Williams v. United States Department of Health and Human Services et al

Filing 27

ORDER granting in part and denying in part 7 Motion to Dismiss; granting in part and denying in part 9 Motion to Dismiss. Plaintiff shall file her amended complaint within 14 days. Signed by Honorable Timothy D. DeGiusti on 3/31/2017. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ANGREA WILLIAMS,
Plaintiff,
v.
UNITED STATES OF AMERICA,
VIANMAR G. PASCUAL, M.D., and
LAWTON INDIAN HOSPITAL,
Defendants.

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Case No. CIV-16-139-D

ORDER
Before the Court are motions to dismiss filed by Defendant United States of
America [Doc. No. 7] and Defendant Lawton Indian Hospital [Doc. No. 9]. Plaintiff
Angrea Williams has responded to both motions [Doc. Nos. 10, 14] and Defendants
have replied [Doc. Nos. 13, 19]. The matter is fully briefed and at issue.1
BACKGROUND
This matter stems from Plaintiff’s allegations of negligent care and treatment
by Dr. Vianmar Pascual at the Lawton Indian Hospital (LIH). The following facts
are taken from the Complaint and viewed in the light most favorable to Plaintiff. Ute
Indian Tribe of the Uintah v. Myton, 835 F.3d 1255, 1261 (10th Cir. 2016). Plaintiff
was admitted to LIH for a planned laparoscopic cholecystectomy (removal of the

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Plaintiff also submitted a supplemental response to the United States’ motion to
dismiss [Doc. No. 25], to which the United States replied [Doc. No. 26].

gall bladder). After her discharge, she returned to LIH with complaints of severe
upper abdominal pain. Plaintiff was diagnosed with a possible duct injury and
released. Plaintiff, however, continued to experience severe abdominal pain and
went to the emergency room at Comanche County Memorial Hospital. A scan
revealed that she had free fluid in her abdomen and elevated bilirubin levels of 4.7.
Plaintiff was admitted to the hospital, where it was discovered she had sustained
injuries to her biliary tree (liver, gall bladder, and bile ducts). She is now a candidate
for a liver transplant.
Plaintiff alleges the surgery perforated her ducts, which caused gross
contamination of her abdominal cavity and liver. Plaintiff alleges Defendants were
negligent in that: (1) Defendants failed to provide and/or maintain adequate
facilities, equipment and procedures; (2) Defendants failed to exercise their
responsibility to obtain consent and exercise due care to prevent Plaintiff’s
permanent injuries; and (3) Defendants’ treatment fell below the applicable
standards of care. Plaintiff also contends the doctrine of res ipsa loquitur is
applicable to her allegations. For relief, Plaintiff asserts claims for pain and
suffering, mental anguish, loss of earnings, permanent impairment, reasonable
expenses of necessary medical care, and all other damages available under law.
The United States contends Plaintiff’s Complaint should be dismissed for four
reasons: (1) Plaintiff has failed to state a plausible claim for negligence; (2) Plaintiff
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did not attach an “affidavit of merit” to her Complaint, as required under Oklahoma
law; (3) insufficient service of process; and (4) failure to exhaust administrative
remedies. LIH contends the Complaint should be dismissed because (1) it has
sovereign immunity and (2) Plaintiff failed to attach the aforementioned “affidavit
of merit” to her Complaint.
STANDARD OF DECISION
“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
The “plausibility” standard announced in Twombly and Iqbal is not considered a
“heightened” standard of pleading, but rather a “refined standard,” which the Tenth
Circuit has defined as “refer[ring] to the scope of the allegations in a complaint: if
they are so general that they encompass a wide swath of conduct, much of it
innocent, then the plaintiffs have not nudged their claims across the line from
conceivable to plausible.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th
Cir. 2012) (citing Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th
Cir. 2011); Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).
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The Tenth Circuit has further noted that “[t]he nature and specificity of the
allegations required to state a plausible claim will vary based on context.” See id.
(quoting Robbins, 519 F.3d at 1248). “Thus, [it has] concluded the Twombly/Iqbal
standard is ‘a middle ground between heightened fact pleading, which is expressly
rejected, and allowing complaints that are no more than labels and conclusions or a
formulaic recitation of the elements of a cause of action, which the Court stated will
not do.’ ” Id. (quoting Robbins, 519 F.3d at 1247). Accordingly, in deciding
Twombly and Iqbal, there remains no indication the Supreme Court “intended a
return to the more stringent pre-Rule 8 pleading requirements.” Khalik, 671 F.3d at
1191 (citing Iqbal, 556 U.S. at 678). It remains true that “[s]pecific facts are not
necessary; the statement need only ‘give the defendant fair notice of what the ...
claim is and the grounds upon which it rests.’ ” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (quoting Twombly, 550 U.S. at 555); see also al–Kidd v. Ashcroft, 580 F.3d
949, 977 (9th Cir. 2009) (“Twombly and Iqbal do not require that the complaint
include all facts necessary to carry the plaintiff’s burden.”). Lastly, “[w]hile the
12(b)(6) standard does not require that Plaintiff establish a prima facie case in her
complaint, the elements of each alleged cause of action help to determine whether
Plaintiff has set forth a plausible claim.” Khalik, 671 F.3d at 1191 (citing
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002)).

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Where dismissal is granted for failure to state a claim, the Court should grant
leave to amend freely “if it appears at all possible that the plaintiff can correct the
defect.” Triplett v. Leflore County, Okla., 712 F.2d 444, 446 (10th Cir. 1983). Leave
to amend is not automatic and may be properly denied where an amendment would
be futile. Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir. 2004). “A court
properly may deny a motion for leave to amend as futile when the proposed amended
complaint would be subject to dismissal for any reason, including that the
amendment would not survive a motion for summary judgment.” E.SPIRE
Commc’ns, Inc. v. N.M. Pub. Regulation Comm’n, 392 F.3d 1204, 1211 (10th Cir.
2004) (internal quotation marks omitted).
A motion to dismiss for lack of subject matter jurisdiction generally attacks
the complaint’s allegations in one of two ways: a facial attack or a factual attack.
Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995) (citation omitted). A facial
attack questions the sufficiency of the complaint’s allegations, and a factual attack
questions the facts used to support the complaint’s allegations. Id. at 1002-03. Here,
LIH has made a facial attack in that it contends Plaintiff has wrongfully named it a
defendant to this action and that the only proper defendant is the United States.

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DISCUSSION
I.

SOVEREIGN IMMUNITY
Sovereign immunity is ordinarily a threshold jurisdictional issue that affects a

court’s authority to hear the merits of a case. Starkey ex rel. A.B. v. Boulder County
Social Services, 569 U.S. 1244, 1259-60 (10th Cir. 2009). Accordingly, the Court
addresses this issue first. “The concept of sovereign immunity means that the United
States cannot be sued without its consent.” Iowa Tribe of Kansas and Nebraska v.
Salazar, 607 F.3d 1225, 1232 (10th Cir. 2010) (quoting Merrill Lynch, Pierce,
Fenner & Smith, Inc. v. Jacks, 960 F.2d 911, 913 (10th Cir. 1992)). Courts lack
subject matter jurisdiction over a claim against the United States where sovereign
immunity has not been waived. Id. “Consequently, plaintiffs may not proceed unless
they can establish that the United States has waived its sovereign immunity with
respect to their claim.” Id. (citations omitted).
The Federal Tort Claims Act (FTCA or the Act) is a limited waiver of
sovereign immunity, making the federal government liable to the same extent as a
private party for certain torts of federal employees acting in the scope of their
employment. See 28 U.S.C. § 1346(b); United States v. Orleans, 425 U.S. 807, 813
(1976); Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852 (10th
Cir. 2005). To this end, “[t]he United States is the only proper defendant in an FTCA
action.” Smith v. United States, 561 F.3d 1090, 1099 (10th Cir. 2009) (quoting
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Oxendine v. Kaplan, 241 F.3d 1272, 1275 n. 4 (10th Cir. 2001)); Hernandez v.
United States, 34 F. Supp. 3d 1168, 1176 (D. Colo. 2014) (“Congress has explicitly
provided that the only proper party in an action under the FTCA is the United
States[.]”) (citations omitted).
Plaintiff concedes her action should only be against the United States and has
requested leave to amend her complaint to assert her claim only against the United
States ex rel. the United States Department of Health and Human Services. LIH’s
motion on this issue is granted, as it and Dr. Pascual are not proper parties under the
FTCA.
II.

ADMINISTRATIVE EXHAUSTION
“[A]s a prerequisite to suit under the [FTCA,] ... the claim [must] first be

presented to the appropriate federal agency and be finally denied by the agency. This
requirement is jurisdictional and cannot be waived.” Three-M Enterprises, Inc. v.
United States, 548 F.2d 293, 294 (10th Cir. 1977). As with sovereign immunity,
subject matter jurisdiction is a threshold consideration. Farmer v. Banco Popular of
North America, 791 F.3d 1246, 1254 (10th Cir. 2015).
The United States contends Plaintiff did not exhaust her administrative
remedies for any theory of liability other than Dr. Pascual’s alleged negligence. In
order to provide adequate notice to the appropriate agency under the FTCA, a
claimant must file “(1) a written statement sufficiently describing the injury to enable
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the agency to begin its own investigation, and (2) a sum certain damages claim.”
Bradley v. United States ex rel. Veterans Admin., 951 F.2d 268, 270 (10th Cir. 1991);
see also Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852 (10th
Cir. 2005). This notice provision merely requires that a claimant provide minimal
notice that gives the agency written notice of her claim sufficient to enable it to
investigate and place a value on the claim. Byrne v. United States, 804 F.Supp. 577,
581 (S.D.N.Y. 1992).
The Court finds Plaintiff’s administrative claim provided adequate, minimal
notice to investigate the circumstances of her alleged injuries. “[T]he FTCA only
imposes on claimants the burden of providing notice, not the burden of
substantiating claims.” Tookes v. United States, 811 F. Supp. 2d 322, 331 (D.D.C.
2011) (citing GAF Corp. v. United States, 818 F.2d 901, 921-22 (D.C. Cir. 1987)).
“The claimant need not even provide explicit notice to the government of all theories
of liability underlying a claim, so long as the government’s investigation of one
claim revealed, or a reasonably prudent investigation would have revealed, other
theories of liability.” Id. (citing Rise v. United States, 630 F.2d 1068, 1071 (5th Cir.
1980)).2

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See also Sovulj v. United States, No. 98-CV-5550, 2003 WL 21524835, at *2
(E.D.N.Y. July 2, 2003) (“Although general statements of liability will not suffice
to give notice, the weight of authority holds that the notice requirement should be
interpreted leniently and that the information included in the notice need not be
extensive.”) (internal citations omitted).
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Plaintiff’s administrative claim alleges her surgery was negligently performed
and provides the approximate dates of treatment. Moreover, the allegations set forth
in Plaintiff’s notice and her Complaint are consistent. In the Court’s view, the
administrative claim contained enough factual detail to conduct an investigation and
make a determination as to the merits of Plaintiff’s claim. Accordingly, on this issue,
the United States’ Motion to Dismiss is denied.
III.

NEGLIGENCE
For substantially the same reasons set forth above, the Court finds Plaintiff

has stated a plausible claim for negligence. Oklahoma law3 requires Plaintiff to
establish proof of the following three elements to support a claim of medical
negligence: (1) a duty owed by the defendant to protect the plaintiff from injury, (2)
a failure to properly exercise or perform that duty and (3) plaintiff’s injuries
proximately caused by the defendant’s failure to exercise the required duty of care.
Nelson v. Enid Medical Associates, Inc., 2016 OK 69, ¶ 8, 376 P.3d 212, 216.4
Plaintiff’s Complaint alleges that she was admitted to LIH to have her gall bladder
removed, and in the course of treatment, her ducts were perforated, resulting in gross

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Under the FTCA, the legal issues are to be decided in accordance with the place
where the acts or omissions giving rise to the claim occurred, here, Oklahoma. See
28 U.S.C. § 1346(b)(1); Trentadue, 397 F.3d at 862.
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The Nelson court noted that the elements of a negligence claim and medical
malpractice claim were identical.
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contamination of her abdominal cavity and liver. As noted above, even in this post
Twombly/Iqbal era, it remains true that “[s]pecific facts are not necessary; the
statement need only ‘give the defendant fair notice of what the ... claim is and the
grounds upon which it rests.’ ” Erickson v. Pardus, 551 U.S. 89, 93 (2007). The
Court finds that Plaintiff’s allegations provided fair notice of her negligence claim
and the supporting facts. The United States’ motion on this ground is denied.5
IV.

AFFIDAVIT OF MERIT
Defendants contend that Plaintiff’s Complaint should be dismissed, as she had

not obtained an “affidavit of merit” prior to filing her lawsuit. Plaintiff initially
responded to Defendants’ motion by contending § 19.1 was unconstitutional.
However, Plaintiff has since obtained an affidavit which she contends complies with
§ 19.1. See Doc. No. 25. Plaintiff contends this renders Defendants’ motions moot
on this issue. However, the sufficiency of Plaintiff’s Complaint is determined by its
allegations at the time of filing, and Plaintiff’s post-filing inclusion of the affidavit

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Although the Court denies Defendant’s motion on this issue, it must be noted that
Plaintiff’s reliance on the doctrine of res ipsa loquitur is insufficient to state a claim,
since the doctrine is not a separate tort or cause of action, but an evidentiary doctrine.
See Wheeler v. Koch Gathering Systems, Inc., 131 F.3d 898, 903 (10th Cir. 1997);
Martinez v. CO2 Services, Inc., 12 F. App’x 689, 692 n. 2 (10th Cir. 2001).
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has no bearing on the sufficiency of her Complaint. Plaintiff, however, will be
permitted to submit an amended complaint accompanied by her affidavit.6
V.

SERVICE OF PROCESS
Rule 4(i) of the Federal Rules of Civil Procedure provides:
(1)

United States. To serve the United States, a party must:

(A)(i) deliver a copy of the summons and of the complaint to the United
States attorney for the district where the action is brought - or to an
assistant United States attorney or clerical employee whom the United
States attorney designates in a writing filed with the court clerk - or
(ii)
(B)
(C)

send a copy of each by registered or certified mail to the
civil-process clerk at the United States attorney’s office;

send a copy of each by registered or certified mail to the Attorney
General of the United States at Washington, D.C.; and
if the action challenges an order of a nonparty agency or officer
of the United States, send a copy of each by registered or certified
mail to the agency or officer.

Id. Plaintiff did not comply with the requirement that she serve the United States.
She neither delivered a copy of the summons and complaint to the United States
Attorney for the Western District of Oklahoma, nor send a copy of each by registered
or certified mail to the civil-process clerk at the United States Attorney’s office.
Rather, Plaintiff served the Office of General Counsel for the Department of Health
and Human Services. Accordingly, the United States contends the Complaint should

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The Court makes no determination on the constitutionality of § 19.1, since Plaintiff
has implicitly abandoned her argument on this issue, as evidenced by her submission
of an affidavit of merit.
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be dismissed for insufficient service of process. Courts, however, have held Rule 4
“is a flexible rule that should be liberally construed so long as a party receives
sufficient notice of the complaint.” Sanderford v. Prudential Insurance Co., 902
F.2d 897, 900 (11th Cir. 1990) (quoting United Food & Commercial Workers Union
v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984)). The Court finds that the
defects in Plaintiff’s service of the complaint have not prejudiced Defendant (as
evidenced by its responsive pleadings) and are therefore harmless error.
CONCLUSION
Defendant United States’ Motion to Dismiss [Doc. No. 7] is GRANTED IN
PART and DENIED IN PART as set forth herein. Defendant Lawton Indian
Hospital’s Motion to Dismiss is GRANTED [Doc. No. 9] as set forth herein.
Plaintiff’s Complaint is dismissed without prejudice to refiling. Plaintiff shall file
her amended complaint within fourteen (14) days of this order.
IT IS SO ORDERED this 31st day of March, 2017.

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