Earl v. United States

Filing 23

ORDER - Plaintiff's Motion to Amend [DE-14] is DENIED as futile. The Government's Motion to Dismiss [DE-ll] is ALLOWED as to any medical malpractice claims asserted by Plaintiff, but DENIED as to Plaintiff's claim sounding in ordinary negligence. The Clerk of Court is DIRECTED to continue with the management of this case. Signed by Senior Judge James C. Fox on 4/2/2015. Order sent to Stephen Earl, 1219 West Thomas St., Rocky Mount, NC 27804 via US Mail on 4/2/2015. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:14-CV-115-F
STEPHEN EARL,

Plaintiff,

v.
UNITED STATES OF AMERICA,

Defendant.

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ORDER

This matter is before the court on the Motion to Dismiss [DE-ll] filed by Defendant United
States of America ("Government"). The prose Plaintiff has filed a response to the motion, as well
as an "Amended Complaint" [DE-14], which this court construes as a motion to amend the
complaint. For the reasons more fully stated below, the motion to amend is DENIED and the motion
to dismiss is ALLOWED in part and DENIED in part.
I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, proceeding prose, initiated this action on February 28,2014, by filing a complaint
[DE-l] in this court against the Government alleging (1) malpractice; (2) "refusal of follow up care;"
(3) lack of proper care; and (4) "induced lack of post surgical care." Compl. [DE-l]. Plaintiff
attached to the complaint two letters. The first is dated June 7, 2012, and is from the Office of
Regional Counsel for the Department of Veterans Affairs. See Compl., Ex. A [DE-1-1 ]. In the letter,
the Regional Counsel informs Plaintiff that his claim asserting damages "allegedly resulting from
treatment by the U.S. Department ofVeterans Affairs (VA) Asheville, NC VA Medical Center on
or about February 4, 201 0" has been denied. !d. at 1. The second letter is dated November 6, 2012,

and is from an attorney who ostensibly previously-represented Plaintiff. See Compl., Ex. B [DE-1-2].
The letter appeals the denial of Plaintiffs tort claim, and argues that Plaintiff suffered right eye
damage because he was refused treatment at the Asheville VA Medical Center and Durham VA
Medical Center because of a "jurisdictional squabble" between the two centers. !d. at 1. He asserts
that "the VA facilities involved did not just fail to recognize and treat the complications, they refused
to treat [Plaintiff] at all." !d.
On June 24, 2014, Plaintiff filed an Amended Complaint naming the Government, the
Acting Secretary of the Veterans Affairs, and several employees of the Veterans Administration
Medical Center, as Defendants. See Amended Compl. [DE-3]. He alleged "malpractice, refusal of
follow-up care[,] lack of proper care[,] induced lack of post surgical care, violation of patients[']
right to services." He again attached the June 7, 2012 and November 6, 2012, letters.
After receiving an extension of time to file a response to the Amended Complaint, the
Government filed a Certification of Scope of Employment and Substitution [DE-l 0], wherein R.A.
Renfer, Jr. certified that the individually named defendants (James Crandell, Dennis McClaine,
Lonnie Hatton, Joe Sovatos, E. Douglas Bradshaw, Jr., and Tisha Balknell) were acting within the
official scope of their employment as United States Department of Veterans Affairs personnel at the
time of the incidents alleged, and that the Government was substituted as party defendant in lieu of
the individually named defendants. The Government also moved to dismiss this action for Plaintiffs
failure to comply with the certification prerequisite in Rule 9G) of the North Carolina Rules of Civil
Procedure.
In response, Plaintiff filed another Amended Complaint, which included the following
statements:
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Malpractice refusal of follow-up care violation of patient[']s rights to services.
Glaucoma specialist Robert Hunter
2201 Ewing St. Durham N.C (Duke University Medical Facility). Duke Medical
Team review case+ concluded no follow care was given.
Additional surgery performed unsuccessfully.
Mot. to Amend [DE-14]. Plaintiff also filed two responses [DE-15; DE-16] to the motion to dismiss.
In both, Plaintiff stated that Dr. Thomas Hunter, "a glaucoma specialist from the prestigious [D]uke
[U]niversity concurred along with his colleagues that permanent scaring [sic] &damage to eye &
vision had occurred due to no follow up care with specific eye drops i.e. negligence." He also asserts
that the doctrine of res ipsa loquitur is applicable to this case.
Government filed response in opposition to Plaintiffs amended pleading, arguing that
because he had already filed an amended complaint once as a matter of right, it would treat the
amended pleading as a motion for leave to amend the complaint. The Government contended that
the motion for leave to amend must be denied as a futile under Rule 15(a). The Government also
filed a reply in support of its motion to dismiss, arguing that the doctrine of res ipsa loquitur is
inapplicable to Plaintiffs claims, and also attaching the declaration of Dr. Thomas Hunter-Plaintiffs
treating physician referenced in his opposition to the motion to dismiss-stating that he has not
represented to Plaintiff that any permanent scarring and damage to his right eye and vision was due
to negligence on behalf of any professional affiliated with the United States Veterans Administration
Medical Centers in Durham or Asheville. Decl. of Thomas Hunter [DE-22-1]

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II. STANDARD OF REVIEW
Rule 12(b)(6) allows a court to dismiss an action which fails to state a claim on which relief
may be granted. Fed. R. Civ. P. 12(b)(6). In considering amotion to dismiss, the court assumes the
truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent

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with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, the
"' [f]actual allegations must be enough to raise a right to relief above the speculative level' and have
'enough facts to state a claim to relief that is plausible on its face.' " Wahi v. Charleston Area Med.
Ctr., Inc., 562 F.3d 599,616 n.26 (4th Cir. 2009) (quoting Bel! At!. Corp. v. Twombly, 550 U.S. 544,

555 (2007)); Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) ("While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations."). When considering a
motion to dismiss, the court must keep in mind that" a prose complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson, 551
U.S. at 93 (internal citation omitted). Notwithstanding the court's obligation to liberally construe a
pro se plaintiffs allegations, however, the court cannot ignore a clear failure to allege facts which

set forth a claim cognizable in a federal district court. See Weller v. Dep't ofSoc. Servs., 901 F.2d
387,391 (4th Cir. 1990) ("The 'special judicial solicitude' with which a district court should view
such pro se complaints does not transform the court into an advocate. Only those questions which
are squarely presented to a court may properly be addressed.").
Additionally where, as here, a party no longer may amend a pleading once as a matter course,
Federal Rule of Civil Procedure 15(a)(2) allows "a party [to] amend its pleading only with the
opposing party's written consent or the court's leave. The court should freely give leave when
justice so requires." Fed. R. Civ. P. 15(a)(2). District courts should liberally allow amendments:
If the underlying facts or circumstances relied upon by a plaintiff may be a proper
subject of relief, he ought to be afforded an opportunity to test his claim on the
merits. In the absence of any apparent or declared reason-such as undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of amendment, etc.-the
leave sought should, as the rules require, be "freely given."
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Foman v. Davis, 371 U.S. 178, 182 (1962). However, leave to amend is "not to be granted
automatically," Deasy v. Hill, 833 F.2d 38, 40 (4th Cir. 1987), and a district court has discretion to
deny amendment so long as the court does not "outright refuse 'to grant the leave without any
justifying reason."' Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010)
(quoting Foman, 371 U.S. at 182).
III. ANALYSIS

The resolution of the pending motions requires the application of both the Federal Tort
Claims Act ("FTCA") and North Carolina law regarding negligence and medical malpractice actions.
The United States has sovereign immunity unless it waives that immunity, and even if it does
waive immunity, it may be sued only to the extent of the terms of the waiver. United States v.

Sherwood, 312 U.S. 584, 586 (1941). The Federal Torts Claims Act (FTCA) provides a limited
waiver of sovereign immunity for a tort committed by a government employee within the scope of
his employment. The limited waiver provides that the United States may be held liable only to the
extent that a"private person would be held liable to the claimant in accordance with the law of the
placewhere the act or omission occurred." 28 U.S.C. § 1346(b); see United States v. Muniz, 374 U.S.
150, 152-53 (1963). Since the acts alleged in the instant case occurred in North Carolina, North
Carolina law applies to plaintiffs FTCA claim.
InNorth Carolina, a plaintiff alleging medical malpractice must comply with North Carolina
Rule of Civil Procedure 9G), which states:
Any complaint alleging medical malpractice by a health care provider pursuant to
G.S. 90-21.11 (2)a. in failing to comply with the applicable standard of care under
G.S. 90-21.12 shall be dismissed unless:
(1) The pleading specifically asserts that the medical care and all medical records
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pertaining to the alleged negligence that are available to the plaintiff after reasonable
inquiry have been reviewed by a person who is reasonably expected to qualifY as an
expert witness under Rule 702 of the Rules ofEvidence and who is willing to testifY
that the medical care did not comply with the applicable standard of care;
(2) The pleading specifically asserts that the medical care and all medical records
pertaining to the alleged negligence that are available to the plaintiff after reasonable
inquiry have been reviewed by a person that the complainant will seek to have
qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence
and who is willing to testifY that the medical care did not comply with the applicable
standard of care, and the motion is filed with the complaint; or
(3) The pleading alleges facts establishing negligence under the existing common-law
doctrine of res ipsa loquitur.
N.C. R. Civ. P. 9G). The North Carolina General Assembly enacted Rule 9G) "in part, to protect
defendants from having to defend frivolous medical malpractice actions by ensuring that before a
complaint for medical malpractice is filed, a competent medical professional has reviewed the
conduct of the defendants and concluded that the conduct did not meet the applicable standard of
care." Estate of Waters v. Jarman, 144 N.C. App. 98, 100, 547 S.E.2d 142, 144 (2001) (quotation
omitted); see Thigpen v. Ngo, 355 N.C. 198, 203-04, 558 S.E.2d 162, 166 (2002). The failure to
comply with Rule 9G) is grounds for dismissal of an action. See Littlepaige v. United States, No. 121367,528 F. App'x 289,290 (4th Cir. 2013) (affirming district court's dismissal of complaint under
Rule 12(b)(6) that sounded in medical malpractice under North Carolina law where plaintiff failed
to file certification under Rule 9G)); Estate of Williams-Moore v. Alliance One Receivables Mgmt.,
Inc., 335 F. Supp. 2d 636,649 (M.D.N.C. 2004); Frazier v. Angel Med Ctr., 308 F. Supp. 2d 671,

676-77 (W.D.N.C. 2004); Moore v. Pitt Cnty. Mem 'I Hosp., 139 F. Supp. 2d 712,713-14 (E.D.N.C.
2001).
Rule 9(j) provides one narrow exception: a litigant is excused from Rule 9(j)'s pre-filing
certification requirement if negligence may be established under the doctrine of res ipsa loquitur.

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See N.C. R. Civ. P. 90)(3); Rowell v. Bowline, 197 N.C.App. 691, 696-97, 678 S.E.2d 748, 751

(2009). Additionally, if a plaintiffs claim sounds in ordinary negligence, as opposed to medical
malpractice, Rule 90) is inapplicable. Estate ofWaters, 144 N.C. App. at 103, 678 S.E.2d at 145.
Here, Plaintiffs Original and Amended Complaint do not contain a Rule 90) certification.
Accordingly, unless the second amended complaint-which the court is interpreting as a motion for
leave to amend-contains the certification, or Plaintiffs allegations rest on res ipsa loquitur or his
claims sound in ordinary negligence, the motion for leave to amend must be denied as futile and the
action dismissed.
The court cannot view the Plaintiffs statements in responses to the motion to dismiss, or the
motion for leave to amend, to constitute a Rule 90) certification, especially in light of the declaration
filed by Dr. Thomas Hunter affirmatively stating that "[a]t no time have I represented to Mr. Earl,
directly or indirectly, that any permanent scarring and damage to his right eye and vision was due
to negligence on behalf of any medical professional affiliated with the United States Veterans
Administration Medical Centers in Durham or Asheville," and that "[a]t no time have I agreed to
testify, on behalf of Mr. Earl, that I reviewed his medical records and determined that his medical
care fell below the applicable standard of care." Decl. of Thomas Hunter [DE-22-1]

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Nor can the court view Plaintiffs invocation of res ipsa loquitur in his responses to be proper
in this case. The use of the doctrine of res ipsa loquitur "is allowed only when the occurrence
clearly speaks for itself." Diehl v. Kofler, 140 N.C. App. 375,378, 536 S.E.2d 359,362 (2000); see,
e.g., Tice v. Hall, 310 N.C. 589, 593, 313 S.E.2d 565, 567 (1984) (surgical sponge left in patient's

body). Specifically, the doctrine of res ipsa loquitur applies when "(1) direct proof of the cause of
an injury is not available, (2) the instrumentality involved in the accident is under the defendant's

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control, and (3) the injury is of a type that does not ordinarily occur in the absence of some negligent
act or omission." Grigg v. Lester, 102 N.C. App. 332, 333, 401 S.E.2d 657, 657-58 (1991).
Additionally, "in order for the doctrine to apply, not only must plaintiff have shown that [the] injury
resulted from defendant's [negligent act], but plaintiff must be able to show-without the assistance
of expert testimony-that the injury was not of a type typically occurring in absence of some
negligence by defendant." Howie v. Walsh, 168 N.C. App. 694, 698, 609 S.E.2d 249,251 (2005)
(quotations omitted). To the extent that Plaintiff is alleging that certain medical professionals, in the
exercise of their judgment, withheld post-surgical care from him which caused him injury, the court
finds that the doctrine of res ipsa loquitur is not applicable. See e.g., Cartrette v. Duke Univ. Me d.
Ctr., 189 N.C. App. 403, 659 S.E.2d 98, 2008 WL 711171, at *4 (2008) (stating that "the doctrine

ofres ipsa loquitur in medical malpractice cases has generally been limited to injuries resulting from
surgical instruments or other foreign objects left in the body following surgery and injuries to a part
of the patient's anatomy outside of the surgical field.") (citations and quotation omitted).
Accordingly, to the extent that Plaintiffs sets forth claims based on medical malpractice, the claims
fail because of the lack of the Rule 9G) certification.
Plaintiffs allegations, however, also appear to sound in ordinary negligence. Under North
Carolina law, a plaintiff may "bring ordinary negligence claims, in addition to medical malpractice
claims, against a health care provider." Iodice v. United States, 289 F .3d 270, 276 (2002). By statute,
medical mal practice claims " 'arise [ ] out ofthe furnishing or failure to furnish professional services'
by a health care provider." /d. (quoting N.C. Gen. Stat.§ 90-21.11). Conversely, negligence claims
against a health care provider that do not "arise out of' the "furnishing" of"professional services,"
are not medical malpractice claims, and are governed by ordinary negligence principles. /d. (citing

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Estate ofWaters, 144 N.C. App. at 103, 547 S.E.2d at 145-56). In distinguishing between the two
claims, North Carolina courts have held that "negligence actions brought against a hospital which
pertain to clinical patient care constitute medical malpractice claims; however, where the ...
negligence claim arises out of policy, management or administrative decisions [of a facility] ... the
claim is instead derived from ordinary negligence principles." Estate of Waters, 144 N.C. App. at
103, 547 S.E.2d at 145.
At this stage of the proceeding, the court cannot say that the allegations in Plaintiffs
Amended Complaint, when viewed in conjunction with the letters attached thereto, are focused only
on medical malpractice as that term is defined under North Carolina law. Rather, the 'jurisdictional
squabble" referenced in Plaintiffs filings appear to be focused on the "policy, management or
administrative decisions" ofthe relevant medical centers as opposed to the furnishing of professional
services to Plaintiff. Accordingly, to the extent that Plaintiff asserts a claim sounding in ordinary
negligence against the United States, the claim survives.
In sum, the motion to amend filed by Plaintiff is DENIED as futile. The Government's
Motion to Dismiss [DE-ll] is ALLOWED as to any medical malpractice claims asserted by Plaintiff,
but DENIED as to Plaintiffs claim sounding in ordinary negligence.

IV. CONCLUSION
For the foregoing reasons, Plaintiffs Motion to Amend [DE-14] is DENIED as futile. The
Government's Motion to Dismiss [DE-ll] is ALLOWED as to any medical malpractice claims
asserted by Plaintiff, but DENIED as to Plaintiffs claim sounding in ordinary negligence. The Clerk
of Court is DIRECTED to continue with the management ofthis case.

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SO ORDERED.
,.;

This the£ day of April, 2015.

"or United States District Judge

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