Belton v. United States of America

Filing 41

ORDER AND OPINION finding as moot 8 Motion to Dismiss for Lack of Jurisdiction; granting 26 Motion to Dismiss for Lack of Jurisdiction. Signed by Honorable Margaret B Seymour on 7/19/2016.(mdea )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
David C. Belton,

)
)
Plaintiff,
)
)
v.
)
)
United States of America,
)
)
Defendant.
)
______________________________)

Civil Action No. 3:15-1456-MBS
ORDER AND OPINION

This matter is before the court on Defendant United States of America’s (“Defendant’s”)
Motion to Dismiss and Amended Motion to Dismiss the Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(1). ECF No. 8; ECF No. 26.
I. Background
On April 1, 2015, Plaintiff David C. Belton (“Plaintiff”) brought the within action
against Defendant pursuant to the Federal Tort Claims Act (“FTCA” or “the Act”), 28 U.S.C. §§
2671 et seq.. ECF No. 1 (Complaint). Plaintiff alleges he sustained injuries during surgery due
to medical malpractice by doctors at the Dorn VA Medical Center in Columbia, South Carolina.
See id. On June 2, 2015, Defendant filed a motion pursuant to Fed. R. Civ. P. 12(b)(1) to dismiss
the Complaint for lack of jurisdiction. ECF No. 8. Defendant argued that Plaintiff failed to
bring claims against an employee of the United States. Id. On June 25, 2015, Plaintiff filed an
Amended Complaint seeking to cure the jurisdictional defect. ECF No. 11. In response,
Defendant argued that the Amended Complaint did not establish subject matter jurisdiction
because (1) the Amended Complaint did not allege that Plaintiff suffered injury caused by an
employee of the United States; and (2) prior to this action, Plaintiff’s Form SF95, which was
submitted as part of the administrative claim process, did not provide adequate notice to the
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Department of Veterans Affairs (“VA”) about the claims in the Amended Complaint. ECF No.
12. On July 24, 2015, the court issued an Opinion and Order denying the Motion to Amend as
futile and granting the Motion to Dismiss for lack of subject matter jurisdiction. ECF No. 14.
The court found dispositive the issue of injury caused by an employee of the United States;
therefore, the court did not address the adequacy of the notice provided Defendant. Id.
On August 10, 2015, Plaintiff filed a Motion for Reconsideration pursuant to Fed. R. Civ.
P. 59(e), arguing that the court “misread and misapprehended the plaintiff’s Proposed Amended
Complaint and erred in denying the plaintiff’s motion to amend.” ECF No. 16. After considering
the arguments of the parties, the court concluded that Plaintiff’s proposed Amended Complaint
alleged injuries caused by employees of the United States; therefore, the court reconsidered its
ruling, granted Plaintiff’s Motion to Amend the Complaint, and vacated its Opinion and Order
granting Defendant’s Motion to Dismiss. ECF No. 20. The court held the Motion to Dismiss in
abeyance pending a limited discovery period designed to allow the parties to assess the scope of
the VA’s internal investigation and whether Plaintiff’s Form SF95 provided adequate notice to
Defendant. Id.
On November 16, 2015, Plaintiff filed its Amended Complaint alleging three informed
consent claims and a fourth claim as follows:
9.
That the VA deviated from the standard of care in its
treatment of the plaintiff and was negligent and reckless in the care
and treatment in the following particulars:
a.
In failing to disclose that a risk of the ablation procedure
including the risk that the plaintiff could suffer a paralyzed
diaphragm;
b.
In failing to obtain a valid informed consent from the
plaintiff;
c.
In failing to tell the plaintiff anything about Dr. Savoca or
his training, experience and qualifications; and
d.
In failing to promptly diagnose and commence proper
treatment of the plaintiff’s paralyzed diaphragm and in
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exposing the plaintiff to unnecessary and useless medical
care for some six months until a correct diagnosis was
made by the VA doctors.
ECF No. 24 at ¶ 9.
On December 18, 2015, Defendant filed an Amended Motion to Dismiss for Lack of
Jurisdiction. ECF No. 26. Defendant argued that the Form SF95 did not provide adequate notice
for the informed consent claims (ECF No. 24 at ¶9a-c) presented in the Amended Complaint. Id.
On January 7, 2016, Plaintiff responded by alleging that Defendant did not provide information
about the adequacy of notice and Defendant failed to fully participate in the period of limited
discovery. ECF No. 27. At a hearing on March 21, 2016, the court held the Amended Motion to
Dismiss in abeyance and ordered Defendant to respond to Plaintiff’s interrogatories. ECF No. 31.
On May 6, 2016, Plaintiff submitted a supplement to the Amended Motion to Dismiss, notifying
the court that Plaintiff was withdrawing his lack of informed consent claims. ECF No. 34.
On June 14, 2016, the court issued a text order instructing the parties to submit
supplemental briefing addressing the scope of the VA’s investigation and whether Plaintiff’s
Form SF95 provided adequate notice to Defendant. ECF No. 37. On June 22, 2016, Defendant
responded with a detailed argument informing the court that the Form SF95 did not provide
adequate notice for the informed consent claims presented in Plaintiff’s Amended Complaint.
ECF No. 38. By response filed on July 1, 2016, Plaintiff reiterated that he had withdrawn all of
his informed consent claims. Plaintiff noted that Defendant did not argue that the allegations in
the Form SF95 were insufficient notice as to Plaintiff’s remaining claim against Defendant for
failing to promptly diagnose and commence treatment of Plaintiff’s paralyzed diaphragm and
exposing Plaintiff to unnecessary and useless medical care. ECF No. 39. On July 11, 2016,
Defendant replied that the Form SF95 did not provide notice of any other claim. ECF No. 40.

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II. Legal Standard
A. Legal Standard for Rule 12(b)(1) Motion to Dismiss
Defendant moves under Fed. R. Civ. P. 12(b)(1) to dismiss the complaint for lack of subject
matter jurisdiction. Federal courts are not courts of general jurisdiction; they have only the
power that is authorized by Article III of the Constitution and the statutes enacted by Congress.
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). A district court should
dismiss a complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) if the
complaint fails to allege facts upon which subject matter jurisdiction can be based or if the
jurisdictional allegations in the complaint are not true. Kerns v. United States, 585 F.3d 187, 192
(4th Cir. 2009). The burden of proving subject matter jurisdiction in response to a Rule 12(b)(1)
motion to dismiss is on the plaintiff, the party asserting jurisdiction. Williams v. United States, 50
F.3d 299, 304 (4th Cir. 1995). “In determining whether jurisdiction exists, the district court is to
regard the pleadings’ allegations as mere evidence on the issue, and may consider evidence
outside the pleadings without converting the proceeding to one for summary judgment.”
Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
1991).
B. Legal Standard for the FTCA Immunity
The FTCA waives the sovereign immunity of the United States with respect to tort
claims, rendering the United States “liable . . . in the same manner and to the same extent as a
private individual under like circumstances.” 28 U.S.C. § 2674. The Act, however, waives the
immunity of the United States only for torts committed by employees of the United States and
expressly excludes “any contractor with the United States” from inclusion in the immunity
waiver. 28 U.S.C. § 2671. Before bringing a claim against the United States for a tort committed

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by one of its employees, a Plaintiff is required to “first present[ ] the claim to the appropriate
Federal agency” and receive from the agency a denial of the claim in writing. 28 U.S.C. §
2675(a).
“[Section] 2675(a) is jurisdictional in nature and cannot be waived. However, while
section 2675(a) establishes the jurisdictional limitation of the FTCA, federal regulations outline
certain criteria for filing claims under the FTCA.” Dawson ex rel. Estate of Dawson v. United
States, 333 F. Supp. 2d 488, 494 (D.S.C. 2004). “The majority view is that an administrative
claim conforms to these criteria so long as it provides written notice sufficient to enable the
relevant agency to investigate the claim and respond either by settlement or by defense.” Id.
“[N]otice must do more than cause the government to sift through the record. Rather, notice must
be sufficiently detailed so that the United States can evaluate its exposure as far as liability is
concerned. Therefore, in addition to requiring a sum certain, a claimant must also provide a
sufficient factual predicate so that his claim can be investigated.” Richland-Lexington Airport
Dist. v. Atlas Properties, Inc., 854 F. Supp. 400, 412 (D.S.C. 1994) (citations and quotations
omitted).
III. Discussion
Plaintiff was required to file with the administrative agency “(1) a written statement
sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a
sum certain damages claim.” See Ahmed v. United States, 30 F.3d 514, 517 (4th Cir. 1994)
(citation omitted). Here, Plaintiff’s Form SF95 reads as follows, verbatim:
The VA discovered I had a spot on my liver. Dr. Gueogui
Mouratiev, my Doctor at the VA, recommended that I have the
spot ablated and the VA arranged for the ablation to be done at
Palmetto Health Richland. On information and belief, the ablation
was performed by Stephanie S. King. Upon information and belief,
Dr. King, in performing the ablation, burned through my liver and
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injured my right diaphragm, causing me to suffer a paralyzed
diaphragm on my right. Since her ablation, I have suffered much
with respiratory problems.
ECF No. 38-1.
Defendant contends that the allegations in the Form SF95 do not align with those in the
Proposed Amended Complaint, and that this is grounds to find lack of jurisdiction. At length
Defendant has argued that the Form SF95 did not provide notice about the now dismissed
informed consent claims. As for the remaining claim for failing to promptly diagnose and
commence treatment of Plaintiff’s paralyzed diaphragm and exposing Plaintiff to unnecessary
and useless medical care, Defendant holds that the Form SF95 did not provide “any notice of any
other claim” and the VA’s investigation “determined said claims to be insufficient.” ECF No. 40
at 1. Defendant attached the declaration of Melinda Perritano, former regional counsel of the
VA, to highlight that after the “investigation of and [her] review of Mr. Belton’s claim (SF 95),
[she] did not find that at any time he raised issues as to [the] VA’s care or actions such as
informed consent or delay in diagnosis of his paralyzed diaphragm.” ECF No. 40-2 at 2.
Plaintiff counters that Defendant has not made a successful argument as to why the Form
SF95 was insufficient to allow the VA to evaluate its liability for the claim presented in
paragraph 9(d) of the Amended Complaint. ECF No. 38. Plaintiff argues that Defendant has not
offered sufficient evidence as to what the VA did in evaluating the administrative claim. Id.
The court disagrees. Having considered the Form SF95, the arguments and statements of
counsel, and the declaration of Melinda Perritano about the scope of the VA’s internal
investigation, it appears to the court that the VA did not receive sufficient notice to investigate
whether it would be liable for the claim presented in paragraph 9(d) of the Amended Complaint.
Plaintiff’s Form SF95 detailed Plaintiff’s initial consultation at the VA, his transfer to the care of

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Dr. King, and Dr. King’s treatment of Plaintiff. Plaintiff’s Form SF95 neither discusses whether
the VA failed to promptly diagnose and commence treatment of Plaintiff nor does it alert the VA
that Plaintiff may seek to recover under the theory that VA doctors exposed him to unnecessary
or useless medical care. Therefore, the court must dismiss this action.
IV. Conclusion
For the reasons stated herein, Defendant’s Amended Motion to Dismiss for Lack of
Subject Matter Jurisdiction Motion, ECF No. 26, is GRANTED. Defendant’s Motion to Dismiss
for Lack of Jurisdiction, ECF No. 8, is DENIED as Moot.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Margaret B. Seymour
Senior United States District Judge
Columbia, SC
Dated: July 19, 2016

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