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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

EVELYN TELLER, the Mother of Decedent

Timmy Teller, and ELAINE TELLER,

individually, and as Personal Representative

of the Estate of Timmy Teller, Deceased,

Plaintiffs,

vs. No. _______________

THE UNITED STATES OF AMERICA,

Defendant.

COMPLAINT UNDER THE FEDERAL TORT CLAIMS ACT FOR WRONGFUL 

DEATH DUE TO MEDICAL NEGLIGENCE

Plaintiff, Elaine Teller, avers for her complaint the following:

1. Plaintiff Evelyn Y. Teller is the mother of the decedent. She resides on the 

Navajo Indian Reservation in Chinle, Arizona.

2. Plaintiff Elaine Teller, is a resident of Chinle, Arizona and serves in this 

wrongful death action both in the capacity of personal representative of the Estate of

Timmy Teller, and as a potential wrongful death beneficiary. She is a sister of the 

decedent. She was designated as the personal representative of the estate of Timmy 

Teller by the Navajo Nation courts on April 21, 2015, (Exhibit 1)

3. Although not listed separately as plaintiffs, other potential wrongful death 

beneficiaries are:

a. Cornelia Chee is a sister of the decedent. 

b. Cynthia Grayson is a sister of the decedent.

c. Francis Teller is a brother of the decedent.

d. Stella Begay is a sister of the decedent.

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e. Margaret Fulton is a sister of the decedent.

f. Catherine Rubio is a sister of the decedent.

g. Pete Teller is a brother of the decedent.

h. Anita Teller is a sister of the decedent.

2. Plaintiff brings this civil action for compensatory damages arising from the 

negligence of employees/personnel at the Chinle Comprehensive Health Care Facility 

("CHINLE") located in Chinle, Arizona, a facility operated by the United States through 

the Department of Health and Human Services and the Indian Health Service.

JURISDICTION AND VENUE UNDER THE FEDERAL TORT CLAIMS ACT

3. Plaintiff's claims in this action are authorized by and are brought pursuant 

to the provisions of the Federal Tort Claims Act (FTCA), 28 U.S.C. §1346(b) and 28 

U.S.C. §2671, et seq., and also pursuant to 28 U.S.C. §1331.

4. Federal statutes, including the FTCA, vest this court with exclusive 

jurisdiction over plaintiff's claims in this case.

5. The FTCA makes the United States liable for the negligent acts and 

omissions of federal "employees."

6. Federal employees include, but are not limited to, employees of the Indian 

Health Service and the Chinle Comprehensive Health Care Facility.

7. At all times material to this case defendant United States controlled, 

owned, and operated CHINLE.

8. CHINLE provides medical care to Native Americans who are members of 

recognized tribes pursuant to various federal statutes and other law.

9. At all times material to this case defendant United States, acting through 

the Indian Health Service, held itself out to have the ability to provide medical care to 

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members of the Navajo Nation and plaintiff, at its Chinle hospital, including the ability 

to address decedent's chronic health problems, including his cardiac condition.

10. Plaintiffs, through legal counsel, presented to the Department of Health 

and Human Services in May, 2015, a timely administrative claim under the FTCA 

alleging negligence by federal employees at CHINLE in the provision of medical care to 

decedent. (Exhibit 2). 

11. Defendant has had more than six months to investigate plaintiff's claim 

and to attempt settlement with plaintiff.

12. By law, a claim presented under the FTCA is deemed denied by the United 

States six months after it is presented, and a plaintiff is then authorized to file a lawsuit 

against the United States.

13. Despite plaintiff providing defendant with all documentation requested, 

(Exhibit 3), defendant has not attempted to settle with plaintiff and has not denied her 

claim.

14. Plaintiff has now exhausted her administrative remedies as required by 

the FTCA.

15. Plaintiff is authorized by statute to file this action in the United States 

District Court for the District of Arizona.

16. Plaintiff is a tribal member of the Navajo Nation. At all material times, 

decedent was also a tribal member of the Navajo Nation. Both plaintiff and decedent 

resided in or near Chinle, Arizona.

17. Venue is proper in this district under 28 U.S.C. §1402(b).

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FACTUAL BACKGROUND

18. Decedent Timmy Teller's significant, preexisting medical conditions were 

Down's Syndrome and rheumatic valvular heart disease with murmur. Due to his heart 

disease and the chronic heart murmur related to the heart disease, he was maintained 

prophylactically with regular administration of the antibiotic Erythromycin 250 mg by 

mouth, twice a day for subacute endocarditis ("SBE"). His medical history was well 

known to personnel at the Chinle Comprehensive Health Care Facility.

19. On August 22, 2013, Timmy underwent a routine dental procedure of 

cleaning and fillings. He was prescribed 600 mg of Clindamycin for additional SBE 

prophylaxis and he was also prescribed Lorazepam 3 mg for anxiety related to the dental 

procedure.

20. On October 4, 2013, approximately 6 weeks and 1 day after the dental 

procedure, Timmy was brought to the CHINLE emergency room with complaints of 

fever and coughing for 3 weeks. He was seen by Timothy Obernuefemann, M.D. During 

this visit, his vital signs were recorded at: temperature 97.2, respiratory rate 36, pulse 

120, blood pressure 129/54, oxygen saturations at 95% on room air, and a pain level of 

3/10. Timmy's physical examination was limited. No labs were drawn, no cultures 

were drawn, and there was no differential diagnose made, offered despite Timmy's 

preexisting heart murmur, SBE, and exhibiting 2 of 4 diagnostic criteria for systemic 

inflammatory respiratory syndrome ("SIRS"). Timmy was diagnosed with bronchitis 

and an upper respiratory infection and was told to take Claritin. 

21. On October 5, 2013, Timmy returned to the CHINLE emergency room, 6 

weeks and 2 days after the dental procedure, with continued coughing and fever. He was 

seen by Timothy Obernuefemann, M.D. His vital signs were recorded at: temperature 

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98.0, respiratory rate 20, pulse 116, blood pressure 127/57, oxygen saturations at 95% 

on room air, and a pain level of 5/10. Timmy's physical examination was limited and his 

heart was not auscultated, despite his preexisting condition. Routine labs were ordered, 

but no cultures were ordered. During the blood draw for the labs, hemolysis of the 

blood sample occurred during the blood draw. The blood draw was not repeated despite 

its improper collection. No urinalysis was ordered. Timmy was diagnosed with 

Bronchitis. He was prescribed Bactrim DS, Tylenol, Ibuprofen, and Zyrtec.

22. On October 9, 2013, Timmy returned to the CHINLE Medicine Outpatient 

Clinic, 6 weeks and 6 days after the dental procedure with a continuation of his cough, 

nasal congestion, and low grade fever. He was seen by Eric Ritchie, M.D. His vital signs 

were recorded at: pulse 118, blood pressure 150/64, respiratory rate 20, oxygen 

saturation 96%, pain 0/10. The prior prescription of Bactrim DS was stopped due to 

twitching. No labs were drawn. No cultures were drawn. There was no differential 

diagnosis developed despite Timmy's preexisting heart murmur, SBE, and again 

exhibiting 2 of 4 diagnostic criteria for SIRS. Timmy was diagnosed with a cough and 

hypertension "due to anxiety."

23. On November 6, 2013, Timmy returned to the CHINLE Medicine 

Outpatient Clinic, 10 weeks, 6 days post dental procedure for laboratory results, 

complaints of difficulty walking on his right leg, and fever. He was seen by Eric Ritchie, 

M.D. His vital signs were recorded at: temperature 98.1, pulse 118, blood pressure 

124/67, respiratory rate 20, pain 6/10. Labs were drawn and reviewed. Significant 

laboratory results were: SED rate high at 54, CRP1 high at 76.4, and urine had large red 

 1 SED and CRP rates are inflammatory markers.

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blood cells. No blood cultures were drawn. Throat culture was negative. Physical 

examination of the heart indicated a "regular rate, no murmur appreciated." 

24. Dr. Ritchie noted elevated serum markers for inflammation (SED and 

CRP) and blood and protein in Timmy's urine, but suspected a viral illness with a 

possible component of reactive arthritis. It was noted that the administration of 

Ibuprofen in the clinic resolved the low grade temperature, but there was no repeat 

temperature taken to verify the accuracy of this. Additionally, it was noted that the 

administration of Ibuprofen showed "...improvement in HR to 119" yet Timmy's heart 

rate upon presentation was 118. Timmy was discharged with instruction to take 

Ibuprofen as needed for pain, return in one week for a repeat urinalysis and BMP2, and 

if the symptoms persisted, consider CT imaging of the kidneys and/or a nephrology 

referral.

25. On November 12, 2013, Timmy returned to the CHINLE Medicine 

Outpatient Clinic, 11 weeks, 5 days post dental procedure for laboratory results and right 

leg pain. He was seen by Eric Ritchie, M.D. His vital signs were recorded at: 

temperature 97.8, pulse 113, blood pressure 101/46, respiratory rate 22, oxygen 

saturation 96%, pain 2/10. A physical examination was completed, but did not include 

examination of Timmy's heart, lungs, or abdomen. Timmy's labs slightly improved with 

a decline in his CRP from 72 to 67 and moderate vs. large blood cells in his urine. No 

blood cultures were drawn. Dr. Ritchie diagnosed Timmy with right lower extremity 

pain and cerumen impaction. He only treated Timmy for cerumen impaction in his ear 

during this visit.

 2 BMP - basic metabolic profile laboratory testing.

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26. On November 14, 2013, Timmy returned to the CHINLE Medicine 

Outpatient Clinic, 12 weeks post dental procedure. The time was 21:47 (9:47 p.m.). His 

vital signs were recorded at: temperature 101.6, pulse 132, respiratory rate 32, oxygen 

saturation 92%, pain 4/10. Timmy was visibly shaking. He was referred to the CHINLE 

Emergency Room.

27. On November 15, 2013, at 01:20 a.m. (3 hours, 33 minutes after 

presenting to the Medicine Outpatient Clinic), Timmy was seen at the CHINLE 

emergency room by Dr. Antonio Duran, 12 weeks, 1 day post dental procedure, upon 

referral from the CHINLE Medicine Outpatient Clinic. His vital signs were recorded at: 

temperature 96.5, pulse 132, respiratory rate 22, blood pressure 133/57. They were rerecorded again at: pulse 115, respiratory rate 20, and re-recorded a third time at: pulse 

100-101, respiratory rate 18-20, blood pressure 118/62, blood pressure 126/59. The 

purpose of the ER visit was documented as UTI and dehydration. Urinalysis indicated 

moderate blood in the urine with large red blood cells. Routine labs were drawn 

including cultures. Despite Timmy's complaints of fever, cough, and chills and the 

notation of "Pt shaking" from the CHINLE Medicine Outpatient Clinic triage report, Dr. 

Duran noted that the patient is in "no apparent distress" with "normal [breathing] 

without complaint."

28. Dr. Duran prescribed Keflex 500 mg three times per day for 10 days and 

Cipro 500 mg twice a day for 10 days with discharge instructions to follow up in the 

Clinic on Monday, November 18, 2013. The medical records do not indicate a final 

diagnosis.

29. On November 15, 2013, at 09:35, a pharmacy note indicates the Cipro that 

Dr. Duran prescribed can cause QT-prolongation and this medication was changed to 

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cephalexin 500 mg three times a day for 10 days. This pharmaceutical note indicates 

that Timmy was treated in the emergency room for a UTI (urinary tract infection).

30. On November 16, 2013, the blood cultures that were drawn during 

Timmy's CHINLE emergency room visit on November 15, 2013, came back 4/4 positive 

for streptococcus anginosus (gram positive cocci in chains). Streptococcus anginosus is 

resistant to Clindamycin and Erythromycin. The laboratory notified registered nurse 

Lisa Tidwell Davis in the CHINLE emergency room of the positive results on November 

16, 2013, at 05:10 a.m.

31. On November 18, 2013, at 10:29 a.m., 12 weeks, 4 days post dental 

procedure, Timmy was brought into the CHINLE emergency room after his family was 

called just that morning regarding the positive blood culture results. He presented with 

fever, chills, extreme weakness and required assistance to walk. During this visit, Dr. 

Ritchie diagnosed Timmy with bacteremia (the presence of bacteria in the blood) and 

was concerned for subacute bacterial endocarditis with 4/4 positive blood cultures in his 

patient with known rheumatic heart disease and no other source of infection apparent 

upon examination. Timmy was transferred to the Flagstaff Medical Center.

32. Timmy was admitted to the Flagstaff Medical Center on November 18, 

2013, and discharged on December 19, 2013, to Select Specialty Hospital in Phoenix, a 

long time acute care facility.

33. At discharge from the Flagstaff Medical Center, Timmy was diagnosed

with and/or had experienced, at minimum, the following:

a. Streptococcal anginosus aortic valvular endocarditis, most likely 

secondary to recent dental work.

b. Decreased level of consciousness with roving gaze and left 

hemiparesis secondary to documented multifocal embolic CVAs 

secondary to embolization of the moderately large mobile aortic

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valvule vegetation. This is complicated by mild hemorrhagic 

conversion.

c. Chronic and persistent severe aortic insufficiency with low diastolic 

blood pressures.

d. Upper GI bleed.

34. On December 19, 2013, Timmy was admitted to Select Specialty Hospital. 

When it was realized that Timmy's condition was terminal, mechanical ventilation was 

removed on January 7, 2014. 

35. On January 8, 2014, Timmy died. The causes of death were:

a. Respiratory failure.

b. Multifocal strokes.

c. Multiple septic emboli.

d. Infective endocarditis - streptococcus anginosus secondary to 

unknown dental procedure.

CAUSE OF ACTION - DUTY, NEGLIGENCE, AND CAUSATION

36. Plaintiff repeats the averments stated in the preceding paragraphs and 

incorporates them by reference as part of the first count of negligence.

37. The United States is legally responsible for the negligent actions of its 

CHINLE staff, including employees of CHINLE, while those employees are performing 

job duties for the employer or engaged in furtherance of the interests of the employer.

38. The involved staff who participated in the medical care of decedent at 

CHINLE were employees of the Indian Health Service at all pertinent times of Timmy 

Teller's health care.

39. Those employees were on the job performing job-related duties for 

CHINLE at the time they acted negligently.

40. If any negligent CHINLE staff were not actual employees of the Indian 

Health Service at the time of the incident, they may have been contract employees 

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whose contracts with the defendant provide that the defendant is liable under the 

Federal Tort Claims Act for their negligence.

41. If any negligent CHINLE staff were not actual employees of the Indian 

Health Service at the time of the incident, they may have been contract employees 

whose contracts with the defendant may be deemed by statute or federal regulation to 

make the defendant liable under the Federal Tort Claims Act for their negligence.

42. If any negligent CHINLE staff were not actual employees of the Indian 

Health Service at the time of the incident, and the preceding paragraphs 40-41 do not 

apply, they may have been contract employees for whom the defendant is vicariously 

liable under the Federal Tort Claims Act pursuant to doctrines of law such as agency and 

respondeat superior.

43. Defendant had a duty to exercise reasonable care in the diagnosis and 

treatment of Timmy Teller, and to possess and use the degree of skill and learning 

ordinarily used in the same or similar circumstances by members of their professions in 

the provision of healthcare.

44. The involved staff breached the duty of reasonable care that was owed to 

Timmy Teller and are guilty of the following negligent actions and omissions by failing 

to measure up to the applicable standards of care, skill, and practice required of 

members of their profession, to wit:

a. failure to provide differential diagnoses during multiple visits;

b. failure to draw blood cultures on 5 separate visits;

c. failure to re-draw blood samples post-hemolysis for accurate and effective 

testing;

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d. failure to realize that the administration of antibiotics would destroy 

results from a culture draw if, in fact, cultures were drawn;

e. failure to timely order urinalysis testing to check for the presence of red 

blood cells in decedent's urine

f. failure to appreciate the reason for the presence of red blood cells in 

decedent's urine when urinalysis was finally ordered;

g. failure to perform adequate assessments to include, but not be limited to, 

heart and cardiac examination;

h. failure to recognize that "anchoring errors" occurred in diagnosis during 

multiple visits;

i. failure to detect a heart murmur and list as a differential diagnosis given 

the decedent's long medical history of rheumatic valvular heart disease with murmur;

j. failure to recognize the significance of an increase in decedent's 

inflammatory markers;

k. failure to recognize the significance of continuing abnormal lab values as

indicators of a still undiagnosed disease process;

l. failure to apply EGDT ("Early Goal Directed Therapy") criteria and 

protocol;

m. failure to interpret abnormal vital signs correctly and their significance;

n. failure to timely inform the decedent and/or his family regarding the 

positive culture results;

o. failure to incorporate decedent's preexisting condition of rheumatic 

valvular heart disease and accompanying murmur necessitated more substantial work 

ups and thorough physical examinations;

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p. failure to properly document;

q. failure to properly and adequately review decedent's medical records to 

determine the genesis of decedent's infectious disease process;

r. failure to recognize that decedent's dental procedure of August 22, 2013, 

was the genesis of decedent's infectious disease process and not related only to "...2 

weeks smoldering fever/chills after a dental extraction..." documented on November 18, 

2013, by Eric Ritchie, M.D.;

s. failure to identify decedent as a high risk patient for infective endocarditis; 

and,

t. negligently and carelessly failing to measure up to the requisite standards 

of care and skill recognized and observed in the field of medicine, and related fields, 

while performing care or engaged in caring for decedent, and in further particulars that 

at this time are not known to plaintiff as to the specific facts, but which are believed and 

hereby alleged will be disclosed during discovery in the course of the litigation.

45. The negligent actions and omissions of the CHINLE staff for their failure 

to diagnose and treat decedent between October 4, 2013, through November 18, 2013, 

caused injury to, and decedent's subsequent death, were actions and omissions for 

which the United States would be liable to plaintiff for negligence under the laws of the 

State of Arizona, the place where the incident occurred, if the United States were a 

private individual at fault for the same negligence.

46. At all times material hereto, decedent was a patient of the Indian Health 

Service, an agency of the United States Department of Health & Human Services, and 

was in the care and custody of CHINLE and involved staff, completely dependent upon 

the government, the hospital, and the hospital staff for his medical care.

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47. Defendant United States, acting through its employees, negligently failed 

to provide appropriate, reasonable, and required medical care to decedent which gives 

rise to a negligence cause of action against defendant, as laid out herein.

48. As a direct and approximate result of the negligence of defendant United 

States and its employees, and the staff at CHINLE, decedent died.

DAMAGES

49. Under the FTCA and the law of the place of the wrong, the State of 

Arizona, plaintiffs are entitled to compensatory damages for their losses, both special 

and general, including damages for the nature and duration of decedent's pain and 

suffering, funeral and burial expenses, loss of the value of life, decedent's past medical 

expenses, non-medical expenses incurred by plaintiff, loss of value of household 

services, loss of companionship, love and affection, and other losses of consortium. 

Defendant United States is liable to plaintiff for her losses and hereby claims a right to 

recover all allowable damages recognized by Arizona, whether specifically mentioned 

herein or not.

CONCLUSION

WHEREFORE, plaintiffs pray for the court to enter judgment for them, 

individually, and on behalf of the Estate of Timmy Teller, and to order that they be 

compensated for all losses allowed or recognized by law, for an award of allowable costs, 

and for such other relief as recognized under the laws and rules that govern this case.

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Respectfully submitted

BARBER & BORG, LLC

P.O. Box 30745

Albuquerque, New Mexico 87190-0745

(505) 884-0004

(505) 884-0077

scott@barberborg.com

By:________/s/ Scott E. Borg______

Attorneys for the Plaintiff

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