje v. First Nat’l Bank of Wynne, 11 S.W.3d 531 (Ark.) (mere possibility insufficient to create triable fact)
- Holt ex rel. Estate of Holt v. Wagner, 43 S.W.3d 128 (Ark.) (discussing lost-chance doctrine and >50% traditional rule)
- Brown v. Pine Bluff Nursing Home, 199 S.W.3d 45 (Ark.) (wrongful-death is derivative of underlying tort)
- Estate of Hull v. Union Pac. R.R. Co., 141 S.W.3d 356 (Ark.) (wrongful-death claims derivative of decedent’s cause of action)
- Chapa v. United States, 497 F.3d 883 (8th Cir.) (state substantive law governs FTCA claims)
- Adams v. Toyota Motor Corp., 859 F.3d 499 (8th Cir.) (predicting state-law positions when not settled)
- Mader v. United States, 654 F.3d 794 (8th Cir.) (administrative-claim exhaustion under FTCA jurisdictional requirement)