United States District Court, E.D. Wisconsin
AMENDED ORDER GRANTING DEFENDANTS' MOTION TO
DISMISS (DKT. NO. 14), AND DISMISSING CASE.
PAMELA PEPPER United States District Judge.
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.
October 5, 2016, plaintiff Stanley Tillman filed a complaint
against the U.S. Dept. of Health & Human Services; the
U.S. Government; Michael Weinstein, 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.
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.
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.
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. 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.
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.
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.
The Parties' Arguments
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
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