Priest v. United States of America
Filing
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ORDER: For the reasons stated, the United States' Motion to Dismiss 11 is GRANTED and Plaintiff's Complaint is DISMISSED. It is so ORDERED. Signed by Senior Judge John T. Nixon on 10/20/11. (tmw)
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MICHAEL PRIEST,
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Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
No. 3:11-cv-00557
Judge Nixon
Magistrate Judge Knowles
ORDER
Pending before the Court is Defendant United States of America’s Motion to Dismiss
(“Motion”). (Doc. No. 11.) Plaintiff Michael Priest filed a Response in Opposition (Doc. No.
13), to which the United States filed a Reply (Doc. No. 17). For the reasons stated below, the
Motion is GRANTED and Plaintiff’s Complaint is DISMISSED.
I.
BACKGROUND1
Plaintiff underwent a colonoscopy procedure on or about June 9, 2008,2 at the Alvin C.
York Veteran Affairs Facility in Murfreesboro, Tennessee. On or about February 9, 2009, the
Department of Veteran Affairs (“VA”) sent form letters to approximately 6,387 veterans,
including Plaintiff. The letter indicated that from April 23, 2003, through December 1, 2008, all
colonoscopy procedures carried the risk of exposure to potentially deadly diseases, waste, and
bodily fluids. The possible exposure was caused by the use of an incorrect valve during
procedures, and the tubing attached to the endoscopic scope may not have been properly cleaned
between patients.
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All facts are taken from Plaintiff’s Complaint (Doc. No. 1) unless otherwise noted.
Plaintiff’s Complaint alleges that he underwent the procedure on October 4, 2006; however, Plaintiff has admitted
that the date was misstated in the Complaint and that the correct date is June 9, 2008 (Doc. No. 13 at 2).
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After receiving the VA’s letter, Plaintiff underwent blood tests to check for infection. On
March 13, 2009, a VA employee notified Plaintiff that he was infected with Hepatitis B and
HIV. Two weeks later, Plaintiff was informed that the results were incorrect.
Plaintiff timely filed an administrative claim with the VA on July 14, 2010. The VA
denied his claim on December 10, 2010. Plaintiff subsequently filed this suit pursuant to 28
U.S.C. § 2675 on June 10, 2011. Plaintiff alleges negligence, negligent infliction of emotional
distress, and res ipsa loquitur. The United States filed its Motion to Dismiss on July 29, 2011.
(Doc. No. 11.) Plaintiff filed a Response in Opposition on August 12, 2011 (Doc. No. 13), and
the United States filed a Reply on September 6, 2011 (Doc. No. 17).
II.
LEGAL STANDARD
The United States’ Motion to Dismiss seeks dismissal under Federal Rule of Civil
Procedure 12(b)(1) or, alternatively, under Rule 12(b)(6). A Rule 12(b)(1) motion to dismiss for
lack of subject-matter jurisdiction may be presented as a facial or factual challenge. Gentek
Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007) (citing Ohio Nat’l
Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 2007)). A facial attack challenges the
sufficiency of the pleading, and all allegations made by the plaintiff must be accepted as true. Id.
On the other hand, if the defendant brings a factual attack, the facts alleged in the complaint are
not presumed to be true. Id. A court “must weigh the conflicting evidence to arrive at the
factual predicate that subject-matter [jurisdiction] does or does not exist.” Id. The plaintiff bears
the ultimate burden of establishing subject-matter jurisdiction to survive a Rule 12(b)(1) motion.
Lewis v. Whirlpool Corp., 630 F.3d 484, 487 (6th Cir. 2011).
To withstand a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, a complaint
must allege “[e]nough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.
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v. Twombly, 550 U.S. 544, 570 (2007). The Supreme Court recently clarified the Twombly
standard, stating that “[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.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Plausibility requires
“[m]ore than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint that
pleads facts “‘[m]erely consistent with’ defendant’s liability . . . ‘stops short of the line between
possibility and plausibility’ of entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 546).
When ruling on a defendant’s motion to dismiss, the Court must “[c]onstrue the
complaint liberally in the Plaintiffs’ favor and accept as true all factual allegations and
permissible inferences therein.” Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir. 1994).
The Court must allow “[a] well-pleaded complaint [to] proceed even if it strikes a savvy judge
that actual proof of those facts is improbable.” Twombly, 550 U.S. at 556.
III.
ANALYSIS
A. The Federal Tort Claims Act
The Federal Tort Claims Act (FTCA) provides the exclusive remedy for recovery against
the United States for common law torts committed by federal employees acting within the scope
of their employment. The FTCA confers jurisdiction on district courts over civil actions for
injury caused by negligent or wrongful acts of Government employees acting within the scope of
their employment, under circumstances where the United States, if a private person, would be
liable. 28 U.S.C. § 1346(b)(1). The FTCA adopts the law of the state in which the alleged
tortious act or omission occurred. Id.; Friedman v. United States, 927 F.2d 259, 261 (6th Cir.
1991). The FTCA mandates that the United States shall be liable “in the same manner and to the
same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. Accordingly,
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there is no subject-matter jurisdiction over actions against the United States if, under like
circumstances, suit would not be permitted against a private individual. See Young v. United
States, 71 F.2d 1238, 1244 (6th Cir. 1995); Friedman, 927 F.2d at 261.
There exists within the FTCA an exception to the United States’ liability for discretionary
functions. 28 U.S.C. § 2680(a). Under the exception, the sovereign immunity of the United
States is not waived for claims “based upon the exercise or performance or the failure to perform
a discretionary function or duty on the part of a federal agency or an employee of the
Government, whether or not the discretion involved be abused.” Id. The Supreme Court has
developed a two-part test for determining whether the discretionary function except applies.
Edwards v. Tenn. Valley Auth., 255 F.3d 318, 322 (6th Cir. 2001) (citing United States v.
Gaubert, 499 U.S. 315, 322-23 (1991)). First, a court must determine whether the challenged act
or omission “‘violated a mandatory regulation or policy that allowed no judgment or choice.’”
Id. (quoting Rosebush v. United States, 119 F.3d 438, 441 (6th Cir. 1997)). If the action of the
Government is constrained by a mandatory regulation or policy, the discretionary function
exception does not apply because there was no element of judgment or choice. Id.
Once a court concludes that the allegedly tortious conduct involved judgment or choice, it
must “determine whether ‘the challenged conduct is of the kind that the discretionary function
exception was designed to shield.’” Id. at 324 (quoting Rosebush, 199 F.3d at 441). The Sixth
Circuit explained:
In enacting FTCA § 2680(a), Congress wished to prevent judicial ‘second
guessing’ of legislative and administrative decisions grounded in social,
economic, and political policy. Thus, where there is room for policy judgment
and decision, there is discretion of the sort protected by Section 2680(a).
Rosebush, 199 F.3d at 441 (internal quotations and citations omitted). The Sixth Circuit outlined
three types of decisions to which the discretionary function exception typically applies: (1) the
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proper response to hazards, (2) whether and how to make federal lands safe for visitors, and (3)
whether to warn of a potential danger. Id. at 443.
B. Discussion
Plaintiff’s claims relate to three interrelated but distinct events: his colonoscopy, his
receipt of the VA form letter, and his alleged misdiagnosis. The United States urges that the
discretionary function exception of the FTCA applies to Plaintiff’s claims as they relate to his
receipt of the VA form letter. (Doc. No. 12 at 11.) Judge Campbell, in ruling on a claim arising
out of the same facts as the instant case, found that the discretionary function exception applies
to the letter. Mayo v. United States, 785 F. Supp.2d 692, 697 (M.D. Tenn. 2011). Plaintiff does
not dispute the application of the discretionary function exception. (Doc. No. 13 at 1.) Plaintiff
therefore concedes that the Court does not have subject-matter jurisdiction over his FTCA claims
related to the letter, and they must be dismissed under Federal Rule of Civil Procedure 12(b)(1).
However, Plaintiff asserts that receiving the letter is “not the claim for which [he] seeks
compensation.” (Id.) Rather, Plaintiff states that his claims concern his alleged misdiagnosis of
Hepatitis B and HIV and his resulting emotional distress. (Id.) Plaintiff also discusses facts
alleging negligence in the administration of his colonoscopy. (Id. at 1-2.) The Court will
therefore address the United States’ arguments regarding those facts.
The United States argues that Plaintiff’s claim of negligence in performing the
colonoscopy “sounds in medical malpractice,” despite Plaintiff’s assertion in the Complaint that
he does not allege a medical malpractice claim. (Doc. No. 12 at 16.) The United States asserts
that, therefore, the Tennessee Medical Malpractice Act (TMMA) governs Plaintiff’s claim. (Id.
at 17.) The United States then concludes that the claim must fail because Plaintiff has not met
the TMMA’s requirement of including with the Complaint a certificate of good faith. (Id. at 20.)
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In Mayo, Judge Campbell agreed with the United States that the TMMA and the good faith
certificate requirement applies to negligence claims relating to the colonoscopies performed at
the VA facility during the identified time period. 785 F. Supp. 2d at 696. Plaintiff seems to
concede that the certificate of good faith requirement applies to his case, but argues that his case
falls within an exception to the requirement. (Doc. No. 13 at 5.)
Under the TMMA, the failure of a plaintiff to file a certificate of good faith that the
plaintiff or counsel has consulted with a competent medical expert renders a malpractice action
subject to dismissal with prejudice. Tenn. Code Ann. § 29-26-122(a),(c). The purpose of the
requirement is “to reduce the number of meritless claims which [a]re filed.” Howell v. Claiborne
& Hughes Health Ctr., No. M2009-01683-COA-R3-CV, 2010 WL 2539651, at *16 (Tenn. Ct.
App. June 24, 2010); see also Jenkins v. Marvel, 683 F. Supp. 2d 626, 639 (E.D. Tenn. 2010)
(“The [requirement] is designed to reduce the number of frivolous lawsuits filed in Tennessee
each year . . . by requiring early evaluation and streamlined disclosure of medical records.”).
However, a plaintiff can avoid dismissal with a showing that the omission was due to the failure
of the medical provider to timely provide records or a showing of extraordinary cause. Id.
Plaintiff argues that his failure to file a certificate is due to the VA’s failure to provide
information that would assist each patient in determining whether his colonscopy was preceded
by a procedure on an infected patient. (Doc. No. 13 at 5.) Plaintiff asserts that his inability to
obtain certain information from the VA has prevented him from securing an expert opinion on
the key facts. (Id. at 6.)
The Court finds scant law from Tennessee courts applying § 29-26-122(a) that is relevant
to the current case. In Mayo, Judge Campbell ruled that the plaintiff’s failure to file a certificate
of good faith precluded a medical malpractice claim for the potentially negligent colonoscopies.
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785 F. Supp. 2d at 697. Judge Campbell did not address whether the plaintiff had argued for an
exception to the requirement. Unlike Plaintiff, however, the plaintiff in Mayo had an existing,
documented infection that may have resulted from one of the compromised colonoscopies.
Judge Campbell nevertheless dismissed the claim, which emphasizes to the Court the importance
of the requisite certificate of good faith.
On the other hand, in another case from this District, Judge Trauger held that the
defendant’s failure to provide the plaintiff with full medical records excused the plaintiff from
filing a certificate. Truth v. Eskioglu, 781 F. Supp. 2d 630, 634 (M.D. Tenn. 2011). Judge
Trauger repeatedly emphasized, however, that the plaintiff had consulted with a doctor before
filing suit, and was only waiting in good faith for the defendant to produce the records. Id. at
635. The plaintiff filed an affidavit swearing to the consultation and to the doctor’s belief that
the malpractice claim was valid. Id. The affidavit was supported by a letter from the doctor
asserting that there existed strong evidence of malpractice but that the doctor was not willing to
write a good faith certificate until he was able to review the plaintiff’s entire medical record. Id.
Further, the plaintiff had submitted a written request for the records in compliance with the
statute with which the defendant had failed to comply. Id. at 634. Judge Trauger concluded that
the plaintiff had shown good cause for failing to file a certificate, and that the evidence indicated
the case was not the type of frivolous suit § 29-26-122(a) is intended to prevent. Id. at 635.
Even in light of this conclusion, however, Judge Trauger did not entirely excuse the requirement;
instead, she granted the plaintiff an extension to file a valid certificate of good faith. Id. at 63536.
The considerations on which Judge Trauger based her ruling are not present in the current
case. There is no evidence here that Plaintiff has consulted with an expert at all, nor is there
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“strong evidence” of malpractice. Plaintiff argues that the VA’s “failure to provide information
– who was exposed, when and the like” – preclude Plaintiff from obtaining an expert opinion.
The Court assumes that Plaintiff would want to know which patients who underwent
colonoscopy procedures were previously diagnosed with infectious diseases, and when their
procedures were administered. This information is protected by medical privacy laws, and
Plaintiff could not have reasonably expected the VA to release it to a third party. Further,
Plaintiff has not actually developed an infectious disease to date. There is insufficient evidence
for the Court to find that extraordinary circumstances excuse Plaintiff’s failure to file a good
faith certificate, or to conclude that this is not the kind of frivolous lawsuit that the good faith
certificate requirement was intended to prevent.
The same analysis applies to Plaintiff’s failure to file a good faith certificate relating to
his claims of an alleged misdiagnosis. Although the United States argues that Plaintiff was not,
in fact, conclusively misdiagnosed, the Court must construe all facts in Plaintiff’s favor at this
stage of litigation and assume that he was led to believe for two weeks that he had contracted
infectious diseases. However, Plaintiff has not even argued for the application of the TMMA’s
exceptions to the certificate requirement for the misdiagnosis. Contrary to the colonoscopy
procedures, the tests and their subsequent interpretation are relevant only to Plaintiff, and it
would not require obtaining other patient’s confidential medical records in order to consult with
an expert prior to filing suit. The Court assumes, and Plaintiff has not refuted, that Plaintiff
would be able to obtain his own relevant records related to the testing. Plaintiff has neither
offered any explanation for why he was unable to do so nor alleged that the VA has refused to
provide them. Accordingly, Plaintiff’s claims must be dismissed as they relate to his alleged
misdiagnosis for failure to comply with the TMMA.
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Finally, Plaintiff has conceded that § 29-26-122(a) applies to his claims, meaning expert
testimony will be required to prove his case. Plaintiff’s claim for res ipsa loquitur relating to his
allegedly negligent colonoscopy must therefore be dismissed as a matter of law. As Judge
Campbell explained in Mayo, courts have adopted a restricted view of res ipsa loquitur claims in
medical malpractice cases. 785 F. Supp. 2d at 696 (citing Seavers v. Methodist Med. Ctr. of Oak
Ridge, 9 S.W.3d 86, 92 (Tenn. 1999)). Plaintiffs may only rely on res ipsa “where the proof is
such that the jury can reasonably infer from common knowledge and experience that the
defendant was negligent.” Id. (citing Seavers, 9 S.W.3d at 92). Examples of such common
knowledge cases include objects left in a patient following surgery or injuries to a body part
during surgery on a separate body part. Id. at 696 n.3 (citing Seavers, 9 S.W.3d at 92). Judge
Campbell held that malpractice claims for the potentially-compromised colonoscopies do not fall
into the common-knowledge category of malpractice cases where res ipsa is appropriate. Id. at
696-97. The Court adopts that holding and reaches the same conclusion as to Plaintiff’s alleged
misdiagnosis. Accordingly, Plaintiff’s claim for res ipsa loquitur cannot stand.
IV.
CONCLUSION
For the reasons stated above, the United States’ Motion to Dismiss is GRANTED and
Plaintiff’s Complaint is DISMISSED.
It is so ORDERED.
Entered this the __19th_____ day of October, 2011.
________________________________
JOHN T. NIXON, SENIOR JUDGE
UNITED STATES DISTRICT COURT
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