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Shaba v. United States

February 23, 2009


The opinion of the court was delivered by: Hayes, Judge


The matters before the Court are the Motion to Strike (Doc. 25-3) and the Motion for Summary Judgment (Doc. 21) filed by Defendant United States of America.


1. Procedural Background

On April 23, 2007, Plaintiff Nehia Shaba filed a complaint against North County Health Services for professional and general negligence. (Doc. 1.) On June 21, 2007, Plaintiff amended her complaint to name the United States of America as the defendant, pursuant to the Federal Tort Claims Act and 42 U.S.C. § 233(g)(1)(A). (Doc. 3.) Plaintiff alleges that her doctor failed to obtain her informed consent before prescribing certain medication and that this failure caused Plaintiff to suffer severe liver damage and extreme emotional distress.

On September 26, 2008, Defendant filed a motion for summary judgment. (Doc. 21.) On October 22, 2008, Plaintiff filed an opposition to summary judgment. (Doc. 23.) On October 27, 2008, Defendant filed a reply in support of summary judgment (Doc. 25) and concurrently filed a motion to strike (Doc. 25-2) evidence submitted with Plaintiff's opposition to the motion for summary judgment. The Court heard oral argument from the parties on November 3, 2008.

2. Factual Background

On April 28, 2004, Plaintiff went to North County Health Services (NCHS), a federally funded health care clinic, for a routine physical. (Pl.'s Decl. ¶ 1.) At the time of the visit, Plaintiff was 32 years old and married with three children. (Def.'s Notice of Lodgmentin Support of Summary Judgment Ex. K at 8.) Dr. Patricia Chu of NCHS examined Plaintiff and ordered a PPD skin reading to test for the presence of tuberculosis bacteria. (Def.'s NOL Ex. A.) On April 30, 2004, Plaintiff was advised that her PPD skin reading was positive and given a referral for a chest x-ray to determine whether the tuberculosis was active or latent. (Def.'s NOL Ex. B.) Plaintiff was advised that all household members should have a PPD reading as soon as possible. (Id.) Plaintiff did not follow up with the chest x-ray and her family members were not tested at that time. (Pl.'s Decl. ¶ 1.)

On November 9, 2005, Plaintiff returned to NCHS. (Def.'s NOL Ex. C.) Plaintiff was evaluated by a nursing student acting under the direction of Dr. Chu. (Id.) Plaintiff was given a second chest x-ray referral and a prescription for isoniazid (INH), an antibiotic used to prevent latent tuberculosis from becoming active in the future. (Def.'s NOL Ex. E.) On November 10, 2005, Plaintiff had a chest x-ray performed at Radiology Medical Group, Inc. (Def.'s NOL Ex. D.) On November 16, 2005, Plaintiff received a telephone call at her home from Dr. Chu, who informed Plaintiff that the results of the chest X-ray were normal, indicating that Plaintiff had latent tuberculosis. (Pl.'s Decl. ¶ 2.) Dr. Chu instructed Plaintiff to begin the INH treatment. (Id.)

On November 17, 2005, Plaintiff began taking 300 mg of INH per day as prescribed. (Id.) On December 14, 2005, Plaintiff returned to NCHS complaining of nausea and weakness. (Def.'s NOL Ex. H.) Dr. Chu examined Plaintiff and advised her to stop taking the INH in light of her symptoms. (Id.) Dr. Chu ordered a series of tests and noted in the medical record that she would call Plaintiff with the results. (Id.)

On December 16, 2005, Plaintiff returned to NCHS complaining that she had not been able to eat in a week, that she was drinking very little, and that she was constantly nauseous. (Def.'s NOL Ex. I.) Dr. Chu noted in the medical record that Plaintiff was jaundiced and that she was likely suffering from an inflammation of the liver known as INH hepatitis. (Id.) Dr. Chu ordered a hepatitis A, B, and C panel and advised Plaintiff to get rest and drink fluids. (Id.) Dr. Chu scheduled a follow up appointment for the coming Monday, December 19, 2005, and advised Plaintiff to go to the emergency room should her condition worsen during the weekend. (Id.)

On December 17 and 18, 2005, Plaintiff went to the emergency room at Scripps Memorial Hospital due to fainting spells, weakness and nausea. (Pl.'s Decl. ¶ 5.) Plaintiff returned to NCHS on Monday, December 19, where she was again examined by Dr. Chu and referred to the emergency room at Scripps Memorial Hospital. (Def.'s NOL Ex. J.) On December 20, 2005, Plaintiff was transferred to Scripps Green Hospital where she was diagnosed and treated for INH hepatitis. (Def.'s NOL Ex. L. at 8-11.) Plaintiff was discharged on December 24, 2005 and has made a full recovery. (Id. at 11, 14.)

3. Expert Witness Reports and Deposition Testimony

During discovery, Defendant's expert witness, Dr. Robert Neveln, reviewed the medical records and deposition testimony of Plaintiff and issued an initial report which is dated July 12, 2008. (Def.'s NOL Ex. L.) Dr. Neveln stated in his report that a patient with latent TB who does not take INH faces a 10% lifelong risk that the TB will become active in the future. (Id. at 25.) Dr. Neveln opined that the risk that Plaintiff would develop active TB was greater than 10% because the incidence peaks in women between the ages of 25 and 34 years and Plaintiff was 32 at the time. (Id.) The report stated that between 0.001% - .00001% of individuals who take INH to treat latent TB develop INH hepatitis, which is generally a treatable condition that does not cause permanent liver damage. (Id. at 26.) With respect to the propriety of Dr. Chu's decision to treat Plaintiff with INH, Dr. Neveln stated:

I feel that the medical providers at North County Health Services and specifically Dr. Chu did make proper decisions in advising INH therapy in this patient. Indeed, by records the patient's current physicians are considering, in spite of the INH hepatitis occurring, of reinstituting INH therapy at some time in the future. The risks of Ms. Shaba of not instituting [INH] therapy were and are significant, given her marked positive skin test (20 mm) in 2004 and her age. (Id. at 29.) Dr. Neveln stated that a review of the medical records reveals that Plaintiff's hepatitis was entirely resolved by the end of January 2006. (Id. at 26.)

Plaintiff testified during her deposition that she would not have taken INH to treat her latent TB if Dr. Chu had informed her about the risk of hepatitis, nausea and fatigue associated with the medication. (Def.'s NOL Ex. K. at 189.) Plaintiff's expert witness, Dr. Richard Danson, reviewed the medical records of Plaintiff and issued an initial report which was provided to counsel for Defendant on July 18, 2008. (Def.'s NOL to Reply Brief Ex. A.) In the report, Dr. Danson stated that in his opinion, "it was very important for Mrs. Nehaia [sic] to have received informed consent regarding taking INH. If she did not receive this, I believe it was negligent and below the standard of care." (Id. at 1.) Dr. Danson opined that "the medication [INH] is notorious for causing severe hepatitis, and the risks of this ...

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