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Lehman v. Loxterkamp

United States District Court, D. Maine

March 29, 2019

FRANK LEHMAN and SARA PIECHOCKI, Plaintiffs,
v.
DAVID LOXTERKAMP, M.D., et al., Defendants.

          ORDER ON DEFENDANTS' MOTION TO DISMISS

          NANCY TORRESEN, UNITED STATES DISTRICT JUDGE

         In this 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 DENIED.

         BACKGROUND

         On or 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 ¶ 13.

         Dr. 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.

         Neither 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.

         During 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 ¶ 34.

         On 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.

         On 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.

         Mr. 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 ...

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