Milbauer v. United States of America
Filing
64
ORDER granting 42 Defendant United States of America's Motion to Dismiss. This case is DISMISSED without prejudice for lack of subject matter jurisdiction. The Clerk of Court shall enter judgment accordingly, terminate any previously scheduled deadlines and pending motions, and CLOSE the file.Signed by Judge Sheri Polster Chappell on 7/22/2013. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RICHARD S. MILBAUER,
Plaintiff,
v.
Case No: 2:11-cv-149-FtM-38DNF
UNITED STATES OF AMERICA,
Defendant.
/
ORDER 1
This matter comes before the Court on Defendant United States of America's
Motion to Dismiss (Doc. #42) filed on October 31, 2012.
Plaintiff pro se filed his
Response to Defendant’s Motion to Dismiss (Doc. #49) on November 30, 2012.
Defendant filed its Reply to Plaintiff’s Response to its Motion to Dismiss (Doc. #57) on
January 8, 2013. This Court previously issued an Order directing Defendant to file the
decision of the administrative hearing officer (Doc. #59) on April 9, 2013. Defendant
filed its Response to the Order, (Doc. #60), including the decision of the administrative
hearing officer (Doc. #60, Ex. A-D) on April 23, 2013. Accordingly, the Motion is now
ripe for review.
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PROCEDURAL BACKGROUND
This case was originally filed by Plaintiff Richard Milbauer on March 17, 2011,
against Defendant United States of America. (Doc. #1). Defendant filed its Answer and
Affirmative Defenses on May 31, 2011.
(Doc. #12).
On June 2, 2011, Defendant
moved the Court to transfer this action from the Middle District of Florida to the Eastern
District of New York. (Doc. #14). The Motion was denied on December 8, 2011. (Doc.
#18). Defendant filed a Motion for Reconsideration, (Doc. #23), which the Court denied
on April 13, 2012. (Doc. #28). On July 16, 2012, and November 2, 2012, Plaintiff’s
attorneys withdrew from the case and Plaintiff is now proceeding pro se. (Doc. #37,
43).
FACTUAL BACKGROUND
As alleged in the Complaint, Plaintiff is a veteran of the United States Armed
Forces and entitled to care at Defendant’s Veteran Affairs (“VA”) Medical Centers. On
September 13, 2005, Plaintiff injured his right shoulder while at work on a construction
site. He presented to the Brooklyn VA Medical Center (“Brooklyn VAMC”) emergency
room, complaining of pain. Plaintiff was given pain killers and a sling and told to return
the following day to the VA’s Orthopedic Clinic (“the Clinic”). At the Clinic, he again
received ice, pain killers, and a sling. Plaintiff then returned to work in the construction
industry.
On September 20, 2005, Plaintiff returned to the Clinic for a follow-up visit and
was examined by Dr. John Sharkey, who recommended an MRI. Plaintiff explained that
he needed an open MRI due to claustrophobia. As the Brooklyn VAMC did not have the
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capability to perform an open MRI, Plaintiff was told that someone would contact him
regarding the procedure to set up an open MRI at a facility outside of the Brooklyn
VAMC.
On September 28, 2005, Plaintiff returned to the Brooklyn VAMC emergency
room after sustaining a new injury to his head, right shoulder, and arm. He was given
pain medication and a sling and told to return to the Clinic on October 4. When Plaintiff
returned, Dr. Andrew Steiner informed him that he would need an MRI. Plaintiff was
told that he would personally need to obtain and fill out forms and obtain a price from an
outside MRI vendor, then return the forms to the Clinic. Dr. Steiner informed Plaintiff
that someone from radiology would contact him regarding the process.
Plaintiff was not contacted, so on November 15, 2005, he returned to the Clinic.
Dr. Sharkey recommended that Plaintiff contact social services about obtaining an
outside MRI form. At social services, Plaintiff was told that someone would call him, but
no one from that office ever contacted Plaintiff.
On February 21, 2006, Plaintiff presented to his primary care doctor, Asya
Perelstein, complaining of increasing pain in his right shoulder. On March 23, 2006,
Plaintiff returned to the Clinic and was seen by Dr. Steiner. On March 28, 2006, Plaintiff
again returned to the Clinic and was given the form for an outside MRI. Dr. Alexander
Cho signed the form and instructed Plaintiff to take it to the MRI vendor of his choice.
When Plaintiff presented the form to Stand-Up MRI of Staten Island, it was rejected
because it should have been sent directly from the VA Fee Basics Unit.
attempted to contact the VA Fee Basics Unit, but received no response.
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Plaintiff
On June 13, 2006, Plaintiff returned to the Clinic with the original form. Dr.
Sharkey and Dr. Greg Khounganian completed an additional memorandum and
instructed Plaintiff to bring the forms to surgical services. At surgical services, Plaintiff
was told that he would be contacted by the Fee Basics Unit within a week or two, and
he was given a copy of VA New York Harbor Healthcare System Policy #11-41. Plaintiff
did not receive a response from the Fee Basics Unit, and on July 17, 2006, he filed a
formal complaint with the Department of Veterans Affairs. He received a response on
July 26, 2006, and on July 31, 2006, he received an open MRI at Stand-Up MRI of
Staten Island. The results were reviewed on August 8, 2006, revealing a massive
rotator cuff tear with retraction. Plaintiff underwent surgery on March 21, 2007, and it
was found that the tear was irreparable.
On September 27, 2008, Plaintiff filed an administrative claim with the United
States Department of Veterans Affairs. On August 26, 2009, the VA Regional Counsel
denied Plaintiff’s claim.
On September 30, 2009, Plaintiff filed a request for
reconsideration with the VA’s Office of General Counsel. Plaintiff amended his claim on
February 8, 2010, increasing the amount of monetary damages to $2.5 million. On
March 7, 2011, Plaintiff’s claim was again denied.
On March 17, 2011, Plaintiff filed the instant Complaint against Defendant
pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et. seq., asserting a single
claim of negligence.
Defendant filed the instant Motion to Dismiss for lack of
jurisdiction, arguing that the Complaint actually alleges a veterans’ benefits issue, and
therefore falls outside the jurisdiction of this Court.
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DISCUSSION
In its Motion to Dismiss, Defendant raises a Fed. R. Civ. P. 12(b)(1) challenge to
the subject matter jurisdiction of the Court. (Doc. #42). Subject matter jurisdiction
relates to the Court’s power to adjudicate a case. Morrison v. Nat’l Austl. Bank Ltd., --U.S. ---, 130 S. Ct. 2869, 2877, 177 L. Ed. 2d 535 (2010); Reed Elsevier, Inc. v.
Muchnick, --- U.S. ---, 130 S. Ct. 1237, 1243, 176 L. Ed. 2d 18 (2010). “[A] court must
first determine whether it has proper subject matter jurisdiction before addressing the
substantive issues.”
Taylor v. Appleton, 30 F.3d 1365, 1366 (11th Cir. 1994).
If
jurisdiction is found to be lacking, the Court cannot proceed at all; its sole remaining
duty is to state that it lacks jurisdiction and dismiss the case. Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 94, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998); see also
University of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999) (“[O]nce a
federal court determines that it is without subject matter jurisdiction, the court is
powerless to continue.”).
Rule 12(b)(1) motions challenging the subject matter jurisdiction of the court may
attack jurisdiction “facially” or “factually.”
McElmurray v. Consol. Gov’t of Augusta-
Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007). A facial attack challenges
subject matter jurisdiction based on the allegations in the complaint, and the court takes
the allegations in the complaint as true in deciding the motion. Id. Factual attacks
challenge subject matter jurisdiction in fact, irrespective of the pleadings. Id. As such,
in deciding a factual attack, the court may consider “matters outside the pleadings, such
as testimony and affidavits.”
Id.
In deciding a factual attack, “no presumptive
truthfulness attaches to plaintiff’s allegations, and the existence of disputed material
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facts will not preclude the trial court from evaluating for itself the merits of jurisdictional
claims.” Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). In this case,
Defendant raises a factual attack on the Court’s subject matter jurisdiction.
Defendant submits that the Court lacks subject matter jurisdiction because
Plaintiff’s claim is precluded by the Veterans Judicial Review Act (“VJRA”), 102 Stat.
4105 (codified, as amended, in various sections of 38 U.S.C. (2006 ed. and Supp. III)).
In response, Plaintiff maintains that his claim is not barred by the VJRA and that this
Court has original jurisdiction over his claim pursuant to the Federal Tort Claims Act
(“FTCA”) and 28 U.S.C. § 1346(b).
In determining the court’s jurisdiction over a claim, “[i]t is the substance of the
claim and not the language used in stating it which controls.” Reed v. U.S. Postal Serv.,
288 F. App’x 638, 640 (11th Cir. 2008). In this case, the Complaint alleges that:
[T]he agents and employees of the United States of America at the
Brooklyn VA Medical Center . . . deviated from appropriate standards of
medical care in providing medical care and treatment to [Plaintiff] in the
following respects:
a. Failing to take reasonable steps to diagnose his rotator cuff injury
within a reasonable time frame through an outside MRI;
b. Failing to have the appropriate paperwork prepared to authorize
the outside MRI for a period of ten months; and
c. Committing other negligent acts or omissions in violation of the
applicable standards of medical care.
(Doc. #1, ¶25). Plaintiff alleges that this failure to take action was the proximate cause
of his irreparable rotator cuff tear. (Id. at ¶26).
Plaintiff argues in his Response to Defendant’s Motion to Dismiss that
Defendant’s agents and employees at the Brooklyn VAMC deviated from the standard
of care in failing to offer Plaintiff any alternative diagnostic procedures when they
learned of Plaintiff’s difficulty in obtaining pre-authorization for an outside MRI. Plaintiff
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argues that this standard of care is derived from the New York Harbor Healthcare
System Mandatory Training Manual and the Healthcare System Policy No. 11-41 that
he was given at the Clinic.
Plaintiff first raised this argument in his Response to
Defendant’s Motion to Dismiss. However, if Plaintiff wishes to raise this argument under
the FTCA in federal district court, he must have first exhausted his administrative
remedies with respect to that claim. See 28 U.S.C. § 2675(a); see also Gibbs v. United
States, No. 12-13252, 2013 WL 1668244, at *3 (11th Cir. Apr. 17, 2013) (“If a party files
a lawsuit in a district court before filing an administrative claim and exhausting the
statutory administrative remedies, the suit is premature and the district court lacks
subject matter jurisdiction over the action.”).
The SF-95 that Plaintiff filed in his
administrative claim states the basis of his claim as:
Failure of the Brooklyn VA Hospital and medical staff to provide an outside
MRI of claimant’s right shoulder in a timely manner. The MRI was
recommended/ordered by the doctor’s [sic] of the Orthopedic Sports Clinic
on September 20, 2005. Due to the staff not knowing how to arrange an
outside MRI, the placing of the burden of paperwork on the claimant and
the claimant finally having to file a complaint, caused further damage to
claimant’s injury. . . . On 09/02/2008, during continued treatment at the
Orthopedic clinic, claimant was informed that had an MRI been performed
with-in a 30 day period from the injury, the rotator cuff tear would have
been fixable.
(Doc. #60, Ex. A § 8). As Defendant points out, Plaintiff mentioned nowhere in his
administrative claim that Defendant failed to provide alternative diagnostic procedures
or that Policy No. 11-41 provided the appropriate standard of care for Defendant. The
Court agrees.
Because Plaintiff did not exhaust his administrative remedies with
respect to this argument, the Court cannot properly consider it in deciding the instant
Motion to Dismiss. See Turner v. United States, 514 F.3d 1194, 1200 (11th Cir. 2008).
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Properly considered are the allegations in the Complaint concerning the delay in
receiving pre-authorization for an outside MRI.
To determine whether this Court has subject matter jurisdiction over Plaintiff’s
claim, it must evaluate whether the Complaint in essence alleges medical malpractice or
a veterans’ benefits claim. To state a claim for medical malpractice, the plaintiff must
allege “the standard of care owed by the defendant, the defendant’s breach of the
standard of care, and that the said breach proximately caused the damages claimed.”
Turner, 514 F.3d at 1203.
Veterans’ benefits claims are governed by the VJRA.
Generally, the VJRA made changes to the existing structure of administrative review of
veterans’ benefits decisions. Bates v. Nicholson, 398 F.3d 1355, 1363 (Fed. Cir. 2005).
The VJRA created the Court of Appeals for Veterans Claims, an Article I tribunal, and
authorized that court to review decisions of the Board of Veterans’ Appeals adverse to
veterans. Henderson ex rel. Henderson v. Shinseki, --- U.S. ---, 131 S. Ct. 1197, 1201,
179 L. Ed. 2d 159 (2011). Decisions of the Court of Appeals for Veterans Claims may
be reviewed in the United States Court of Appeals for the Federal Circuit, which
decisions may in turn, be reviewed by the Supreme Court of the United States. Id.; see
also 38 U.S.C. § 7292. The VJRA specifically precludes judicial review in Article III
courts of VA decisions affecting the provision of veterans’ benefits. See 38 U.S.C. §
511(a). The statute provides in relevant part:
The Secretary shall decide all questions of law and fact necessary to a
decision by the Secretary under a law that affects the provision of benefits
by the Secretary to veterans or the dependents or survivors of veterans.
Subject to subsection (b), the decision of the Secretary as to any such
question shall be final and conclusive and may not be reviewed by any
other official or by any other court, whether by an action in the nature of
mandamus or otherwise.
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Id. Thus, FTCA claims may not be brought in federal district court if they affect the VA’s
“provision of benefits.” Thomas v. Principi, 394 F.3d 970, 973-74 (D.C. Cir. 2005); see
also Jones v. United States, No. 4:12CV00124 ERW, 2012 WL 3095544, *5 (E.D. Mo.
July 30, 2012) (“federal district courts may not adjudicate claims that require the court to
determine whether the VA properly handled a veteran’s request for benefits”); Bell v.
United States, No. 1:12-cv-75-MHT-WC, 2012 WL 1599272, *2 (M.D. Ala. Apr. 13,
2012); Kumnick v. United States, No. 8:05-CV-01511-JDW-MAP, 2007 WL 4614771, *2
(M.D. Fla. Dec. 31, 2007); Williams v. United States, 932 F. Supp. 357, 362 (D.D.C.
1996). Courts have interpreted “provision of benefits” in the VJRA to include claims
relating to medical expense reimbursement for medical care provided to a veteran at a
non-VA facility.
Thomas, 394 F.3d at 974-75 (“Because adjudicating these
allegations—failure to ‘render appropriate medical services’ and ‘denial of . . . necessary
medical care treatment’—would require the district court ‘to determine first whether the
VA acted properly’ in providing [plaintiff] benefits, these claims are barred by section
511.”); Williams, 932 F. Supp. at 362 (citing Emch v. United States, 630 F.2d 523, 528
(7th Cir. 1980)) (holding claims for the VA’s responsibility to pay for plaintiff’s medical
care by an outside provider constitute claims for benefits determinations and precludes
jurisdiction in federal district court).
Plaintiff argues that his claim is not one for provision of benefits because he
alleges that his MRI was delayed, not that he was denied benefits. In provision of
veterans’ benefits cases, however, “[t]here is no meaningful legal difference between a
delay of benefits and an outright denial of benefits.” Mehrkens v. Blank, 556 F.3d 865,
870 (8th Cir. 2009). In Mehrkens, the plaintiff filed a claim under the FTCA for medical
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malpractice and negligence, alleging that VA physicians caused treatment of his PTSD
to be delayed.
Id. at 867.
The court in that case found that although Mehrkens
couched his claims in constitutional and tort law, he was essentially challenging a
decision affecting his benefits, so the district court’s jurisdiction was preempted by the
VJRA. Id. at 868. Similarly, in this case, Plaintiff’s allegations, though couched in the
language of tort law, essentially present a claim relating to veterans’ benefits. The
Complaint does not allege that the agents and employees of Defendant at the Brooklyn
VAMC deviated from the standard of care in providing medical treatment to Plaintiff;
rather, the crux of the Complaint lies in Plaintiff’s allegations that he did not receive the
outside MRI in a reasonable time because the process of obtaining pre-authorization for
the VA’s payment for the MRI was prolonged and deficient. His grievance is with the
VA’s benefits procedure, not with the medical treatment he received.
In fact, two
doctors recommended an MRI immediately after Plaintiff sustained his injuries. Plaintiff
could have received the recommended outside MRI at his own expense at any time.
Plaintiff’s claim is that it was the process of obtaining authorization for the VA to pay for
the MRI that caused the delay Plaintiff complains of, not medical malpractice.
Thus, despite Plaintiff’s contention that his claim sounds in tort law, he essentially
presents a claim for delay of veterans’ benefits. Consequently, the Court lacks subject
matter jurisdiction and must dismiss this case.
Accordingly, it is now
ORDERED:
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(1) Defendant United States of America's Motion to Dismiss (Doc. #42) is
GRANTED. This case is DISMISSED without prejudice for lack of subject
matter jurisdiction.
(2) The Clerk of Court shall enter judgment accordingly, terminate any previously
scheduled deadlines and pending motions, and CLOSE the file.
DONE and ORDERED in Fort Myers, Florida this 22nd day of July, 2013.
Copies: All Parties of Record
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