Martin et al v. United States of America
Filing
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OPINION AND ORDER by Judge Claire V Eagan : Dkt. # 11 is granted insofar as plainitffs must file an affidavit of merit in support of their negligence claims no later than July 25, 2016 ; granting 11 Motion to Dismiss; denying 13 Motion to Dismiss for Lack of Jurisdiction (djh, Dpty Clk)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
CARA MARTIN and JACOB KENNEDY,
Individually and as Next Friends of
R.K., a minor child,
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Plaintiffs,
v.
UNITED STATES OF AMERICA ex rel.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, INDIAN HEALTH
SERVICE d/b/a CHEROKEE NATION
W.W. HASTINGS INDIAN HOSPITAL,
Defendants.
Case No. 15-CV-487-CVE-TLW
OPINION AND ORDER
Now before the Court are Defendant United States of America’s Motion to Dismiss (Dkt.
# 11) and Defendant United States of America’s Motion to Dismiss Certain Claims and Losses for
Failure to Exhaust Claims (Dkt. # 13). Defendant United States of America ex rel. Department of
Health and Human Services argues that plaintiffs failed to exhaust their administrative remedies as
to certain theories of liability alleged in the complaint and that plaintiffs have failed to attach an
affidavit of merit to their complaint showing that they have consulted with a qualified expert before
filing this case.
I.
On September 30, 2013, Cara Martin was admitted to the labor and delivery unit of the
Cherokee Nation W.W. Hastings Hospital (the Hospital), and Dr. Lana Myers was caring for Martin.
Plaintiffs allege that Dr. Myers failed to “timely note that R.K’s heart rate had become severely
bradycardic and appropriately intervene.” Dkt. # 2, at 2. Based on the allegations of the complaint,
it appears that Dr. Myers did discover this problem and consulted with Dr. Martin Jacob, and
plaintiffs allege that the two physicians “belatedly came to the obvious conclusion that it was
medically necessary to deliver R.K. immediately by C-section.” Id. During the delivery of R.K.,
Dr. Myers accidentally resected the skin on R.K.’s head and exposed half of his skull. R.K. was
flown by helicopter to Saint Francis Hospital (Saint Francis) in Tulsa, Oklahoma, and Dr. Edward
Ford performed a procedure to repair the damage to R.K.’s skull. R.K. stayed at Saint Francis for
about a week until he was discharged to go home with his parents.
Martin and R.K.’s father, Jacob Kennedy, filed separate notices of tort claims against the
federal government, and they demanded $10 million in damages. Dkt. # 13-1; Dkt. # 13-2. Martin
and Kennedy allege that Dr. Myers and Dr. Jacob decided to proceed with a Cesarian section after
noticing “some complications with the heart rate of the baby” and that during the procedure Dr.
Myers cut R.K.’s head with a scalpel. Dkt. # 13-1, at 8. They allege that R.K. will be permanently
disfigured and suffer from unknown neurological complications. Dr. Ford performed surgery to
repair the laceration at Saint Francis, and further surgery may be necessary to minimize any
disfigurement. Martin and Kennedy alleged that the Hospital was grossly negligent in its care of
R.K. and they sought damages for medical expenses, pain and suffering, and permanent
disfigurement of R.K.
On August 24, 2015, Martin and Kennedy filed this case alleging claims of negligence (count
one) and loss of consortium (count two). Plaintiffs claim that the Hospital was negligent per se in
failing to notice a serious heart complication in a timely manner and for the trauma caused to R.K.
during his delivery. Dkt. # 2, at 3. They seek damages in excess of $75,000. Plaintiffs allege that
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they complied with the administrative requirements of the Federal Tort Claims Act, 28 U.S.C.§
2675(a) (FTCA) before filing the complaint. Id. at 1-2.
II.
The exhaustion of administrative remedies is a jurisdictional prerequisite under the FTCA,
and defendant’s motion is treated a motion to dismiss for lack of subject matter jurisdiction under
Fed. R. Civ. P. 12(b)(1). See Shikles v. Sprint/United Management Co., 426 F.3d 1304, 1317 (10th
Cir. 2005); Woodman v. Runyon, 132 F.3d 1330, 1342 (10th Cir. 1997). When considering a
motion to dismiss under Rule 12(b)(1), the Court must determine whether the defendant is facially
attacking the complaint or challenging the jurisdictional facts alleged by the plaintiff. In Holt v.
United States, 46 F.3d 1000 (10th Cir. 1995), the Tenth Circuit stated:
Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction
take two forms. First, a facial attack on the complaint’s allegations as to subject
matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial
attack on the complaint, a district court must accept the allegations in the complaint
as true.
Second, a party may go beyond allegations contained in the complaint and challenge
the facts upon which subject matter jurisdiction depends. When reviewing a factual
attack on subject matter jurisdiction, a district court may not presume the truthfulness
of the complaint’s factual allegations. . . . In such instances, a court’s reference to
evidence outside the pleadings does not convert the motion to a Rule 56 motion.
Id. at 1002-03. Defendant relies on evidence outside the pleadings, specifically plaintiffs’ notices
of tort claims, and the Court will construe the motion as a factual attack on the jurisdictional facts
alleged by plaintiffs. In ruling on a factual attack on subject matter jurisdiction, a court “has wide
discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed
jurisdictional facts” without converting the motion into a motion for summary judgment. Stuart v.
Colorado Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001) (quoting Holt, 46 F.3d at 1003);
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see also Davis ex rel. Davis v. United States, 343 F.3d 1282, 1295-96 (10th Cir. 2003) (district court
had authority to review evidence outside the pleadings on issue of exhaustion of administrative
remedies without converting defendant’s motion to dismiss into a motion for summary judgment).
III.
A.
Defendant argues that plaintiffs failed to exhaust their administrative remedies as to their
theory of liability that Dr. Myers was negligent in failing to promptly diagnose the problem with
R.K.’s heart rate, because there were no allegations in the notices of tort claims suggesting that
plaintiffs would seek to hold defendant liable on this basis. Dkt. # 13, at 5. Defendant also argues
that plaintiffs failed to exhaust their administrative remedies as to the loss of consortium claim. Id.
at 6. Plaintiffs respond that the notices of tort claims provided sufficient notice of the factual basis
for their claims, and they argue that they are not required to allege legal theories of recovery in a
notice of tort claim. Dkt. # 18, at 6-9.
“The [FTCA], enacted in 1946, provides that the United States shall be liable, to the same
extent as a private party, ‘for injury or loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the Government while acting within the
scope of his office or employment.’” Kosak v. United States, 465 U.S. 848, 851-52 (1984). The
FTCA allows a federal district court to hear tort claims against the United States if a party complies
with the notice requirements of the statute. Bradley v. United States ex rel. Veterans Administration,
951 F.2d 268, 270 (10th Cir. 1991). A notice of tort claim must contain “(1) a written statement
describing the injury in sufficient detail to allow the agency to begin an investigation into the
possibility of potentially tortious conduct, and (2) a request for a sum certain in damages.” Lopez
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v. United States, ___ F.3d ___, 2016 WL 2957156, *6 (10th Cir. May 23, 2016). The notice
requirements are jurisdictional and must be complied with in order to bring a tort claim against the
United States. In re Franklin Savings Corp., 385 F.3d 1279, 1286 (10th Cir. 2004). The Tenth
Circuit has held that the notice requirements “should not be interpreted inflexibly,” and a notice of
tort claim will be sufficient if it provides notice of “the facts and circumstances underlying a claim
rather than the exact grounds upon which the plaintiff seeks to hold the government liable.” Estate
of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 853 (10th Cir. 2005).
The Court has reviewed the notices of tort claims received by defendant and finds that the
notices provided sufficient detail to allow defendant to investigate the claims asserted in plaintiffs’
complaint. The notices specifically mention that R.K. was having complications related to his heart
rate and that Dr. Myers called Dr. Jacobs to consult about the complications. Defendant argues that
the notices fail to specifically allege that Dr. Myers was negligent in failing to timely diagnose this
complication. However, plaintiffs were not required to spell out each theory of liability in the
notices of tort claims, and it is reasonable to assume that defendant would have investigated when
Dr. Myers actually or should have learned of R.K.’s heart complication based on the facts contained
in the notices of tort claims. Defendant also argues that plaintiffs failed to disclose in the notices
of tort claims that they were seeking to recover for loss of consortium. The notices identified $5,821
in medical bills owed to Saint Frances, but the notices also allege that R.K. is seeking damages for
pain and suffering and permanent disfigurement in amount not to exceed $10,000,000. Defendant
has not argued that this amount is facially excessive or somehow fails to qualify as a “sum certain”
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for the purpose of notice of tort claim.1 The notices of tort claim do not specifically mention
damages sought by R.K’s parents for their alleged loss of consortium, but such damages are
derivative of the damages sought on behalf of R.K. and defendant could have reasonably foreseen
that it could be liable for loss of consortium based on the facts alleged in the notices of tort claims
filed by plaintiffs.
B.
Defendant argues that plaintiffs have not complied with a requirement under Oklahoma law
to consult with a qualified medical expert and attach an affidavit of merit stating that they have good
cause to believe that they have meritorious claims against defendant. Plaintiffs responds that expert
testimony is unnecessary in this case because they have alleged that defendant was negligent under
the doctrine of res ipsa loquitor and they were not required to attach an affidavit of merit to the
complaint.
The source of the substantive law governing plaintiffs’ tort claim is the “law of the place
where the act or omission occurred,” and the parties’ do not dispute that Oklahoma law applies to
plaintiffs’ tort claims. 28 U.S.C. § 1346(b)(1); Levin v. United States, 133 S. Ct. 1224 (2013).
Under OKLA. STAT. tit. 12, § 19.1, a plaintiff in a negligence action where expert testimony will be
required shall attach to the complaint an affidavit stating that:
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Defendant argues that plaintiffs fail to respond to its argument that the notices of tort claims
fail to specifically allege that plaintiffs were seeking damages for loss of consortium, and it
claims that plaintiffs have conceded this issue. Dkt. # 19, at 3. The Court disagrees and
finds that this issue was not conceded, although plaintiffs’ response to the motion to dismiss
does focus on the alleged failure of the notices of tort claims to disclose that plaintiffs are
seeking to hold defendant liable for Dr. Myers’ negligence in failing to timely diagnose
R.K.’s heart complication.
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a.
the plaintiff has consulted and reviewed the facts of the claim with a qualified
expert,
b.
the plaintiff has obtained a written opinion from a qualified expert that
clearly identifies the plaintiff and includes the determination of the expert
that, based upon a review of the available material including, but not limited
to, applicable records, facts or other relevant material, a reasonable
interpretation of the facts supports a finding that the acts or omissions of the
defendant against whom the action is brought constituted negligence, and
c.
on the basis of the review and consultation of the qualified expert, the
plaintiff has concluded that the claim is meritorious and based on good cause.
If a plaintiff fails to attach an affidavit to the complaint, a court may dismiss the case without
prejudice to refiling or grant the plaintiff an extension of time to file an affidavit in compliance with
§ 19.1. Federal district courts in Oklahoma have required plaintiffs to comply with the requirement
to file an affidavit under § 19.1. See Horan v. Detello, 2015 WL 4132908 (N.D. Okla. July 8, 2015);
Norman v. United States ex rel. Veteran’s Admin. Med. Ctr., 2013 WL 425032 (W.D. Okla. Feb.
4, 2013).
The Court finds that plaintiffs were required to attach an affidavit of merit to the complaint,
and they are not exempt from this requirement merely because they included allegations of res ipsa
loquitor. It is clear from the complaint and plaintiffs’ response (Dkt. # 18) to defendant’s motion
to dismiss that they intend to allege an ordinary negligence claim that includes allegations of res ipsa
loquitor. Plaintiffs vehemently argue that they exhausted their administrative remedies as to their
claim that Dr. Myers should have discovered R.K.’s heart complication sooner, and plaintiffs will
need expert testimony to show that Dr. Myers breached the relevant standard of care if they intend
to proceed under this theory. Unlike plaintiffs’ allegations concerning the injury to R.K.’s scalp,
there is no basis for the Court to view the allegations concerning Dr. Myers’ failure to timely
diagnose R.K.’s heart complication as actionable under a res ipsa loquitor theory, and plaintiffs will
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be required to introduce expert testimony to prevail under such a theory. Plaintiffs are cautioned
that the Court is not making a definitive ruling as to whether they will be permitted to proceed
without an expert on their res ipsa loquitor allegations, because Oklahoma law is “well settled that
in all but the most extraordinary medical malpractice case [ ] the plaintiff has the burden of
producing expert testimony to support a prima facie case of negligence.” Roberson v. Jeffrey M.
Waltner, M.D., Inc., 108 P.3d 567 (Okla. Civ. App. 2005). The Oklahoma Supreme Court has stated
that “the nature of a res ipsa loquitor claim often negates the necessity of expert testimony to prove
the cause,” but plaintiffs overstate Oklahoma law to the extent that they suggest that they will
automatically be exempt from the requirement to present expert testimony based only on their
allegations of res ipsa loquitor. Zeier v. Zimmer, Inc., 152 P.3d 861, 868 (Okla. 2006). Under the
circumstances, the Court finds that plaintiffs will have to provide an affidavit of merit, at least as
to their allegations as Dr. Myers’ failure to timely diagnose R.K.’s heart complication, and it is
preferable to require plaintiffs to submit an affidavit of merit concerning each theory of negligence
alleged in the complaint in the event that they are later required to obtain expert testimony in support
of their claims. The Court will grant plaintiffs an extension of time to consult a qualified expert and
obtain a written opinion, and the case will be dismissed without prejudice if plaintiffs fails to file
an affidavit of merit in support of their negligence claims.
IT IS THEREFORE ORDERED that Defendant United States of America’s Motion to
Dismiss Certain Claims and Losses for Failure to Exhaust Claims (Dkt. # 13) is denied.
IT IS FURTHER ORDERED that Defendant United States of America’s Motion to
Dismiss (Dkt. # 11) is granted insofar as plainitffs must file an affidavit of merit in support of their
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negligence claims no later than July 25, 2016, and the failure to file an affidavit of merit will result
in the dismissal of plaintiffs’ claims without prejudice to refiling.
DATED this 24th day of June, 2016.
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