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Tillman v. United States

United States District Court, E.D. Wisconsin

June 5, 2017



          HON. PAMELA PEPPER United States District Judge.

         The government asks the court to dismiss the plaintiff's medical malpractice and negligence claims because the plaintiff failed to exhaust his administrative remedies and because those claims are time-barred. Because the court agrees that the statute of limitations bars the plaintiff's claims, the court dismisses the case.


         On October 5, 2016, plaintiff Stanley Tillman filed a complaint against the U.S. Dept. of Health & Human Services; the U.S. Government; Michael Weinstein[1], M.D.; Sue Chem; and Outreach Community Health Center. Dkt. No. 1. The court screened the complaint, and determined that the plaintiff did not state any constitutional claims under 42 U.S.C. §1983. Dkt. No. 10. The court also determined that the plaintiff had not stated claims of any kind against the United States government or the Department of Health and Human Services, and dismissed those two defendants from the case. Id. at 6.

         This left the plaintiff's state-law medical malpractice and negligence claims against the remaining three defendants. Id. The court concluded that, despite the fact that the plaintiff's remaining claims were based in state law, the court did have diversity jurisdiction (as far as it could tell at that point) to hear the claims. Id. at 7. It also found that, at that early stage in the litigation, the plaintiff had asserted sufficient facts to state malpractice and/or negligence claims against defendants Outreach and Dr. Weinstein. Id. at 9.

         The found, however, that the plaintiff had not stated either a malpractice or a negligence claim against defendant Sue Chem, and dismissed her as a defendant. Id. at 9.

         After the court issued its order, counsel for the remaining defendants filed a certification, deeming both Outreach and Dr. Weinstein to be employees of the United States (for the purposes of federal statutory tort claims), because during the time of the events recounted in the complaint, Outreach was receiving grant money from a federal agency. Dkt. No. 13. Based on this certification, on January 30, 2017, the clerk's office substituted the United States as the correct defendant.[2] On that same day, the defendant filed a motion to dismiss the case. Dkt. No. 14. The parties have fully briefed that motion; the court will grant it.


         The plaintiff alleges that he visited the Outreach Community Health Center to refill his high blood pressure prescription on April 24, 2013. Dkt. No. 1 at 4. Dr. Michael Weinstein saw him, and wrote the plaintiff a prescription for a different medication. Id. Because the pharmacy no longer had the medication Dr. Weinstein had prescribed, the plaintiff returned to Weinstein, who then handed him a pill bottle which bore the name of the prescription, but not the name of the person to whom the medication had been prescribed. Id. Dr. Weinstein instructed the plaintiff to take one of these pills each day until he was able to get the prescription filled. Id. Dr. Weinstein gave the plaintiff no other instructions, and did not inform him of any side effects of the medication in the bottle. Id.

         The plaintiff alleges that he took one pill a day, as Dr. Weinstein had instructed him, and that on or about May 1, 2013, while driving on the Illinois Turnpike through Rockford, Illinois, he lost consciousness and ran off the highway into a tree. Id. at 5. The plaintiff asserts that he sustained serious injuries, and totaled his car. Id. At the hospital, he learned that the medication had caused his blood pressure to drop so low that he had blacked out. Id. The hospital also informed him that the medication he'd been taking was a heart medication with serious side effects, including fatigue and unconsciousness. Id. He alleges that Dr. Weinstein had given the plaintiff a dose sixteen times the recommended dosage. Id. at 6. For relief, the plaintiff seeks compensatory and punitive damages. Id. at 9.


         A. The Parties' Arguments

         The government's motion to dismiss asserts that the Federal Tort Claims Act (“FTCA”), 42 U.S.C. §233, governs the case. Dkt. No. 15 at 2. The FTCA says that when a plaintiff brings a tort claim (a personal injury claim) against the United States (or its employees), a federal court has jurisdiction only under the FTCA. Thus, the government is correct that the FTCA governs the plaintiff's personal injury claims.

         The government asks the court to dismiss the case because (1) the plaintiff did not timely file an administrative claim with the appropriate federal agency (the Department of Health and Human Services), and (2) the statute of limitations has run. Id. at 2-3. The government asserts that records for the Department of Health and Human Services (“HHS”) show that the plaintiff never filed an administrative tort claim. Id. at 2. The government attached a declaration from Meredith Torres, senior attorney in the general law division of the HHS office of general counsel. Dkt. No. 23. Torres attests that she searched the relevant databases for HHS, and “found no record of an administrative tort claim filed by Stanley Tillman . . . .” Id. at 2. As to the statute of limitations, the government argues that the plaintiff received the pills from Dr. Weinstein in April 2013, but did not file his ...

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