Daniel v. United States of America et al
Filing
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Memorandum Opinion and Order: Defendant's Motion to Dismiss is GRANTED IN PART and DENIED IN PART. The negligence and loss of consortium claims are DISMISSED. The wrongful death claim, however, remains pending. Judge Patricia A. Gaughan on 10/1/13. (LC,S) re 10
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Mary Daniel,
Administratrix of the Estate of
Laverne B. Daniel, Deceased,
Plaintiff,
vs.
United States of America,
Defendant.
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CASE NO. 1:13 CV 0588
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion & Order
Introduction
This matter is before the Court upon defendant’s Motion to Dismiss for lack of subject
matter jurisdiction (Doc. 10). This action is brought under Federal Tort Claims Act (FTCA). For
the following reasons, the motion is GRANTED IN PART and DENIED IN PART. Plaintiff’s
claims for negligence and loss of consortium are DISMISSED. Plaintiff’s claim for wrongful
death remains pending.
Facts
Plaintiff, Mary Daniel, was the wife of Laverne Daniel (“decedent”) and is the
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administratrix for his estate.1 On April 3, 2008, plaintiff’s decedent went to University Hospitals
of Cleveland’s emergency room. After surgery was performed at University Hospitals, decedent
was transferred to Wade Park Veterans Affairs Medical Center (“Wade Park”) for long term
care. He subsequently developed an infection in his right leg. On May 26, 2008, his leg was
amputated. He died on December 23, 2010.
On August 6, 2008, decedent filed an administrative tort claim with the VA. On May 15,
2009, the VA denied his claim. On October 14, 2009, decedent and Mary Daniel filed a
complaint against the United States in this Court. In that complaint, they alleged that negligence
by doctors at Wade Park caused personal injuries to decedent and loss of consortium to Mary
Daniel. Mary Daniel had never filed an administrative claim for her loss of consortium claim and
she filed a Notice of Voluntary Dismissal on December 14, 2009. On February 5, 2010, this
Court dismissed the remaining claims because decedent and Mary Daniel failed to attach an
affidavit of merit as required by Ohio R. Civ. P. 10(D)(2). That order was not appealed.
On March 1, 2012, Mary Daniel, now as administratrix of decedent’s estate, filed a
second complaint alleging personal injury to Laverne Daniel, personal loss of consortium to
Mary Daniel, and wrongful death. However, because there was never an administrative claim
filed for a wrongful death action, plaintiff filed a Notice of Voluntary Dismissal on July 17,
2012. On October 4, 2012, plaintiff filed, as administratrix, a second administrative claim with
the Department of Veterans Affairs, alleging that the VA physicians were negligent in failing to
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The following facts are taken from plaintiff’s complaint as well as exhibits filed with the
government’s Motion to Dismiss. The Court may consider affidavits and other documents outside
the record on a Rule 12(b)(1) motion, but it must do so in a manner that is fair to the non-moving
party. Rogers v. Stratton, Indus, Inc., 789 F.2d 913, 918 (6th Cir. 1986). Plaintiff has not contested
any of these dates or facts in her brief in opposition.
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properly treat decedent’s fractures, resulting in the amputation of his leg and his subsequent
death. The VA denied that claim on December 10, 2012.
On March 19, 2013, plaintiff thereafter filed this complaint against the government
alleging negligence by defendant in the care of the decedent, loss of consortium to Mary Daniel,
and wrongful death brought on behalf of the beneficiaries of decedent’s estate.
This matter is now before the Court upon the government’s Motion to Dismiss all of the
claims for lack of subject matter jurisdiction. Plaintiff opposes the motion.
Standard of Review
When a court’s subject matter jurisdiction is challenged under Rule 12(b)(1) of the
Federal Rules of Civil Procedure, the party seeking to invoke jurisdiction bears the burden of
proof. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Rogers v.
Stratton, 798 F.2d 913, 915 (6th Cir. 1986). This burden is not onerous. Musson Theatrical, Inc.
v. Federal Express Corp., 89 F.3d 1244, 1248 (6th Cir. 1996). The party need only show that the
complaint alleges a substantial claim under federal law. Id.
A 12(b)(1) motion to dismiss may constitute either a facial attack or a factual attack.
United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). Facial attacks question the sufficiency
of the jurisdictional allegations in the complaint. Id. Thus, those allegations must be taken as
true and construed in the light most favorable to the nonmoving party. Id. Factual attacks,
however, challenge the actual fact of the court’s jurisdiction. Id. In such cases, the truthfulness
of the complaint is not presumed. McGee v. East Ohio Gas Co., 111 F.2d 979, 982 (S.D. Ohio
2000) (citing Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320 (6th Cir. 1990)). Instead,
the Court may weigh any evidence properly before it. Morrison v. Circuit City Stores, Inc., 70
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F.Supp.2d 815, 819 (S.D. Ohio 1999) (citing Ohio Nat’l, 922 F.2d 320; Rogers, 798 F.2d 913).
The Court may consider affidavits and other documents outside the record on a Rule 12(b)(1)
motion, but it must do so in a manner that is fair to the non-moving party. Rogers v. Stratton,
Indus, Inc., 798 F.2d 913, 918 (6th Cir. 1986).
Discussion
1. Medical Negligence and Loss of Consortium Claims
The government argues that the Court lacks subject matter jurisdiction because the
negligence claim was not filed within the time limits set forth in the FTCA and plaintiff failed to
file an administrative claim for her loss of consortium. Plaintiff does not respond to the
government’s argument. For the following reasons, this Court lacks subject matter jurisdiction
over those claims.
Dismissal of the medical negligence claim is warranted. The FTCA “grants a limited
waiver of sovereign immunity and allows tort claims against the United States in the same
manner and to the same extent as a private individual under like circumstances.” Chomic v.
United States, 377 F.3d 607, 609 (6th Cir. 2004) (citing 28 U.S.C. § 2674). One of the conditions
contained in the FTCA’s waiver of immunity is a limitation on how long a plaintiff has to file a
claim. Ellison v. United States, 531 F.3d 359, 361 (6th Cir. 2008). The FTCA provides:
A tort claim against the United States shall be forever barred unless it is presented in writing
to the appropriate Federal agency within two years after such claim accrues or unless action is
begun within six months after the date of mailing, by certified or registered mail, of notice of
final denial of the claim by the agency to which it was presented.
28 U.S.C. § 2401(b).
A negligence claim accrues under the FTCA “at the time of the plaintiff’s injury.”
United States. v. Kubrick, 44 U.S. 111, 120 (1979). Decedent’s leg was amputated on May 26,
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2008. An administrative claim was received by the VA on August 6, 2008 and denied on May
15, 2009. A claim against the United States had to be filed no later than November 15, 2009 to
comply with the six month component of the FTCA. The instant complaint was not filed until
March 19, 2013. It is therefore untimely and this Court lacks subject matter jurisdiction to hear
the personal injury claim.
Dismissal of the loss of consortium claim is similarly warranted. The FTCA requires a
plaintiff to present an administrative claim to the responsible federal agency prior to the
initiation of a lawsuit in federal court. 28 U.S.C. § 2675(a). In the administrative claim presented
to the VA in 2008, only decedent’s negligence claim was presented. Plaintiff’s loss of
consortium claim was not. In the second claim presented to the VA on October 4, 2012, plaintiff
as administratrix only presented a claim for wrongful death which is insufficient to give notice to
the VA for a loss of consortium claim. Rucker v. U.S. Dep’t of Labor, 789 F.2d 891, 893 (6th
Cir. 1986) (finding that even identification of the plaintiff as decedent’s wife on S-95 form did
not give notice to fulfill the FTCA’s requirement for filing an administrative claim for loss of
consortium). Plaintiff did not present her loss of consortium claim to the VA, and this Court
lacks jurisdiction to decide it under the FTCA.
Because this Court lacks subject matter jurisdiction with regard to plaintiff’s claims for
medical negligence and loss of consortium, the government’s motion to dismiss is GRANTED
with regard to those two claims.
2. Wrongful Death Claim
The government’s liability in an FTCA claim is determined by the substantive laws of the
state in which the alleged tort occurred. Huddleston v. United States, 485 Fed. Appx. 744, 745
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(6th Cir. 2012). FTCA claims involve a two-step inquiry: first, whether local law permits
liability and, if so, what are the damages, and then second, whether the federal law bars the statemandated recoveries. Premo v. United States, 599 F.3d 540, 545 (6th Cir. 2010).
The government disputes that local law, here Ohio law, would permit liability.
Specifically, the government argues that Ohio’s statute of repose for medical claims
extinguished plaintiff’s claim before she brought it before this Court. The government argues
that plaintiff’s wrongful death claim is a statutorily defined “medical claim” because it is a claim
alleging that wrongful death arose from medical negligence in the treatment of the decedent. As
such, the statute of repose requires that a “medical claim” be commenced in federal court within
the four-year time period “after the occurrence of the act or omission constituting the alleged
basis” of the claim. Ohio Rev. Code § 2305.113(C). The government contends that plaintiff’s
wrongful death claim is based on her decedent’s treatment at the VA on May 26, 2008. This
claim was not brought until, at the earliest, October 4, 2012, when plaintiff filed her
administrative claim with the VA. Thus, the four-year period in the statute of repose has run and
plaintiff is barred from bringing this claim under Ohio law.
Plaintiff argues that Ohio’s statute of repose does not apply to wrongful death claims.
Rather, plaintiff argues that wrongful death actions are subject only to their own statute of
limitations in Ohio Rev. Code § 2125(D)(1), which requires wrongful death claims to be
commenced within two years of the date of decedent’s death. Because plaintiff filed this action
within the two-year statute of limitations required for a wrongful death claim, plaintiff argues
that her claim can be maintained under the FTCA.
Upon review, the Court finds that plaintiff’s wrongful death claim is not barred by Ohio’s
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statute of repose.
The government’s argument that both a statute of repose and a statute of limitations can
govern the same cause of action is well-taken. As the Ohio Supreme Court has acknowledged, a
statute of limitations “limits the time in which a plaintiff may bring suit after the cause of action
accrues” while a statute of repose “potentially bars a plaintiff’s suit before the cause of action
aries.” Sedar v. Knowlton Constr. Co., 551 N.E.2d 938, 941 (Ohio 1990), rev’d on other grounds
by, Brennaman v. R.M.I. Co., 639 N.E.2d 425 (Ohio 1994). However, the Court finds that the
statute of repose for medical claims is inapplicable to this wrongful death claim.
A “medical claim” in the statute of repose is defined as follows:
(3) “Medical claim” means any claim that is asserted in any civil action against a
physician, podiatrist, hospital, home, or residential facility, against any employee or agent
of a physician, podiatrist, hospital, home, or residential facility, or against a licensed
practical nurse, registered nurse, advanced practice registered nurse, physical therapist,
physician assistant, emergency medical technician-basic, emergency medical technicianintermediate, or emergency medical technician-paramedic, and that arises out of the
medical diagnosis, care, or treatment of any person.
Ohio Rev. Code § 2305.113(E).
In its Motion to Dismiss, the government relies on Fletcher v. University Hospitals of
Cleveland to support its argument that a wrongful death action is a “medical claim.” 873 N.E.2d
365 (Ohio Ct. App. 2007), rev’d on other grounds, 897 N.E.2d 147 (Ohio 2008). The court
construed the meaning of “medical claim” in Ohio Rev. Code § 2305.113 and decided that a
wrongful death claim was a medical claim for purposes of the pleading requirements in Ohio
Civ. Rule 10(D)(2). In its decision, the court focused simply on the fact that a wrongful death
claim was a suit against a hospital that “arose out of the medical diagnosis, care or treatment of
the decedent.” Id. at 368.
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This Court, however, finds Fletcher contrary to the Ohio Supreme Court’s decisions on
the nature of wrongful death claims. To begin, the Court observes that, in its reversal of the
Fletcher decision on other grounds, the Ohio Supreme Court specifically noted: “Fletcher did not
cross-appeal the appellate court's ruling that her wrongful-death claim requires an affidavit
[because it was a “medical claim”], so that issue is not before us.” Fletcher, 897 N.E.2d at n.2.
The Ohio Supreme Court’s discussion of the relation of medical malpractice and
wrongful death statutes of limitations is instructive to decide the applicability of the statute of
repose here. In Koler v. St. Joseph Hospital, 432 N.E.2d 821 (Ohio 1982), the Ohio Supreme
Court was faced with deciding whether a one-year medical malpractice statute of limitations or a
two-year wrongful death statute of limitations applied to a wrongful death action. Defendants in
that case were arguing that a wrongful death claim was a statutorily defined “medical claim”
because it was a suit against a hospital and, since medical claim was used synonymously with
malpractice earlier in the statute, the later enacted malpractice statute of limitations governed the
wrongful death claim. Id. The Ohio Supreme Court, however, rejected that argument. Id.
Looking at its precedents, the court noted that there is a deep division between a
malpractice claim and a wrongful death claim under Ohio law:
Although originating in the same wrongful act or neglect, the two claims are quite
distinct, no part of either being embraced in the other. One is for the wrong to the injured
person and is confined to his personal loss and suffering before he died, while the other is
for the wrong to the beneficiaries and is confined to their pecuniary loss through his
death. One begins where the other ends, and a recovery upon both in the same action is
not a double recovery for a single wrong but a single recovery for a double wrong.
Koler, 432 N.E.2d at 823 (citing Klema v. St. Elizabeth’s Hosp. of Youngstown, 166 N.E.2d 765
(Ohio 1960)).
The Koler court decided that it would continue to apply the reasoning it had expounded in the
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earlier case of Klema to a wrongful death claim. Koler, 432 N.E.2d at 823.
In Klema, the Ohio Supreme Court also had to decide whether the medical malpractice or
the wrongful death statute of limitations applied to a wrongful death claim. Klema, 166 N.E.2d at
765. The court noted that a wrongful death claim, unlike a malpractice claim, was solely a
statutory action and did not exist at common law. Id. at 769. As a creature of statute, the court
looked to the text of the wrongful death statute to decide whether the malpractice statute of
limitations could apply. Id. At that time, the wrongful death statute of limitations read that:
“Except as otherwise provided by law, every such (wrongful death) action must be commenced
within two years after the death of such deceased person.” Id. at 765. The court declared: “The
action being a statutory one relating to a specific type of cause, i. e., wrongful death, the phrase,
‘except as otherwise provided by law,’ can only relate to other provisions relating to death. And
the only other provisions relating to death actions are those contained in the wrongful death
statute itself[.]” Id. at 769. The court therefore rejected that the malpractice statute of limitations,
laid out elsewhere in the Ohio Revised Code, applied to wrongful death claims. Id.
In rendering its decision, the Koler court noted that the wrongful death statute continued
to read “except as otherwise provided in law” as it had at the time of Klema, and that the
malpractice statute of limitations continued to be set forth in another division of the Ohio
Revised Code. 432 N.E.2d at 824. “Whatever confusion there may be regarding the relative
meanings of the terms “medical claim” and “malpractice,” it was clear to the Koler court that a
malpractice action could not be a wrongful death action. Id. The Koler court reasoned that the
Ohio legislature was aware that its precedents had refused to apply the malpractice statute to a
wrongful death claim and that the legislature had not responded by changing the wrongful death
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statute. Id. The court concluded that absent clear legislation to the contrary, wrongful death
actions were governed only by provisions in the wrongful death statute. Id.
The current wrongful death statute reads: “Except as provided in division (D)(2) of this
section, a civil action for wrongful death shall be commenced within two years after the
decedent's death.” Ohio Rev. Code § 2125.02(D)(1). Section (D)(2) of the wrongful death
statutes only deals with “wrongful deaths involving products liability.” That is the sole category
of exceptions to the two-year wrongful death statute of limitations the Ohio legislature has seen
fit to include. Following the reasoning in Klema and Koler, the Court finds that the “medical
claim” statute of repose, set forth in another division of the code and not in the wrongful death
division, does not apply to plaintiff’s wrongful death claim.
As the Court finds that plaintiff’s wrongful death claim is not barred by Ohio’s statute of
repose for medical claims, defendant’s Motion to Dismiss for lack of subject matter jurisdiction
as to this claim is DENIED.
Conclusion
For the foregoing reasons, defendant’s Motion to Dismiss is GRANTED IN PART and
DENIED IN PART. The negligence and loss of consortium claims are DISMISSED. The
wrongful death claim, however, remains pending.
IT IS SO ORDERED.
Dated: 10/1/13
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
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