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Brunson v. United States

November 18, 2009

PATRICIA BRUNSON, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF DOROTHEA C. BRUNSON, DECEASED, PLAINTIFF,
v.
THE UNITED STATES OF AMERICA C/O US DEPT. OF HEALTH & HUMAN SERVICES, DEFENDANT.



The opinion of the court was delivered by: Tucker, J.

MEMORANDUM OPINION

Presently before this Court is Defendant's Motion for Judgment on the Pleadings (Doc. 6) and Plaintiff's Response thereto (Doc. 8). For the reasons stated below, the Court will deny Defendant's Motion.

FACTUAL BACKGROUND

Plaintiff Patricia Brunson ("Plaintiff") is the daughter of, and administratrix of the estate of, Dorothea C. Brunson ("Brunson"). On March 11, 2007, Brunson died from cervical cancer at the age of fifty-three (53).

Defendant Department of Health and Human Services is responsible for and provides funding to the Greater Philadelphia Health Action, Inc. ("GPHA"), a health care facility organized and existing under the laws of the Commonwealth of Pennsylvania. Plaintiff alleges that throughout the relevant time period, Defendant acted through its physicians and agents, including Family Practice Physicians Seema Patel, M.D. ("Patel") and Kathleen Christophe, M.D. ("Christophe").

On or about August 2, 2003, Brunson became a patient for pay with GPHA, and was examined by Patel. Patel recorded difficulty performing a Pap smear, and ordered blood tests, which demonstrated anemia as of August 29, 2003. Compl. ¶¶ 13-14. The Pap smear results returned on September 8, 2003 demonstrated epithelial cell abnormalities and the presence of a-typical squamous cells of undetermined significance. According to Plaintiff, Patel did not order additional testing to determine the significance of the a-typical cells or to complete a differential diagnosis, despite Brunson's continued complaints of bleeding and persistent anemia. Compl. ¶¶ 15-16.

On or about September 29, 2004, Brunson was examined by Christophe, who also performed a Pap smear and ordered blood tests, both of which demonstrated the same results as those obtained from tests performed the previous year. Plaintiff alleges that despite the continuous symptoms, Christophe did not perform a cervical biopsy, or order additional testing to determine the significance of the atypical cells or complete a differential diagnosis.

On or about December 21, 2004, Plaintiff avers that an ultrasonography of Brunson's pelvis revealed multiple rounded, well-circumscribed heterogeneous masses in the myometrium, at least one of which was partially calcified. Compl. ¶ 21. Plaintiff contends that among the radiologist's impressions was the observation that "this could represent endometrial carcinoma. MRI of the pelvis with gadolinium is recommended for further evaluation. Alternatively, biopsy could be performed if clinically indicated." Plaintiff alleges that the radiologist's report was received by GPHA as of January 3, 2005, yet none of the suggested measures were followed by Defendant's agents. Compl. ¶¶ 22-25. Instead, according to Plaintiff, Brunson was unsuccessfully treated with Lupron, while unbeknownst to her, the cancer continued to grow and metastasize.

On May 16, 2005, Plaintiff states that Brunson was admitted to Temple University Hospital for heavy vaginal bleeding and chronic anemia. Then on May 18, 2005, Brunson underwent an endoscopy, including endometrial currettings and a cervical biopsy, which revealed squamous cell carcinoma that was both moderately differentiated and invasive. Compl. ¶ 28. Plaintiff further states that as of July 1, 2005, Brunson's cancer was staged as "at least IIB." Compl. ¶ 29.

Plaintiff alleges that Brunson underwent aggressive radiation and concomitant chemotherapy in an effort to cure her cancer which proved unsuccessful. Brunson was transferred to the Stapeley Nursing Home for palliative care on March 3, 2007, where her condition remained terminal until her passing on March 11, 2007.

On January 15, 2009, Plaintiff filed an administrative claim with the appropriate federal agency. After exhausting her administrative remedies as required under the applicable federal statute, Plaintiff initiated an action in the Eastern District of Pennsylvania for negligence and corporate liability, vicarious liability, wrongful death, and survival, and seek damages in an amount in excess of one hundred fifty thousand dollars ($150,000).

Defendant filed a Motion for Judgment on the Pleadings on October 2, 2009.

LEGAL STANDARD

A motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) is subject to the same standard of review applicable to a motion to dismiss under Rule 12(b)(6). See Turbe v. Gov't of Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991). In considering a motion to dismiss under Rule 12(b)(6), the Court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, viewing them in the light most favorable to the plaintiff. Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d. Cir. 2005). A Rule ...


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