Madison - St. Clair Record

Tuesday, October 22, 2019

Keefe files a third med mal suit against federal government over same oral cancer allegations, seeking $25 million


By The Madison County Record | Jul 19, 2019

Keefe and Rudolf

BENTON – Attorney Tom Keefe of Swansea, with two injury suits pending for the same client over the same events, filed a third. 

He sued the United States for Lisa Vandervelden in U.S. district court on July 10, claiming it failed to recognize oral cancer, test for it, and treat it properly. 

He sought $25 million, as he did when he sued the U.S. for her a year ago. 

Her first suit followed rejection of a claim by Health and Human Services, and the second followed rejection by the Air Force. 

She also seeks damages from St. Louis University in St. Clair County circuit court. 

Keefe started the action in district court last June 28, claiming government negligence caused Vandervelden’s condition to develop and spread. 

He wrote that she suffered pain, anguish, disability, disfigurement, and loss of enjoyment in a normal life, and that she incurred and would incur large sums in medical expenses. 

The court clerk assigned Chief Judge Michael Reagan, who recused himself. 

The clerk assigned District Judge Nancy Rosenstengel, who set trial this September. 

Assistant U.S. attorney Suzanne Garrison moved to dismiss the suit last September, writing that Keefe’s physician submitted a deficient report. 

Garrison wrote that he didn’t address specific acts or omissions by physicians. 

She wrote that he mentioned doctors including some he didn’t name without discussing how each was negligent. 

“Employing such sweeping generalities and conclusory allegations to cover multiple doctors cannot withstand even generous judicial review,” Garrison wrote. 

She asked for an order requiring identities of all providers Vandervelden alleged to have been negligent. 

Keefe opposed the motion on Oct. 1, and Rosenstengel took it under advisement. 

Keefe filed the same complaint in St. Clair County on Oct. 25, except that he named St. Louis University as defendant and didn’t specify an amount of damages. 

He would later add Protestant Memorial Medical Center and St. Elizabeth’s Hospital as defendants. 

Rosenstengel dismissed the claim in her court on March 4, without prejudice. 

She found the physician report conclusory and wrote that it lacked detail regarding actions the doctors should have taken. 

She wrote that it didn’t explain when the malignancy should have been diagnosed, how it should have been diagnosed earlier, and how it should have been treated. 

She also wrote that it didn’t describe a single evaluation that Vandervelden did or did not undergo. 

Rosenstengel granted leave to amend the complaint, writing that it should detail the actions or omissions of each named provider.    

She set an April 1 deadline. 

Instead, Keefe opened another $25 million suit in district court on March 20. 

The court clerk assigned the suit to District Judge Staci Yandle. 

The U.S. moved to dismiss it on May 15. 

On that date Rosenstengel notified Keefe that she’d dismiss the suit in her court if he didn’t amend it by May 29. 

Keefe took two steps the next day, moving to dismiss the suit in Yandle’s court and amending the complaint in Rosenstengel’s court. 

On May 29, the U.S. moved to dismiss the amended complaint. 

Garrison wrote that the physician report remained deficient. 

On July 1, Keefe responded that he filed a report specifying actions and omissions that deviated from the standard of care. He wrote that it detailed what government agents should have done to comply with the standard of care. 

On July 3, for St. Louis University, Timothy Richards of Belleville moved to intervene in Rosenstengel’s court. 

Richards wrote that Vandervelden alleged apparent agency theories against the university and the U.S. in different courts. He also wrote that liability was sought for actions of individuals who were not in fact employees of defendants. 

In federal court, the U. S. might be held vicariously liable for the action of university employees, he wrote, and in state court, the university might be held vicariously liable for the actions of U. S. employees. 

Richards attached an agreement among Scott Air Force Base, St. Elizabeth’s, the university, and Southern Illinois Health Care Foundation, arguing that it obligated the U.S. to assume sole legal responsibility for claims against its agents or employees in a program for training residents. 

He wrote that it created indemnity obligations and that the Illinois Contribution Act created potential liability exposure. 

He wrote that the U.S. had little interest in advancing a proposition that university residents met the standard of care, that the U.S. might choose not to defend the residents and seek immunity and contribution in a proceeding to which the university was not a party and that based on plaintiff’s allegations, the university and the U.S. provided care shoulder to shoulder at the same family practice residency program. 

A week later Keefe opened a $25 million suit against the U.S. in district court. 

The court clerk assigned Senior Judge Phil Gilbert on July 11. 

In the St. Clair County suit, Circuit Judge Heinz Rudolf has set a status conference on Sept. 30.  

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