Petersen v. United States of America

Background

Joan Peterson brought a wrongful-death action under the Federal Tort Claims Act (FTCA) individually and on behalf of the heirs and next of kin of Frank Raymond Servantez. The FTCA permits certain claims against the United States when a private person would be liable under the law of the state where the alleged conduct occurred. The parties agreed that North Dakota substantive law governed the professional-negligence claim.

Servantez had end-stage renal disease and received regular hemodialysis. In the weeks before July 27, 2019, he ended or missed multiple dialysis treatments because of restless legs, pain, and discomfort. He went to the Fargo Veterans Administration Health Care System on July 27 with shortness of breath, fluid overload, congestive-heart-failure symptoms, and elevated potassium. He received medication, was admitted, and was examined the next day. The treating physician determined that there was no need for emergency dialysis and planned dialysis for Monday, July 29.

On July 29, shortly after he was transferred to the dialysis unit, Servantez became hypotensive, unresponsive, and pulseless. Resuscitation efforts were unsuccessful, and he was pronounced dead from pulseless electrical activity cardiac arrest.

Administrative exhaustion and jurisdiction

The court found that Peterson had exhausted the required administrative process. She had submitted a Federal Tort Claims Act claim to the agency, and the agency did not make a final decision within six months. The court therefore concluded that it had jurisdiction over the case.

Motion concerning expert declarations

Peterson sought leave to file a motion to strike the United States’ supplemental expert declarations. She argued that the scheduling order did not authorize the declarations and that the government had filed them without permission. The United States argued that the scheduling order and the federal discovery rules permitted supplemental expert disclosures before the deadline for pretrial disclosures.

The court found that the scheduling order was open to two legitimate interpretations. It also found that the government’s supplemental declarations did not offer new opinions or new analyses, but largely expanded on the experts’ original opinions in response to Peterson’s expert. The court treated Peterson’s filing as an actual motion to strike, rather than merely a request for permission to file one, and denied it.

Summary judgment

Summary judgment is appropriate only when there is no genuine dispute about a material fact and the moving party is entitled to judgment as a matter of law. Under North Dakota law, a professional-negligence plaintiff generally must provide expert evidence of the applicable standard of care, a violation of that standard, and a causal relationship between the violation and the injury.

The United States argued that Peterson could not establish the required causal relationship. Peterson’s nephrology expert, Dr. Jonathan P. Tolins, opined that the failure to provide timely dialysis caused fluid overload and congestive heart failure and that the failure to schedule dialysis before Monday caused Servantez’s death. The United States argued that Dr. Tolins had not adequately explained how the alleged failure to provide dialysis on July 27 or 28 caused the cardiac arrest on July 29. It emphasized that Servantez’s potassium level was 4.8 when blood was drawn before dialysis, which was within the stated normal range.

The court concluded that the competing expert opinions presented factual disputes about causation. It stated that resolving the dispute would require weighing evidence and witness credibility, and it held that summary judgment was inappropriate. The court did not decide whether the United States was ultimately liable for professional negligence.

Order

The court ordered:

1. The United States’ motion for summary judgment was DENIED. 2. Peterson’s motion for leave to file a motion to strike the United States’ supplemental expert declarations was DENIED.

The opinion does not enter judgment on the underlying negligence claim.