Case: 3:17-cv wmc Document #: 1 Filed: 11/01/17 Page 1 of 12 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

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1 Case: 3:17-cv wmc Document #: 1 Filed: 11/01/17 Page 1 of 12 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN CONSUELA SMITH-WILLIAMS, FRED RIVERS, RICHARD MURPHY, ROBERT RISTOW, ROGER SUHR, and SALVADOR FUENTES, individually, and on behalf of all similarly situated, Plaintiffs, Case No.: 17-CV-823 v. THE UNITED STATES OF AMERICA, Defendant. / CLASS ACTION COMPLAINT COME NOW the Plaintiffs, CONSUELA SMITH-WILLIAMS, FRED RIVERS, RICHARD MURPHY, ROBERT RISTOW, ROGER SUHR and SALVADOR FUENTES, by and through undersigned counsel, and bring this action in their individual capacity and on behalf of a similarly situated class of individuals ( Class Members ) defined below, against the Defendant, UNITED STATES OF AMERICA ( USA ), and for their Complaint specifically allege: THE PARTIES, JURISDICTION, AND VENUE 1. At all times material, the Plaintiffs are, and were, veterans of the armed forces of the United States of America who reside in or are otherwise sui juris in the Western District of Wisconsin. 2. At all times material, the Defendant, USA was charged with providing for the health and welfare of veterans of its armed forces, through the Veterans Health Administration of the

2 Case: 3:17-cv wmc Document #: 1 Filed: 11/01/17 Page 2 of 12 Department of Veterans Affairs, which operates the Tomah VA Medical Center in Tomah, Wisconsin. 3. This is an action brought pursuant to 28 U.S.C (b) (Federal Tort Claims Act). 4. This Court has exclusive jurisdiction pursuant to 28 U.S.C Venue is proper in the United States District Court for the Western District of Wisconsin pursuant to 28 U.S.C. 1402(b) as the events giving rise to this action took place in Monroe County, Wisconsin. 6. Plaintiffs have exhausted their administrative remedies pursuant to 28 U.S.C (a), and the Defendant has failed to make a final disposition of their claims within six months. See Exhibits A and B. 7. All conditions precedent to the filing this action have occurred, have been waived, or have otherwise been satisfied. FACTUAL ALLEGATIONS 8. Between October 5, 2015 and October 21, 2016, the Defendant s agent, servant and employee, Dr. Tomas Schiller, treated the Plaintiffs and Class Members at the dental clinic in the Tomah VA Medical Center while in the scope of his employment relationship with the Defendant, USA. 9. While treating the Plaintiffs and Class Members, Dr. Schiller: (i) used unsterile dental burs 1 ; (ii) re-used dental burs meant for single use on multiple patients; (iii) sprayed the unsterile dental burs with a disinfectant commonly used to clean floors between procedures; (iv) failed to observe basic infection control practices, such as hand washing; (v) failed to wear personal 1 A device that is held and powered by a hand-held dental motor. The bur rotates at high speed to cut or abrade tooth structure, bone, restorative materials, and other dental material. Venes, D., & Taber, C.W. (2001). Taber s cyclopedic medical dictionary. Ed. 19, Philadelphia: F.A. Davis. 2

3 Case: 3:17-cv wmc Document #: 1 Filed: 11/01/17 Page 3 of 12 protective equipment during dental procedures, and; (vi) was occasionally observed by the dental clinic staff to be asleep at his desk during regular work hours. 10. For over a year, Dr. Schiller breached the infection control and prevention standards established by the American Dental Association, the Occupational Safety and Health Administration, the Center for Disease Control and Prevention, and the Department of Veteran s Affairs. 11. As early as December 2015, the dental assistant assigned to Dr. Schiller became aware that Dr. Schiller was using and re-using unsterile dental burs during the Plaintiffs and Class Members procedures. 12. The dental assistant reported this to the lead dental hygienist, however, the lead dental hygienist simply told the dental assistant that she was not in her supervisory chain and that the dental assistant needed to tell the chief of dental services. 13. The dental assistant previously informed the chief of dental services about Dr. Schiller s poor hygiene, his failure to use personal protective equipment, and that he occasionally appeared to be sleeping at his desk, however, no action was taken. 14. Due to her fear of retaliation, and the lack of action taken by her supervisors after her prior reports regarding Dr. Schiller, the dental assistant chose not to tell the chief of dental services about Dr. Schiller s use and re-use of unsterile dental burs. 15. Other Tomah VA Medical Center employees working in the dental clinic were also aware that Dr. Schiller was breaching infection control and prevention standards, however, on May 16, 2016, Tomah VA Medical Center managers signed Dr. Schiller s professional evaluation form, citing: no concerns regarding competency. 3

4 Case: 3:17-cv wmc Document #: 1 Filed: 11/01/17 Page 4 of In or around mid-october 2016, a substitute dental hygienist witnessed Dr. Schiller using an unsterile dental bur while treating a patient. 17. On October 20, 2016, while Dr. Schiller was out of the dental clinic, the substitute dental hygienist reported what she had witnessed to the acting chief of dental services who later reported the incident to Tomah VA Medical Center managers. 18. When confronted by Tomah VA Medical Center managers, Dr. Schiller freely admitted to using and re-using unsterile dental burs, and informed them that he believed it was a common practice. 19. The Defendant completed a risk assessment and recognized that the Plaintiffs and Class Members were at risk of having been infected with deadly viruses such as Hepatitis B, Hepatitis C, and HIV. 20. On or about November 29, 2016, the Tomah VA Medical Center sent a notification letter to the Plaintiffs and Class Members (attached hereto as Exhibit C) which stated in pertinent part: Our records indicate that between October 2015 and October 21, 2016 you were seen as a patient in the Tomah VA Medical Center s Dental Clinic for a dental procedure. This letter is to inform you that established infection control practices were not being followed by the dentist that treated you. While we believe the risk of infection is low, we recommend you come in to be tested.the laboratory test we are recommending you be tested for include the Hepatitis B virus, Hepatitis C virus, and the Human Immunodeficiency Virus (HIV). 21. The Plaintiffs and Class Members then scheduled and underwent blood testing to determine whether they had been infected with Hepatitis B, Hepatitis C, and/or HIV, and waited for their results for approximately two weeks. 4

5 Case: 3:17-cv wmc Document #: 1 Filed: 11/01/17 Page 5 of Thereafter, Plaintiffs and Class Members received blood test results indicating that they had not been infected with any of the enumerated viruses. 23. The Plaintiffs and Class Members who received dental care during the six months preceding the mailing of the notification letter were forced to wait an additional six months for further blood testing due to the time it takes for these viruses to become detectible after exposure. 24. The Plaintiffs and Class members who were forced to wait six months for further blood testing also tested negative for the enumerated viruses. 25. From the time the Plaintiffs and Class Members received the notification letter until they received their blood test results indicating that they had not been infected with a deadly virus, they suffered severe emotional distress. 26. During that time, the Plaintiffs and Class Members were forced to consider that they may have been infected with deadly viruses, may die as a result of having been infected, and/or may have unknowingly infected their loved ones with deadly viruses. CLASS REPRESENTATION ALLEGATIONS 27. Plaintiffs bring this action pursuant to Federal Rule of Civil Procedure 23 on behalf of themselves and a similarly situated class of individuals defined as: All Tomah VA Medical Center patients who received dental care between October 2015 and October 2016, received a letter from the Tomah VA Medical Center informing them of their potential exposure to Hepatitis B, Hepatitis C, and HIV and subsequently tested negative for newly acquired active viral infections. 5

6 Case: 3:17-cv wmc Document #: 1 Filed: 11/01/17 Page 6 of There is a sub-class of Tomah VA Medical Center patients who received dental care during the six months preceding the mailing of the notification letter. These patients were forced to wait an additional six months for further blood testing to confirm that they were not infected with Hepatitis B, Hepatitis C, and HIV. This subclass is defined as: All Tomah VA Medical Center patients who received dental care between October 2015 and October 2016, received a letter from the Tomah VA Medical Center informing them of their potential exposure to Hepatitis B, Hepatitis C, and HIV, subsequently tested negative for newly acquired active viral infections, and were forced to wait an additional six months for further blood testing to confirm that they were not infected with Hepatitis B, Hepatitis C, and HIV. 29. Excluded from the class are the Defendant s officers and directors and members of their immediate families. NUMEROSITY (Fed. R. Civ. P. 23(a)(1)) 30. The members of the class are so numerous that separate joinder of each Class Member is impractical. The class consists of 592 individuals. The Defendant has records indicating which of its patients were treated by Dr. Schiller in its dental clinic, and after reviewing its records, notified 592 patients that they may have been infected with Hepatitis B, Hepatitis C and HIV as a result of established infection control practices having not been followed. COMMONALITY (Fed. R. Civ. P. 23(a)(2)) 31. The Plaintiff s claims raise questions of law and/or fact common to each of the Class Members claims. Among these questions are: 6

7 Case: 3:17-cv wmc Document #: 1 Filed: 11/01/17 Page 7 of 12 a. Was the Defendant vicariously and/or directly negligent in relation to the treatment of its patients in the dental clinic at the Tomah VA Medical Center between October 2015 and October 2016? b. What is the reasonable value of the emotional damages suffered by patients between the time they received the notification letter and the time they received negative blood test results? TYPICALITY (Fed. R. Civ. P. 23(a)(3)) 32. The Plaintiffs claims are typical of each Class Members claim. Each Plaintiff and each Class Member received dental treatment from the same dentist, in the same hospital, and during the same time period, October 2015 and October ADEQUACY OF REPRESENTATION (Fed. R. Civ. P. 23(a)(4)) 33. The Plaintiffs will fairly and adequately protect and represent the interests of each member of the class. Plaintiffs have an interest in common with the class and are committed to the vigorous prosecution of this action. There is no hostility between Plaintiffs and the Class Members. The Plaintiffs retained competent counsel, experienced in litigation of this nature to represent them. The Plaintiffs have engaged The Downs Law Group, The Kishish Law Group and Doar, Drill & Skow, law firms with ample experience in class action and medical malpractice litigation and with the resources available to effectively represent the Plaintiffs and Class Members interests. COMMON ISSUES PREDOMINATE 34. Certification is appropriate under Fed R. Civ. P. 23(b)(3) because common questions of law or fact predominate over any question of law or fact affecting only individual Plaintiffs or 7

8 Case: 3:17-cv wmc Document #: 1 Filed: 11/01/17 Page 8 of 12 Class Members, and class representation is superior to other available methods for the fair and efficient adjudication of the controversy, additionally: a. There are no known individual Class Members who are interested in individually controlling the prosecution of separate actions; b. There exists no known pending litigation to which any Class Member is a party and in which any question of law or fact controverted in the subject action is to be adjudicated; c. There has never been a prior lawsuit certified as a class on behalf of the Plaintiffs or Class Members; d. It is desirable to concentrate the litigation in this forum and the interests of justice will be served by resolving the common disputes of potential Class Members in this forum; e. This action is manageable as a class action and no difficulties are likely to be encountered in the management of the claim; f. Individual suits would not be cost effective, especially in light of the fact that there are 592 class members, and it is highly unlikely that each individual veteran would bring an action on their own, as many do not have the resources to bring separate actions; g. The Plaintiffs and Class Members claims are based on the same alleged negligence by the Defendant, and common issues predominate over individual questions where, as here, liability can be determined on a class-wide basis, even where there are some individualized damages. 8

9 Case: 3:17-cv wmc Document #: 1 Filed: 11/01/17 Page 9 of 12 COUNT I Negligent Infliction of Emotional Distress The Plaintiffs re-allege and re-aver paragraphs one (1) through thirty-four (34) as though fully set forth herein. 35. The Defendant, USA, by and through its agents, servants, and employees, owed the Plaintiffs and Class Members a duty to use the degree of skill, care and judgment which a reasonable healthcare provider would use while treating patients at its Tomah VA Medical Center. 36. The Defendant, USA, by and through its agents, servants and employees, breached the duty it owed to the Plaintiffs and Class Members, by failing to use the degree of skill, care and judgment which a reasonable healthcare provider would use under the circumstances, including: a. using unsterile dental equipment while treating patients; b. re-using dental equipment which was meant for single use on multiple patients; c. failing to observe basic infection control and prevention practices, such as hand washing and wearing personal protective equipment; d. failing to follow the infection control and prevention standards established by the American Dental Association, the Occupational Safety and Health Administration, the Center for Disease Control and Prevention, and the Department of Veteran s Affairs. 37. As a direct and proximate result of the aforementioned negligent acts and omissions of the Defendant, USA s agents, servants and employees, the Plaintiffs and Class Members suffered severe emotional distress as they were forced to consider that they may have been infected with deadly viruses, may die as a result of having been infected and/or may have unknowingly infected their loved ones with deadly viruses. 9

10 Case: 3:17-cv wmc Document #: 1 Filed: 11/01/17 Page 10 of 12 COUNT II Negligent Training, Supervision and Retention The Plaintiffs re-allege and re-aver paragraphs one (1) through thirty-four (34) as though fully set forth herein. 38. The Defendant, USA, owed the Plaintiffs and Class Members a duty to use the degree of skill, care and judgment required of a hospital under similar circumstances in the training, supervision and retention of its agents, servants and employees. 39. The Defendant, USA, breached the duty it owed to the Plaintiffs and Class Members, by failing to use the degree of skill, care and judgment required of a hospital under similar circumstances while training, supervising and retaining its agents, servants and employees and by: a. failing to adequately train Dr. Schiller regarding the proper use of dental equipment; b. failing to adequately train Dr. Schiller regarding established infection control and prevention standards; c. failing to adequately supervise Dr. Schiller for over a year; d. failing to dismiss Dr. Schiller when the Defendant knew, or should have known, that he was breaching established infection control and prevention standards; e. failing to adequately train the staff in the dental clinic to report breaches of the standard of care and/or breaches of infection control and prevention standards; f. failing to adequately supervise the staff in the dental clinic to ensure that they reported breaches of the standard of care and/or breaches of infection control and prevention standards. 40. As a proximate result of the Defendant s aforementioned failures, Dr. Schiller was able to breach infection control and prevention standards for over a year, exposing the 592 Plaintiffs and 10

11 Case: 3:17-cv wmc Document #: 1 Filed: 11/01/17 Page 11 of 12 Class Members to the risk of infection from deadly viruses such as Hepatitis B, Hepatitis C, and HIV. 41. As a proximate result of being exposed to the risk of infection from deadly viruses, such as Hepatitis B, Hepatitis C, and HIV, the Plaintiffs and Class Members suffered severe emotional distress as they were forced to consider that they may have been infected with deadly viruses, may die as a result of having been infected and/or may have unknowingly infected their loved ones with deadly viruses. RELIEF REQUESTED WHEREFORE, the Plaintiffs, CONSUELA SMITH-WILLIAMS, FRED RIVERS, RICHARD MURPHY, ROBERT RISTOW, ROGER SUHR, and SALVADOR FUENTES, respectfully requests that this Court: A. Declare that the Defendant, USA, by and through its agents, servants and employees, breached the standard of care while treating the Plaintiffs and Class Members, and that the Defendant, USA, breached the duties it owed to them by failing to properly train, supervise and retain its agents, servants and employees; B. Declare that the Plaintiffs and Class Members emotional distress was proximately caused by the afore mentioned negligent acts and omissions of the Defendant, USA, and its agents, servants and employees; C. Award the Plaintiffs and Class Members, damages for the emotional distress suffered as a result of the negligent acts and omissions of the Defendant, USA, and; D. Award the Plaintiffs and Class Members such further relief as is appropriate in the interests of justice. 11

12 Case: 3:17-cv wmc Document #: 1 Filed: 11/01/17 Page 12 of 12 Respectfully Submitted, Matthew A. Biegert., Esq. Doar, Drill & Skow 103 North Knowles Avenue P.O. Box 388 New Richmond, WI Telephone No.: (715) Facsimile No.: (715) mbiegert@doardrill.com WI Bar No Co-Counsel for the Plaintiffs C.J. Kishish, Esq. Kishish Law Group 1555 Southcross Drive West Burnsville, Minnesota Telephone No.: (888) ckishish@kishishlawgroup.com MN Bar No Co-Counsel for the Plaintiffs William T. Rieder, Jr., Esq. The Downs Law Group 3250 Mary Street, Suite 307 Coconut Grove, FL Telephone No.: (305) Facsimile No.: (305) wrieder@downslawgroup.com FL Bar No Co-Counsel for the Plaintiffs By: s/ William Rieder William Rieder, Esq. 12