United States District Court, D. Maine
ORDER ON DEFENDANTS' MOTION TO DISMISS
TORRESEN, UNITED STATES DISTRICT JUDGE
medical malpractice suit, Plaintiffs Frank Lehman and Sandra
Piechocki allege that the Defendants negligently failed to
diagnose or to treat Mr. Lehman's breast cancer in
violation of the Federal Tort Claims Act
(“FTCA”) and Maine common law.
Second Am. Compl. (ECF No. 32)
(“SAC”). The Plaintiffs assert
only state-law claims against Defendants Jeffrey Sedlack,
Waldo County General Hospital, Waldo County Medical Partners
Surgical Services, and Waldo County Healthcare (the
“Waldo Defendants”). Before me
is the Waldo Defendants' motion to dismiss the
Plaintiffs' claims against them pursuant to Federal Rule
of Civil Procedure 12(b)(1). Mot. to Dismiss. (ECF No. 40).
For the reasons that follow, the motion to dismiss is
around January 9, 2013, Mr. Lehman sought treatment from
Defendant David Loxterkamp for a lump in his left breast. SAC
¶ 23. At that time, Dr. Loxterkamp was a Maine licensed
physician employed by Defendant Penobscot Community Health
Center d/b/a Seaport Community Health Center
(“Seaport Health”). SAC ¶
Loxterkamp's exam revealed a lesion near Mr. Lehman's
areola, and he referred Mr. Lehman to Defendant Jeffrey
Sedlack, a general surgeon, for further evaluation. SAC
¶¶ 24-25. On January 14, 2013, Mr. Lehman underwent
a mammogram to assess the lesion, after which the radiologist
recommended that Mr. Lehman have close clinical surveillance
of the mass. SAC ¶ 26. The same day, Dr. Sedlack advised
Mr. Lehman to leave the mass alone and to follow up in two
months. SAC ¶ 27. Two days later, on January 16, 2013,
Mr. Lehman returned to Dr. Loxterkamp for his annual physical
and noted the mass in his breast. SAC ¶ 28.
Dr. Sedlack nor Dr. Loxterkamp reached out to Mr. Lehman
following that January 16 appointment, and Mr. Lehman did not
see either doctor again until July 23, 2014, when he reported
to Dr. Loxterkamp complaining of tenderness in the lump in
his breast. SAC ¶ 30. In the intervening year and a
half-specifically, on July 15, 2013-Seaport Health became a
federally-qualified health center, rendering Seaport Health
and Dr. Loxterkamp employees of the United States Public
Health Service and the United States Department of Health and
Human Services. SAC ¶¶ 15-16.
Mr. Lehman's July 23, 2014, appointment, Dr. Loxterkamp
attempted to remove the mass from Mr. Lehman's breast in
his office. SAC ¶ 31. After extensive efforts, Dr.
Loxterkamp was able to remove only a part of the lesion,
which was sent to pathology. SAC ¶ 31. On July 25, 2014,
Mr. Lehman returned to Dr. Loxterkamp to have the dressing on
his incision changed and for the pathology results, which
revealed an invasive intra-ductal cell adenocarcinoma of
intermediate grade, hormone receptor , and HER 2/neu assay
negative. SAC ¶ 32. Dr. Loxterkamp arranged an oncology
consultation but encouraged Mr. Lehman to go on a planned
vacation before that consult. SAC ¶ 32. On July 28,
2014, Mr. Lehman again reported to Dr. Loxterkamp for an
assessment of the incision site, because Mr. Lehman was
concerned about the amount of bruising in that area. SAC
August 7, 2014, Mr. Lehman saw Dr. Susan O'Connor for his
oncology consultation. SAC ¶ 34. Dr. O'Connor found
it difficult to determine whether some portion of the mass
remained in Mr. Lehman's breast because of significant
swelling, bruising, and fluid in and around the incision. SAC
¶ 34. Believing Mr. Lehman had breast cancer, Dr.
O'Connor referred Mr. Lehman to the Dana Farber Cancer
Institute for a second opinion on that diagnosis. SAC
¶¶ 34, 35. On August 13, 2014, Dr. Laura Dominici
confirmed Dr. O'Connor's diagnosis and scheduled Mr.
Lehman for surgery to stage and treat the breast carcinoma.
SAC ¶ 35.
August 29, 2014, Mr. Lehman underwent a left modified
mastectomy and left sentinel lymph node biopsy. SAC ¶
36. A sentinel node sent to pathology during the mastectomy
was determined to be malignant, necessitating axillary
dissection. SAC ¶ 36. On September 3, 2014, lab results
reveal that 8 of 25 dissected nodes were involved with
metastatic adenocarcinoma. SAC ¶ 37. Because of the
advanced stage of the cancer, Mr. Lehman was treated with
chemotherapy and radiation followed by hormonal therapy with
Tamoxifen. SAC ¶ 38. Mr. Lehman will continue treatment
with Tamoxifen for five to ten years. SAC ¶ 38.
Lehman and his wife, Plaintiff Sandra Piechocki, claim that
Drs. Sedlack and Loxterkamp acted negligently in their
treatment of Mr. Lehman by:
(1) failing to follow the radiologist's January 14, 2013
recommendation to maintain close clinical surveillance over
Mr. Lehman's breast mass;
(2) failing to biopsy the breast mass in 2013;
(3) failing to timely diagnose, treat, or refer Mr. Lehman
for breast cancer; and
(4) as to Mr. Loxterkamp and his employers, attempting to
perform a surgical procedure in an office setting instead of
referring Mr. Lehman to a surgeon, failing to re-image Mr.
Lehman's breast, and ...