Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Scholz v. United States

United States District Court, E.D. Wisconsin

January 25, 2017

BOBBIE JO SCHOLZ, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          DECISION AND ORDER

          WILLIAM E. DUFFIN U.S. Magistrate Judge

         This matter comes before the court on the defendant's motion "to dismiss a portion of the plaintiff's claim against it as time-barred, for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), and failure to state a claim upon which relief can be granted pursuant to Federal Rule of [Civil] Procedure 12(b)(6)." (ECF No. 8.) The matter has been fully briefed and is ready for resolution. All parties consented to the full jurisdiction of a magistrate judge. (ECF Nos. 4, 7.)

         I. Facts and Procedural History

         Because the present matter is before the court on the defendant's motion to dismiss, the court accepts as true the facts alleged in the plaintiff's complaint. Golden v. State Farm Mut. Auto. Ins. Co., 745 F.3d 252, 253, 255 (7th Cir. 2014). According to her complaint, Bobbie Jo Scholz served in the United States Army from 2006 to 2008. (ECF No. 1, ¶ 13.) After discharge she was treated for mental health related issues at the Tomah, Wisconsin Veterans Affairs Medical Center (Tomah VAMC) and hospitalized there from January 10 to February 9, 2011, and from March 3 to March 31, 2011. (ECF No. 1, ¶¶ 14-15.) Upon her discharge from inpatient care at the Tomah VAMC on March 31, 2011 she was prescribed 14 medications and placed on daily outpatient home health monitoring. (ECF No. 1, ¶ 16.)

Throughout the remainder of 2011 and early 2012, Tomah VAMC nurses monitored Scholz' continuing and worsening mental health symptoms that included trouble focusing, loss of motivation, loss of interest in daily activities, high level of depression, decrease in cognitive status, loss of interest in activities, on-going confusion and anxiety, inability to concentrate with even simple daily tasks, and severe symptoms interfering with her ability to function and maintain independence in the community.
On December 14, 2011 health care providers at the Zablocki VAMC verified that Scholz was now taking 16 active medications and despite her diminished mental status obtained Scholz' signature on a consent form for bilateral breast reduction surgery.
On December 22, 2011, a psychological assessment performed at the Zablocki VAMC confirmed Scholz' high level of anxiety, post traumatic stress symptoms, and significant functional and cognitive deficiencies.

(ECF No. 1, ¶¶ 17-19.)

         Scholz underwent elective breast reduction surgery at the Zablocki VA Medical Center (Zablocki VAMC) in Milwaukee on January 6, 2012. (ECF No. 1, ¶ 20.) Contrary to hospital policy, the operating surgeons did not receive Scholz's informed consent prior to the surgery. (ECF No. 1, ¶ 20.) Scholz's medications and mental health status were not considered by the Zablocki VAMC surgeons prior to Scholz's surgery. (ECF No. 1, 121.)

         Following surgery, Scholz suffered from persistent painful open wounds that were subsequently diagnosed as staph infections. (ECF No. 1, ¶ 25.) These and other complications resulting from the surgery led to four additional surgeries over the next two years. (ECF No. 1, ¶ 26.)

         On September 4, 2013, Scholz submitted to the Department of Veterans Affairs a "Claim for Damage, Injury, or Death" (Standard Form 95, or SF-95) alleging that the surgery was performed without her informed consent and that "the surgery and post operative medical care were negligently performed[.]" (ECF No. 1-1 at 2-3.) The Department of Veterans Affairs denied Scholz's claim on April 2, 2014. (ECF No. 1-5 at 1-2.) Scholz sought reconsideration on September 26, 2014. (ECF No. 1-5 at 3-4.)

         While her request for reconsideration was pending, Scholz learned of press reports of negligent care of patients in the same mental health treatment program she attended from January of 2011 until January 25, 2012, at the Tomah VA Medical Center. (ECF No. 1, ¶¶ 15-17, 24; ECF No. 1-2 at 1-3.) Therefore, on September 9, 2013, she filed a second SF-95, now alleging that she received negligent mental health treatment at the Tomah VAMC. (ECF No. 1-2 at 1-3.) She alleged "[s]he was placed in a dangerous situation through improper prescriptions of medications, was unable to properly care for herself resulting in permanent mental, emotional and physical injury." (ECF No. 1-2 at 2.) She also referred to her pending reconsideration request related to her surgery. (ECF No. 1-2 at 2; see also ECF No. 1-3 at 1-2.)

         The Department of Veterans Affairs denied this second claim on September 8, 2015. (ECF No. 1-6 at 1.) Scholz sought reconsideration on October 3, 2015. (ECF No. 1-6 at 2.) On February 18, 2016 the Department of Veterans Affairs denied both of her claims upon reconsideration. (ECF No. 1-7.) Scholz filed the present action on August 8, 2016, alleging various forms of negligence. (ECF No. 1.)

         II. Motion to Dismiss

         "A motion to dismiss pursuant to [Rule] 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted." Firestone Fin. Corp. v. Meyer,796 F.3d 822, 825 (7th Cir. 2015). "A pleader's responsibility is to state a claim for relief that is plausible on its face." Huri v. Office of the Chief Judge of the Circuit Court of Cook Cnty.,804 F.3d 826, 832-33 (7th Cir. 2015). In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.