Spicer v. United States Department of Veterans Affairs

Filing 6

ORDER Overruling 5 Objection but Rejecting 3 Report and Recommendation and Remanding for Rescreening. Signed by Judge Jennifer A. Dorsey on 1/26/2018. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Case No.: 2:16-cv-03025-JAD-CWH

4 Brian Stanley Spicer,
Plaintiff

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Order Overruling Objection but Rejecting
Report and Recommendation and
Remanding for Rescreening

6 v.
7 United States Department of Veteran Affairs,

[ECF Nos. 3, 5]

Defendant

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Brian Stanley Spicer sues the United States Department of Veteran Affairs for medical

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11 malpractice, claiming that its medical care providers’ actions during his gynecomastia surgery
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12 fell below the standard of care required by Chapter 41A of the Nevada Revised Statutes.

13 Because Spicer moved for, and was granted, pauper status, his complaint was screened under 28
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14 U.S.C. § 1915(a). Magistrate Judge Hoffman recommends that I dismiss his complaint with

15 leave to amend because Spicer submitted his complaint without the medical-expert affidavit
16 required by NRS 41A.017. Spicer objects, arguing that he should not be required to provide an
17 affidavit because his allegations prove that his claim has merit and due process requires the court
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18 to permit his case to go forward. Although I am unpersuaded by Spicer’s arguments, in

19 reviewing the report and recommendation, I came across a recent Ninth Circuit decision that
20 suggests that the Circuit, were it to review this case, would not require Spicer to obtain an
21 affidavit. Accordingly, I reject the recommendation and remand this case back to the magistrate
22 judge for rescreening.
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ECF No. 4 at 13.

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ECF No. 3.

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ECF No. 5.

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DISCUSSION

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Spicer sues the United States Department of Veterans Affairs (VA)4 for medical

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3 malpractice under NRS Chapter 41A and the Federal Tort Claims Act (FTCA), 28 U.S.C. §§
4 1346(b) et seq. He claims that he was examined and diagnosed with gynecomastia by the VA
5 medical-care providers in August 2014 and underwent an unsuccessful surgery to correct it on
6 October 6, 2014. He alleges that the medical treatment and care he received fell below the
7 standard of care. He prays for more than $1 million.5
Because Spicer sought and was granted pauper status for this case, Magistrate Judge

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9 Hoffman screened his complaint under 28 U.S.C. § 1915(a).6 The magistrate judge properly
10 noted that medical-malpractice claims against federally funded health-care facilities and their
11 employees acting in the scope of that employment must be brought under the FTCA, as Spicer
12 brings this case. And, because Spicer also brings this action under Nevada’s medical malpractice
13 statute, NRS 41A.009 et seq., which requires all medical-malpractice actions to be “filed with
14 ‘an affidavit, supporting the allegations contained in the action,’”7 the magistrate judge
15 recommends that I dismiss Spicer’s complaint because it lacks that statutorily required affidavit.8
16 Indeed, NRS 41A.071 states that a district court “shall dismiss the action, without prejudice, if
17 the action is filed without” an affidavit by a medical expert setting forth “factually a specific act
18 or acts of alleged negligence.”9
But a Ninth Circuit panel in an unpublished disposition recently reversed one of this

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20 district’s no-affidavit dismissals. In doing so, the panel “predict[ed] that the Supreme Court of
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ECF No. 4.

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Id.

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ECF No. 3.

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Zohar v. Zbiegien, 334 P.3d 402, 405 (Nev. 2014) (quoting Nev. Rev. Stat. § 41A.071).

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ECF No. 3.

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Nev. Rev. Stat. § 41A.071.

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1 Nevada would hold that” an FTCA plaintiff suing the VA “does not have to comply” with the
2 affidavit requirement “even when a doctor or other medical professional committed the
3 underlying negligent acts or omissions.”10 It added that the state’s affidavit requirement likely
4 does not apply under the Erie doctrine because it “may be viewed as procedural, rather than
5 substantive. And federal law, not state law, governs all procedural aspects of a claim under the
6 FTCA,” which “contains no affidavit requirement.”11
Although that unpublished disposition in Kornberg v. Department of Veterans Affairs is

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8 not binding, it suggests to me how the Ninth Circuit would approach the NRS 41A.071 affidavit
9 requirement were it to consider this issue on appeal. So, in an exercise of caution, and because
10 the nature of the claim in Kornberg was materially indistinguishable from Spicer’s, I do not
11 require Spicer to provide a medical-malpractice affidavit to survive screening. I thus reject the
12 magistrate judge’s recommendation of dismissal and instead remand this case back to the
13 magistrate judge for rescreening in light of this order. Spicer is cautioned that, although he is not
14 required to provide a medical expert’s affidavit to plead his claim, this ruling says nothing of the
15 quantum or quality of evidence that may be required to prove his claim.
Conclusion

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Accordingly, IT IS HEREBY ORDERED that Spicer’s Objection to the Screening Order

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18 [ECF No. 5] is OVERRULED;
Nevertheless, I do not adopt the Report and Recommendation [ECF No. 3] for dismissal

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20 with leave to amend. Instead, I REMAND this case back to Magistrate Judge Hoffman for
21 rescreening in light of this order.
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January 26, 2018

________________________________
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U.S. District Judge Jennifer A. Dorsey
Judge
ct Judg Jennifer
ge
nif r

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Kornberg v. United States, 692 Fed. Appx. 467, 468 (unpublished) (9th Cir. June 13, 2017).

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Kornberg, 692 Fed. Appx. at 469 (internal citations omitted).
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