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Gayer v. United States

United States District Court, W.D. Kentucky, Louisville Division

May 13, 2019

KAREN GAYER, As Administratrix of the Estate of Cody Baker, deceased PLAINTIFF


          Greg N. Stivers, Chief United States District Judge.

         This matter is before the Court on Defendant's Motion for Summary Judgment (DN 41). The motion is ripe for adjudication. For the reasons outlined below, the motion is GRANTED.


         This case involves the death by suicide of Iraq War veteran Cody Baker (“Baker”). (Compl. ¶¶ 1-2, DN 1). Karen Gayer (“Plaintiff”) is the Administratrix of Baker's estate and brought this action pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346. Plaintiff alleges negligent treatment on the part of the Veterans Administration (“VA”) led to Baker's suffering which was the direct and proximate cause of his suicide. (Compl. ¶¶ 19-29).

         Baker served in Iraq from 2006 through 2008. (Compl. ¶ 2). While on active duty, he experienced numerous traumatic events, including an encounter with an improvised explosive device when Baker's vehicle received a direct hit. (Pl.'s Resp. Def.'s Mot. Summ. J. Ex. 2, DN 46-2 [hereinafter Krause Memo]). Gayer, who is Baker's mother, testified that during his service Baker was tasked with picking up and bagging the body parts of four deceased comrades and was involved in an incident where a child was killed. (Gayer Dep. 34:7-15, June 13, 2017, DN 46-1).

         In December 2008, Baker first sought treatment from the VA. (VA Medical Records 2, DN 41-4; Van Natta Dep. 65:14-19, June 21, 2017, DN 46-3). Baker received screening to determine his risk for suicide, depression, and post-traumatic stress disorder (“PTSD”), which were all negative. (VA Medical Records 55-58; Grantz Dep. 70-73, Feb. 22, 2018, DN 41-2). Over the following two years, Baker returned to the VA for treatment of various physical ailments. (VA Medical Records 2). On June 18, 2010, Baker again screened negative for PTSD, depression, and suicide, giving negative responses to all questions except one where Baker expressed he had suffered from nightmares. (VA Medical Records 39-41). Baker did not test positive on any screening despite the fact that PTSD, depression, alcohol use, and similar tests are designed to be generalized and to err on the side of caution. In other words, if a patient is borderline, the evaluations will reflect a positive finding. (Van Natta Dep. 26:4-8). Consistent with these test results, neither Baker's wife nor mother believed that he was at risk of suicide. (Gayer Dep. 27:12-17, 76:1-3; Farmer Dep. 14:12-25, June 27, 2017, DN 41-6).

         Baker made his final visit to the VA for treatment with his primary care physician, Dr. Mark Demuth (“Dr. Demuth”), on April 6, 2011. (Demuth Dep. 14:19-24, 31:4-6, June 21, 2017, DN 46-4; VA Medical Records 2). At this visit, Baker first expressed concerns for his mental health, stating that he felt like he was suffering from anxiety and requesting a screening for PTSD. (Demuth Dep. 30:23-25, 72:9-14). Dr. Demuth referred Baker for a “warm handoff”[1] to Donald Van Natta (“Van Natta”), a licensed clinical social worker in mental health. (Demuth Dep. 70:23- 71-2). At this point, Dr. Demuth was not concerned about suicide, noting that Baker had denied thoughts of suicide and was in a good mood that day. (Demuth Dep. 71:3-11).

         Following the handoff, Baker spent an hour with Van Natta. (Van Natta Dep. 69:10-13). Baker told Van Natta he did not want anyone to be involved in his treatment at the time of the in-person assessment. (Van Natta Dep. 70:3-9). Van Natta withheld creating a formal treatment plan until he received results of a follow-up assessment known as a behavioral health lab (“BHL”) core assessment. (Van Natta Dep. 64:12-17; Grantz Dep. 77:3-10). Herman Kaiser (“Kaiser”), a behavioral health technician, conducted the BHL core assessment. (Kaiser Dep. 15:2-14, June 21, 2017, DN 46-9). Again, Baker answered in the negative to all questions concerning suicidal ideation. (VA Medical Records 29-30). Additionally, the assessment contained a PTSD checklist with 17 symptoms. (VA Medical Records 28). Of these, Baker reported he was bothered “not at all” to the symptoms, except as follows:

1. Disturbing memories: A little bit
2. Disturbing Dreams: A little bit
4. Being upset: A little bit
5. Having physical symptoms: A little bit
6. Avoiding thoughts: Extremely
7. Avoiding activities: Extremely
11. Feeling numb: A little bit
13. Trouble sleeping: A little bit
14. Irritable: Quite a bit
16. Feeling Nervous: A little bit
17. Easily Startled: A little bit

(VA Medical Records 28).

         After Baker concluded the in-person assessment and BHL core assessment, Van Natta followed up with a phone call on April 20, 2011, to discuss the results and potential treatment options. Baker did not answer, however, so Van Natta left a message with his contact information. (Van Natta Dep. 71:19-24). Baker returned the call, but seemed irritable and stated he was not interested in receiving services. (Van Natta Dep. 72:7-14). Van Natta testified that in these situations, it is his custom to ask the veteran refusing treatment if he could call back next week. (Van Natta Dep. 84:21-85:2). Van Natta cannot say for certain that he asked Baker that question, but he does recall that Baker's refusal of services was “a flat no.” (Van Natta Dep. 85:3-4).

         Following the phone conversation with Van Natta, Baker only returned to the VA when he needed care for conditions not related to mental health, including a visit for a hand injury in June 2011 and several other scheduled appointments that Baker missed. (See, e.g., VA Medical Records 2, 4-6, 16-23). The last medical record mentioning Baker's mental health occurred when Baker received treatment for an ankle injury in September 2011. At that time, Baker denied wanting to harm himself or others. (VA Medical Records 11-12). Finally, the clinic cancelled a physical examination Baker had scheduled for November 9, 2011. (VA Medical Records 2).

         On January 20, 2012, nine months after refusing to discuss PTSD treatment with Van Natta, Baker came to the VA for a compensation and pension (“C&P”) examination with Dr. Brian Gallagher, Ph.D. (“Dr. Gallagher”). The examination related to a benefits application Baker filed seeking disability compensation for PTSD. (Gallagher Dep. 72:1-6, Apr. 21, 2017, DN 46-3). C&P examiners conduct forensic evaluations for purposes of disability determination but strive not to “blur the lines between treatment and disability” and as a result neither typically offer treatment nor form treating relationships with veterans. (Marsano Dep. 19:1-8, 91:2-5, Jan. 29, 2018, DN 46-15; Gallagher Dep. 23:19-20). The reasoning for this is that C&P personnel do not want to risk interfering with a veteran's relationship with his treating sources. (Gallagher Dep. 23:9-13). Examiners will, however, offer treatment if the veteran is not yet enrolled in any services with the VA, or if the veteran is in crisis and restrictive intervention is necessary. (Gallagher Dep. 23:21-24:5). Baker was already receiving treatment from the VA, so the first exception to the general rule did not apply. (Gallagher Dep. 24:6-10). As for the second exception, Baker appeared neatly groomed, spoke well, and was cooperative, relaxed and attentive, so that he did not appear to be in crisis. (VA Medical Records 10). Dr. Gallagher did note, however, that Baker seemed a little down, perhaps as though he were not in a good mood or was not happy about performing the evaluation. (VA Medical Records 10; Gallagher Dep. 103:1-13).

         Dr. Gallagher indicated that Baker had been exhibiting symptoms including difficulty sleeping, loss of interest in activities, hypervigilance, exaggerated startle response, avoidance of social gatherings, job stress, and stress related to the trauma Baker suffered in Iraq. (VA Medical Records 10-11). Dr. Gallagher ultimately concluded that Baker's symptoms created mild or transient occupational or social impairment, and these symptoms were consistent with mild PTSD. (VA Medical Records 11). Five days after his C&P evaluation with Dr. Gallagher, Baker returned for a C&P evaluation for his eye on January 25, 2012. (VA Medical Records 2, 7-9). Baker never returned to the VA for any reason after this visit. (See VA Medical Records 2).

         Baker did seek treatment from other sources. In March 2012, Baker visited Marinetta Van Lahr (“Van Lahr”), APRN, whom his wife had seen for medical care for as long as she could remember. (Farmer Dep. 102:2-16). Baker went to see Van Lahr after his wife confronted him about his worsening drinking problem and anxiety. (Farmer Dep. 102:15). Records from his initial visit, however, fail to reveal any significant psychiatric disturbance. (Chambliss Medical Records 6, DN 41-11; Van Lahr Dep. 39:4-40:3, Nov. 16, 2017, DN 41-17).[2]

         The first reference to psychiatric issues in Baker's treatment with Van Lahr appears in a note from a visit on November 6, 2012. (Chambliss Medical Records 6). Baker was concerned about PTSD and reported increasing anxiety, experiencing temper control issues, and waking up with flight of thought. (Chambliss Medical Records 6). Van Lahr could not recall whether it was months or years that Baker's ...

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