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Smith-Williams v. United States

United States District Court, W.D. Wisconsin

October 8, 2019



          William M. Conley District Judge.

         Plaintiffs filed suit against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1) (the “FTCA”), for lapses in infection control procedures at the Tomah VA Medical Center. Plaintiffs bring two types of negligence claims: (1) negligent infliction of emotional distress and (2) negligent training, supervision or retention. Presently before the court is defendant's motion for summary judgment on all claims, which does not challenge plaintiffs' prima facie claims, but instead argues that the latter negligence claim is barred by the discretionary function exception and that both are barred by public policy. (Dkt. #89.) For the reasons explained below, defendant's motion will be granted in part and denied in part.


         A. Background

         The plaintiffs are all veterans of the United States' armed forces who live in Wisconsin. They all received dental care from Dr. Thomas Schiller between October 2015 and October 2016 at the Tomah VA Medical Center's Dental Clinic located in Tomah, Wisconsin (“Tomah VA”). The Veterans Health Administration is part of the United States Department of Veterans Affairs and operates the Tomah VA Medical Center, including the Dental Clinic.

         Dr. Schiller began as a staff dentist at the Tomah VA Medical Center on October 5, 2015, where he worked in the Center's Dental Clinic until October 21, 2016. In that position, Schiller was responsible for providing dental care, including bridges, crowns, dentures, extractions, filling cavities, oral examinations, and root canals. He also attended monthly staff meetings held in the clinic.

         There is no dispute that at times during this period, Dr. Schiller failed to wash his hands, wear appropriate personal protective gear, and use sterile, non-personal dental burs. These failures were all breaches of the standards of care established by OSHA, the CDC, ADA and Department of Veterans Affairs. Moreover, lapses in such basic infection prevention practices can result in patient-to-patient transmission blood borne pathogens, allowing infected patients to serve as an indirect source of pathogens for disease transmission to other patients. Finally, front-line staff are frequently the first to notice unsafe practices, but if they do not feel free to report them, then the problem remains unrecognized, such that unsafe practices continue unchecked.

         B. Schiller's Training & General Misconduct

         1. As New Employee

         When Schiller started working as a staff dentist at the Tomah VA Medical Center, he had over 28 years of experience as a dentist. Schiller also considered himself knowledgeable about handwashing, equipment sterilization, and wearing protective equipment, although he acknowledged that when he was in private practice, he was not responsible for infection control. (Schiller Dep. (dkt. #98) 25:12-22, 89:11-15.)

         Nevertheless, at the start of his employment with the Tomah VA, Schiller participated in mandatory, new-employee training. While the parties agree that this orientation lasted two days, they disagree about the specific information covered. (See Def.'s Reply to Pls.' Resp. to Def.'s PFOF (dkt. #136) ¶¶ 5-7.) At his deposition, Schiller testified that he had a two-week orientation at the dental clinic and then two days with Dr. Fisher before being permitted to treat patients. (Schiller Dep. (dkt. #98) 15:5-18.) During the training with Fisher, Schiller learned how to enter data into the computer system, [3] but maintains that Fisher did not cover infection control procedures, sterilization of equipment, or use of personal supplies. (Id. at 15:19-16:17.)

         The Tomah VA required new medical providers to review the Medicine Service Orientation Plan, which is a guideline for the information covered during orientation with a new medical or dental provider. Items on this Orientation Plan that do not apply to a provider's specialty are crossed out as “not applicable.” After reviewing all the pertinent information on the Orientation Plan, the provider signs the bottom of the form to verify completion. The parties dispute whether Schiller received a copy of the VA's policy that expressly prohibits personally owned reusable equipment, but there is no reasonable dispute that Schiller signed off on his Orientation Plan on October 23, 2015. (Def.'s Reply to Pls.' Resp. to Def.'s PFOF (dkt. #136) ¶ 21.)

         Schiller also testified that he never received a training manual, even though he certified that he completed his 2015 and 2016 mandatory training and education. (Compare Schiller Dep. (dkt. #98) 28:14-16 with Schiller Learning History (dkt. #96-4) 2, 5.) The Tomah VA provided copies of the Training Booklet to employees every year as a matter of standard practice, at which point it required each employee to certify their familiarity with the Training Booklet's contents. This training booklet or manual outlined the ePER system, as well as addressed infection control, including explaining the importance of using appropriate personal protective equipment and practicing hand hygiene. In particular, the manual explained that employees should practice hand hygiene before putting on and after taking off gloves, before and after touching a patient, and after touching inanimate objects in the room. The “Infection Control Bloodborne Pathogen (BBP) Training” section of the manual also provided employees with information about bloodborne pathogens, their transmission, and control and prevention, as well as specifically discussed the risks of Hepatitis B, Hepatitis C, and HIV, including workplace practices for employees to follow to avoid contracting these diseases.

         Schiller also signed off on his 90-day placement follow-up on January 25, 2016. On that form, he checked the line acknowledging that he had “received orientation on fire and safety, infection control, safe operation of equipment (where applicable), and security practices in the unit.” (90-Day Placement (dkt. #97-3) 2.)

         2. Continuing Education

         Tomah VA further required all dental and medical professionals to take supplemental infection control training. Nurse Melissa Moore conducted these supplemental trainings and addressed a variety of topics, including hand hygiene compliance, available infection control resources, and common healthcare-associated infections. She also provided her students with a seven-page Bloodborne Pathogen Education handout that described bloodborne pathogens, their transmission, and risk of exposure. That handout specifically identified and differentiated between Hepatitis B, Hepatitis C and HIV, as well as explained how employees could protect against contracting them. Schiller attended this training. (Moore Suppl. Decl. (dkt. #) ¶ 5.)

         Schiller also took other, continuing education classes during his employment. Indeed, Schiller certified that he completed dozens of trainings over the course of his employment. One of the trainings Schiller completed was “Prevention of Workplace Harassment / No Fear Act, ” which he was required to complete within 90 days of hiring and again every two years. The goal of this training is to promote a diverse, fair, inclusive, and harassment-free work environment.[4] This program incorporated the VA's policy against sexual harassment.

         Still, Schiller considered his training to be sporadic and incomplete. (See Schiller Dep. (dkt. #98) 14:7-15.) Specifically, Schiller testified that he did not receive “any copies of policies or procedures, ” but acknowledged being “made aware” of them, including those concerning sanitizing or disinfecting items, handwashing, and personal protective clothing. (Schiller Dep. (dkt. #98) 28:17-25, 53:19-54:9, 54:13-20.) Schiller also reported that he only became aware of the Tomah VA's policy on reusable burs after working there “for two to three months.” (Id. 51:22-52:1.)

         On the other hand, during the February 2016 meeting, staff learned that hand-hygiene would be increasingly monitored, such that staff would discretely monitor the hand-hygiene practices of others. In addition, the clinic's infection control standards are attached to the minutes for both the June and July 2016 staff meetings. Schiller attended all three of these meetings.

         Finally, concerned that he “was not trained adequately” during his employment, Schiller testified that he thrice complained about his work environment, which resulted in errors “due to one person telling [him] one thing, one telling [him] another, so there was no accurate direction sometime.” (Id. 27:14-28:5.) According to Schiller, the Chief of Dental Services, Frank Marcantonio, simply suggested he “take a walk” to calm down after expressing frustration with his lack of training, and he never received any concrete response to his complaints. (Id. 28:6-10.)

         3. Infection Control Breaches

         In December 2015, roughly two months into his employment, Schiller began using his own, personal posts, matrix bands, and dental burs during certain dental procedures.[5]While Schiller discarded the matrix bands and posts after a single use, he would use dental burs on more than one patient. As part of his procedures for operations, Schiller acknowledging keeping a bur block with ten to twelve burs of his own in a drawer in the operatory. However, Schiller did not use these dental burs exclusively, and he was unable to make any estimate as to how many times he may have used his own dental burs on a patient. When he did use one of his personal burs following the posterior crown or bridge procedure, Schiller testified to sterilizing the bur via “cold-soak” method, which involves spraying the bur with Virex, letting it sit for ten minutes, and then cleaning it with a steel brush. Following this procedure, Schiller would place the bur at the back of the rotation line. Finally, Schiller would use a bur on two or three patients before throwing it out because it would become too dull for use.

         In December 2015, Lori Cleaver first witnessed Schiller using his personal equipment on a patient. Over the course of the year she worked with him, she personally observed him reuse dental burs on multiple patients and never saw him wash his hands (or use an alcohol-based hand sanitizer) in her presence in between patients, but she acknowledged he could have washed his hands after leaving the exam room. Although Cleaver consistently observed him wearing protective gloves, which he changed between patients, she would also witness him touching non-sterile objects on occasion and then continue to work on a patient without changing his gloves. Nor did Schiller consistently wear a gown.

         In contrast, Schiller contended that he always washed his hands between patients, along with changing gloves, while acknowledging not always wearing a protective gown. Similarly, Schiller acknowledged that he might have sometimes touched non-sterile items in the operatory before continuing to treat a patient without changing gloves, or at least could not deny that occurred. Schiller also acknowledged being aware of the Tomah VA's policy against reusing burs and using his own equipment.[6] By way of explanation for his deviations from policy, Schiller testified that management did not reinforce them and he was more comfortable __ and therefore more efficient __ using certain of his own instruments.

         Lori Cleaver's own standard practice as a dental assistant involved using Virex II/256 to wipe down surfaces thoroughly between patients in the operatory, including any object the dentist might have touched during the previous appointment. There is no dispute that Cleaver informed Chief of Dental Services Marcantonio about Schiller's reuse of personal protective equipment, his poor hygiene, and his practice of occasionally appearing to be sleeping at his desk. Another dental hygienist was also aware of Schiller's use of unsterile dental burs. (See Ans. (dkt. #29) ¶ 12.)

         Nevertheless, no one within the dental clinic staff, including Marcantonio, reported Schiller's actions to management outside the dental clinic. Tomah VA Facility Director Victoria Brahm blames this failure on the prior director, who permitted a culture of fear to grow and fester at that facility, as opposed to fostering a “see something, say something” culture. Moreover, while defendant contends her deposition testimony is limited to the time period before she became director in October 2015, Brahm actually testified the Tomah VA facility was “in the middle of shifting [in] the right direction” during the time that Schiller was working there. (See Brahm Dep. (dkt. #46) 36:15-37:20.)

         In mid-October 2016, a substitute dental hygienist also saw Schiller use an unsterile dental bur while treating a patient. When Schiller was out of the clinic on October 20, 2016, that substitute dental hygienist reported what she had seen to the acting chief of dental services. The acting chief then reported the incident to more senior managers of Tomah VA Medical Center on October 21, 2016. When confronted, Schiller admitted using and re-using unsterile dental burs, adding that he believed this was a common practice in the private sector, at which point Schiller was removed and suspended from the dental clinic. After Tomah VA leadership outside the dental clinic became aware of the infection-control policy breaches, they authorized an infection control nurse to conduct a risk assessment. After she confirmed deviations from infection controls, but concluded that the risk of infection to the patients was low, the VA leadership fired Schiller.[7]

         C. Subsequent Investigations

         1. CERT

         On October 26, 2016, Director Brahm further appointed William O'Brien “as the fact-finder to determine the situation involving a dental provider utilizing his own supplies when providing direct patient care on Veterans.” (Oct. 26, 2016 Memo. (dkt. #122-6) 1.) As part of his mission, O'Brien was to determine whether other employees: (1) were aware that Schiller had been “using his own supplies when treating patients”; (2) considered Schiller's actions “inappropriate”; (3) who were ...

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