UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

JOHN BENEDICT, 

 Plaintiff, Case No. 15-cv-10138 

v Honorable Thomas L. Ludington 

UNITED STATES OF AMERICA, 

 

 Defendant. 

__________________________________________/ 

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 

 Plaintiff John Benedict initiated this matter by filing his complaint against Defendant 

United States on January 14, 2015 seeking damages under the Federal Tort Claims Act 

(“FTCA”), 28 U.S.C. § 2671, et seq. and 28 U.S.C. § 1346(b)(1). See Compl., ECF No. 1. 

Plaintiff alleges that Defendant United States operates the Clare Community Outpatient Clinic 

(“Clare VA”) through its agency, the Department of Veteran Affairs. Id. at ¶ 7. Plaintiff further 

alleges that Defendant through its agents, employees and staff – in particular through Dr. Brenda 

Harshman – breached its duty of care to him by failing to timely recognize symptoms of 

appendicitis and refer to him to the nearest ER. Id. at ¶ 38. As a result, Plaintiff alleges that he 

was required to undergo surgery, and that he continues to experience abdominal pain, 

gastrointestinal issues, and fatigue. Id. at ¶¶ 27-35. 

At the close of discovery, on April 25, 2016, Defendant United States moved for 

summary judgment. See Def.’s Mot. Summ. J., ECF No. 30. Plaintiff filed a response opposing 

the motion on May 16, 2016. See Pl.’s Resp. to Mot. Summ. J., ECF No. 33. For the reasons 

stated below, Defendant’s motion will be denied. 

I. 

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 Plaintiff John Benedict is a veteran and resident of Osceola County, Michigan. See 

Compl. ¶ 6. Defendant United States, through its agency the Department of Veterans Affairs 

(“VA”), operates the Clare VA located at 11775 N. Isabella Road, Clare, Michigan. Id. at ¶ 7. 

The Clare VA provides primary care services to veterans. See Harshman Dec. ¶ 1, ECF No. 30-5. 

While Benedict had previously visited other VA clinics that provide urgent care and emergency 

services to veterans, such as the Saginaw VA facility and the Ann Arbor VA facility, the Clare 

VA does not, and a sign on the door specifically states “No Emergency Services Available.” at ¶ 

2; See also ECF No. 30-6; Benedict Dep. 50. Benedict had also previously used the VA’s 

TeleNurse service, which allows veterans to call a telephone number that will direct them to the 

appropriate medical facility. See Benedict Dep. 51. 

Doctor Brenda Harshman, a duly licensed doctor of osteopathic medicine is an employee 

of the Department of Veteran Affairs, and has provided services at the Clare VA since 2008. See 

Harshman Dec. ¶ 1. Dr. Harshman has been licensed to practice internal medicine for over 20 

years. Id. 

A. 

The relevant facts are largely undisputed. After eating a dinner of fish and salad the night 

of Thursday, August 29, 2016, Plaintiff Benedict began vomiting at around 9:00 PM. He 

continued vomiting until around 6:00 AM on Friday August 30, 2016. After he ceased vomiting, 

Benedict still was experiencing abdominal pain, so he crushed a tramadol he had previously been 

prescribed for an unrelated condition and took it with water. Benedict Dep. 43, 78. While the 

tramadol improved his abdominal pain, the pain did not fully abate. Id. Benedict therefore drove 

himself to the Clare VA to seek treatment at approximately 12:55 PM. 

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 As noted above, the Clare VA does not provide emergency services, and Benedict did not 

feel like he needed emergency services at the time he sought treatment. Benedict Dep. 68. 

Benedict had never previously been treated at the Clare VA, and presented himself as a walk in. 

Id. at 48. At the time he presented, Benedict claimed that his pain level was a 3 on a scale of 10, 

meaning that his pain was uncomfortable but tolerable. See Clare VA Notes p. 1, ECF No. 30-2; 

Pain Scale, ECF No. 30-9. At 12:55 PM his temperature was normal. See Clare VA Notes p. 1, 

ECF No. 30-2. At that time Benedict had a blood pressure of 200/130. Id. By 1:12 PM his 

blood pressure had decreased to 173/108. Id. 

 Benedict met with Nurse Angela E. Johnson at 1:13 PM. Id. at p. 3. In her report 

Johnson noted that Benedict was a veteran complaining of pain in the right upper quadrant of his 

abdomen. Id. She noted that he had denied any “fever, dizziness, lightheadedness, [or] 

numbness/ tingling.” Id. She also noted that Benedict had not consumed any fluid or food since 

the previous night. Id. Nurse Johnson further stated that Benedict reported mild to moderate pain 

in his right upper quadrant, with no pain when lying down but a pain of 4 or 5 when sitting. Id. 

See also Pain Scale, ECF No. 30-9 (describing pain in the 4 and 5 range as bad pain that is 

difficult to ignore and limits activities). She also noted that his bowl sounded hypoactive in the 

upper quadrant. See Clare VA Notes p. 3. 

 Benedict met with Dr. Hartman at around 1:49 PM. Id. at 2. At the time of the 

examination Benedict had a temperature of 98.8 and blood pressure of 176/100. Id. at 3. 

Benedict had stopped vomiting, was no longer nauseous, and was able to keep some liquids 

down. Id. According to Dr. Harshman’s treatment notes, Benedict complained of abdomen pain 

in his right upper quadrant and right lower quadrant. See Clare VA Notes p.1 (“pt walks in with 

c/o abd pain ruq and rlq). Dr. Harshman’s notes indicate that while the tramadol had helped 

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Benedict with the pain, he “still has some pain mid to right upper quad....” Id. Specifically 

Benedict reported some pain in his belly when she pushed on the right upper quadrant of his 

abdomen, however Dr. Harshman reported that Benedict was sitting in a relaxed position, and 

did not appear to be in any pain while sitting. Id. He was able to cough without pain. Id. He was 

also able to lie down and stretch his legs, even hyperextending his hips without grimacing or 

appearing to be in pain. Id. Dr. Harshman reported that Benedict did not report signs of rigidity 

or guarding. Id. She reached a differential diagnosis of “abdominal pain, no acute abdomen [sic] 

R/O food poisoning R/O PUD but has not been taking the indicin R/O gastroenteritis.” Id. Her 

differential diagnosis did not include appendicitis. Id. 

Dr. Harshman directed Benedict to take medicine with sips of water and, noting that his 

condition was already improving, directed him to advance his diet as his condition improved. Id. 

She also directed him to follow up at the Ann Arbor VA the following Tuesday, which was his 

primary clinic. Id. Finally, Dr. Harshman told Benedict to go to the ER or to urgent care if his 

symptoms worsened, specifically if he had a fever greater than 100, experienced increasing 

abdominal pain, began intractable vomiting, felt weak or like he would pass out, or experienced 

any other worsening of any other kind that concerned him. Id. at 3. 

Nurse Johnson also instructed Benedict to seek emergency services if he experienced a 

fever greater than 100, increased pain, weakness, or continuous vomiting. Id. Benedict was not 

prescribed any pain medication. He was released from the Clare VA at around 2:00 PM and 

drove himself home. See Benedict Dep. 88. 

B. 

 At some point that evening after leaving the Clare VA Benedict began continuously 

vomiting. See Benedict Dep. 65. Benedict also began sweating profusely, and experienced pain 

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that he rated as 10 out of 10. Id. at 65-66. Despite his emergency symptoms, Benedict did not 

seek emergency treatment until the following morning. 

 Benedict arrived at MidMichigan Health’s Clare location (“MMH”) at 11:35 AM on 

Saturday, August 31, 2013. See ER Notes, ECF No. 30-3. At 11:36 AM Benedict was triaged 

by Nurse Nicole Tipton, RN. Id. At the time Benedict’s chief complaint was pain in his right 

lower abdomen. Id. at. 4. He informed Nurse Tippins that “he was seen at VA yesterday for 

appendix and was told nothing was wrong – no testing done....” Id. He further stated that his 

“pain increased today and felt really warm approx. 1 hour ago....” Id. Benedict’s temperature 

was 97.3 degrees. Nurse Tippins took Benedict to a room and performed an initial assessment 

shortly thereafter, at 11:40 AM. See Tippins Dep. 25. At the time Benedict reported a pain of 9 

out of 10 in his right upper abdomen. See ER Notes 6. 

Blood labs were ordered for Benedict at 1:04 PM, which came back at 1:17 PM showing 

an elevated white blood cell count of 14.0 K/UL with 90% neutrophils. See Orders MMH-0281, 

ECF No. 30-16; Blood Labs, ECF No. 30-17. An x-ray and ultrasound were then ordered at 1:13 

PM to determine the cause of Benedict’s pain and to rule out possible conditions. The ultrasound 

was ordered to rule out gallstones, which often result in pain in the upper right quadrant of a 

patient’s abdomen. See Tippins Dep. 34; Nunoo Dep. 31-32, ECF No. 30-19. See Orders. MMH 

0273, 0279. While waiting for the tests to be performed, Benedict reported a pain of 9 out of 10 

at 1:35 PM. See ER Notes 6. The x-ray was eventually performed at 2:03 PM, and the 

ultrasound was performed at 4:04 PM. See Images, ECF No. 30-18. 

A CT scan, which may assist in ruling out appendicitis, was not ordered by MMH staff 

until 4:20 PM. See Orders, MMH-0272. At 5:08 PM, Benedict was nauseous and experiencing 

present bowl sounds in all four quadrants of his abdomen. ER Notes 3. Benedict again identified 

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his primary pain location as his upper right abdomen. Id. He reported his pain as 9 out of 10, and 

reported nausea. Id. Nurse Tippins noted that Benedict appeared alert, calm, cooperative, and 

oriented to his own ability. Id. at 2. The CT Scan was performed at 6:51 PM, and was 

“consistent with acute appendicitis.” See Images, MMH-0384. The result of the CT Scan was 

reported to the ER at 7:10 PM. Id. At that time, Nurse Tippins reported that Benedict was 

“moaning out in pain”. ER Notes 2. Benedict received antibiotics for the first time at 7:14 PM. 

See Orders. MMH-0354. 

General Surgeon Robert Nunoo performed a medical history and physical examination of 

Benedict at 9:02 PM. Dr. Nunoo reported that Benedict was “[v]ery tender in the right lower 

quadrant with rebounding, [and] guarding” and that Benedict “present[ed] with severe right 

lower quadrant pain with nausea, vomiting.” See Nunoo Exam MMH-0042, ECF No. 30-21. 

Based on his examination, Dr. Nunoo diagnosed Benedict with appendicitis, and orders a 

“laparoscopic appendectomy, possible open.” Id. Dr. Nunoo commenced the surgery at 9:23 

PM, but was unable to find Benedict’s appendix laparoscopically due to a large inflammatory 

mass surrounding the appendix and cecum. See Op. Rep. MMH-0044-45; ECF No. 30-22. He 

therefore converted to an open procedure with the assistance of another physician, Trung 

Nguyen. See Nunnoo Dep. 36, ECF No. 30-19. After the conversion, Dr. Nunoo discovered that 

Benedict’s appendix had ruptured and there was some stool spillage. See Op. Rep. MMH-0044-

45. Because it was impossible to remove Benedict’s appendix alone due to the inflammatory 

mass, Dr. Nunoo and Dr. Nguyen performed an ileocecectomy, removing Benedict’s cecum as 

well as his appendix. Id. at MMH-00045. 

A few days after the surgery, on September 2, 2013, Benedict alleges that he had not had 

a bowel movement and was experiencing pain at the incision site. See Compl. ¶ 28. He was 

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diagnosed with paralytic ileus and an NG tube was placed. Id. On September 6, 2013, Benedict 

had an elevated white blood count, and by September 9, 2013 he had developed a greenish 

brown discharge from his wound. Id. at ¶¶ 29-30. As a result he was prescribed TPN and 

diagnosed with colcutaneous fistula. Id. at 30-31. After being transferred to the John D. Dingell 

VA medical center in Detroit, Benedict was placed on antibiotics, his wound improved, and his 

diet slowly advanced. Id. at ¶¶ 32-33. 

Benedict was discharged from the hospital on September 16, 2013. Id. at ¶ 34. Benedict 

alleges that following his discharge he required home health care and dressing changes twice 

daily for several weeks. Id. He further alleges that he has experienced ongoing abdominal pain, 

gastrointestinal issues, and fatigue. Id. Benedict concludes that, “[h]ad Dr. Harshman complied 

with the applicable standards of care... definitive treatment would have been available that 

would have avoided both the rupture of his appendix, the need for the ileocectomy, and the 

subsequent complications.” Id. at ¶ 35. 

II. 

Defendant United States now moves for summary judgment on Plaintiff Benedict’s 

claim. A motion for summary judgment should be granted if the “movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 

law.” Fed. R. Civ. P. 56(a). The moving party has the initial burden of identifying where to look 

in the record for evidence “which it believes demonstrate the absence of a genuine issue of 

material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the 

opposing party who must set out specific facts showing “a genuine issue for trial.” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citation omitted). The Court must view the 

evidence and draw all reasonable inferences in favor of the non-movant and determine “whether 

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the evidence presents a sufficient disagreement to require submission to a [fact-finder] or 

whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. 

A. 

The Federal Tort Claims Act (“FTCA”) states that “[t]he United States shall be liable, 

respecting the provisions of this title relating to tort claims, in the same manner and to the same 

extent as a private individual under like circumstances, but shall not be liable for interest prior to 

judgment or for punitive damages.” 28 U.S.C. § 2674. This provision has been held to mean that 

liability of the federal government is determined by the law of the State in which the incident in 

question occurred. See Young v. United States, 71 F.3d 1238, 1242 (6th Cir. 1995). Michigan 

law therefore applies to this FTCA medical malpractice action, and Plaintiff Benedict bears the 

burden of proving: “(1) the applicable standard of care, (2) breach of that standard by defendant, 

(3) injury, and (4) proximate causation between the alleged breach and the injury. Failure to 

prove any one of these elements is fatal.” Cox ex rel. Cox v. Bd. of Hosp. Managers for City of 

Flint, 651 N.W.2d 356, 361 (Mich. 2002) (quotation and citation omitted). If the defendant 

practitioner is a specialist, then the plaintiff bears the burden of proving that the defendant 

“failed to provide the recognized standard of practice or care within that specialty as reasonably 

applied in light of the facilities available in the community or other facilities reasonably available 

under the circumstances, and as a proximate result of the defendant failing to provide that 

standard, the plaintiff suffered an injury.” Mich. Comp. Laws § 600.2912a(1)(b). “As a general 

rule, Michigan courts require expert testimony in medical-malpractice cases, particularly for 

establishing the applicable standard of care and causation.” Kava v. Peters, 450 F. App’x 470, 

475 (6th Cir. 2011). 

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The parties agree that Dr. Harshman is a primary care physician that is board certified in 

internal medicine. See Farber Dep. 23-24. The parties disagree as to whether Dr. Harshman 

breached the applicable standard of care. The parties also disagree as to whether Dr. Harshman’s 

conduct caused Benedict’s ultimate injuries, and whether Benedict was in fact responsible for his 

own injuries under Michigan’s comparative fault doctrine. 

i. 

Through his standard of care expert, Doctor Neil J. Farber, M.D., FACP Plaintiff argues 

that Dr. Harshman breached the applicable standard of care. In his affidavit, Dr. Farber notes that 

he is board certified in internal medicine and that he has spent the majority of his professional 

time practicing as an internal medicine physician. See Farber Aff., ECF No. 30-26. Dr. Farber 

testifies that Dr. Harshman breached the applicable standard of care by failing to perform and 

appreciate thorough patient histories and physical examinations, failing to recognize signs of 

appendicitis or another emergency abdominal condition, failing to properly account for 

Benedict’s ingestion of Tramadol, and failing to immediately direct Benedict to the nearest 

emergency room. Id; See also Farber Dep. 58, 67, 77. 

 Defendant United States argues that Dr. Harshman did not breach the relevant standard of 

care because Benedict did not exhibit any of the typical symptoms of appendicitis. See Mot. 

Summ. J. 18-20; Harshman Dep. ¶¶ 4-5, 9. Plaintiff’s expert acknowledges that Benedict did not 

have the classic signs of appendicitis such as vomiting, constipation, or right lower quadrant 

pain, at the time he was examined at the Clare VA. See Farber Dep. 72. However, Dr. Farber 

argues that Benedict had signs of an emergency condition, such a focal pain and high blood 

pressure, which warranted immediate referral to an ER that had access to immediate labs and 

radiologic imaging. Id. at 73. He also argued that Benedict’s symptoms could have been masked 

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by the Tramadol and by dehydration as a consequence of vomiting all night. Id. at 72. Because 

Plaintiff’s expert and Dr. Harshman disagree about the relevant standard of care and whether 

there was a breach of that standard, there is a material dispute as to a question of fact on this 

point. 

ii. 

 Defendant also argues that summary judgment is appropriate because Plaintiff cannot 

establish causation. Specifically, Defendant argues that Plaintiff’s cecum was removed due to a 

large inflammatory mass, not because of his ruptured appendix. Defendant argues that such 

inflammatory masses are rare, unpredictable, and unrelated to whether a patient’s appendix has 

ruptured. 

In contrast, Plaintiff’s causation expert, Dr. Jordan Goodstein, testified that an 

inflammatory mass adhering to the adjacent bowel generally only happens when a patient has 

perforated. See Goodstein Dep. 17. One of the operating surgeons agreed with this assessment as 

follows: 

Q: Do you have any idea what caused that to happen? 

A: The inflammation? 

Q: Yes. 

A: Yes. I think it was he had appendicitis and he had a perforation, I think that 

was part of the whole picture, you know, that the cecum was inflamed because of 

the perforation and the appendicitis. 

See Nunoo Dep. 20. Dr. Nunoo further explained the possible relationship between the 

inflammatory mass and the perforation as follows: 

 Q: In Mr. Benedict’s case, did he have a perforated appendix? 

 A: He did, yes. 

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Q: And did that contribute to the size of the inflammatory mass he had? 

A: I would think so. I would think a perforation makes the inflammation worse. 

Q: What about it makes it worse? 

A: Because when you have a perforation, that in his case there was some stool, a 

little bit of stool that came out, and that contains bacteria so I think that makes the 

inflammation worse. 

See Nunoo Dep. 42. Plaintiff’s causation expert further testified that an inflammatory mass such 

as the one experienced by Benedict would take at least 24 to 48 hours to develop, and that 

“there’s significantly greater than a 50 percent probability that had he been either put on 

antibiotics or operated on promptly that he wouldn’t have had the inflammatory mass and the 

need for the ileocecectomy and the fistula and the diarrhea.” Id. at 15-16. In other words, 

Plaintiff argues that it is more likely than not that Benedict’s surgery and resulting complications 

would not have occurred if Dr. Harshman had timely diagnosed appendicitis or immediately 

referred Benedict to the nearest facility capable of performing labs and diagnostic tests. This 

remains a material dispute to be resolved by a trier of fact. 

iii. 

Finally, Defendant argues that summary judgement is appropriate because Plaintiff was 

more than 50 percent at fault for his injuries due to his failure to seek emergency medical 

assistance when his symptoms returned on the night of August 30, 2013. Defendant concludes 

that Benedict is therefore barred from recovery under Michigan’s comparative fault doctrine. 

This argument is belied by the very cases cited by Defendant, which establish that it is for the 

trier of fact to allocate fault. See Yax v. Knapp, WL 2683793 at *2-5 (Mich. Ct. App. Sept. 19, 

2006 (“Medical malpractice actions, like other actions for negligence, are subject to the doctrine 

of pure comparative negligence; therefore the [fact-finder] must determine the percentage of the 

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total fault of all persons who contribute to the plaintiff’s injuries....”). Because allocating fault is 

a question for trial, summary judgment is inappropriate on this point. 

III. 

Accordingly, it is ORDERED that Defendant’s motion for summary Judgment, ECF No. 

30, is DENIED. 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: August 23, 2016 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on August 23, 2016. 

 s/Michael A. Sian 

 MICHAEL A. SIAN, Case Manager 

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