Baxter, II v. Boente et al
Filing
33
MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 7/6/2016. (dvanm, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
JAMES O. BAXTER II,
Plaintiff,
v.
UNITED STATES,
Defendant.
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1:15-cv-00633 (JCC/IDD)
MEMORANDUM OPINION
Pro se Plaintiff James O. Baxter II brought this
Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq.,
action to remedy the allegedly negligent and constitutionally
deficient medical care he received while in custody at a federal
correctional facility.
The matter is currently before the Court
on the United States’1 motion to dismiss and motion for summary
judgment.
For the following reasons, the Court will dismiss
Plaintiff’s constitutional tort claims.
The Court will dismiss
Plaintiff’s negligence claim without prejudice, with leave to
1
The United States moved to substitute itself as the proper
party Defendant in place of U.S. Attorney General Loretta Lynch
and U.S. Attorney for the Eastern District of Virginia Dana
Boente. (See Mot. to Substitute [Dkt. 14].) Plaintiff did not
object to that substitution at the June 9, 2016 hearing.
Accordingly, the Court will grant the motion to substitute the
United States as the proper party defendant. Cf. Harris v.
United States, No. DKC 11-0916, 2012 WL 1067883, at *1 n.1 (D.
Md. Mar. 28, 2012); Saucedo-Gonzalez v. United States, No. 7:07cv-00073, 2007 WL 1034949, at *1 n.1 (W.D. Va. Apr. 3, 2007).
1
file an amended complaint within fourteen (14) days of entry of
the accompanying Order.
I.
Background2
Plaintiff James O. Baxter II (“Baxter” or “Plaintiff”)
was incarcerated at Federal Correctional Complex Petersburg
(“FCC Petersburg”) from August 2006 through November 2014.
During the term of his confinement, Baxter was a chronic care
patient who received regular medical treatments for
hypertension, genital herpes, and other afflictions.
Ex. D [Dkt. 1-4] at 1.3)
(See Pl.’s
Around December 2009, Baxter complained
to the FCC Petersburg medical staff that he was experiencing
pain in his genital region.
(Compl. ¶ 10.)
When the pain did
not subside, Baxter persistently requested to see an urologist.
(Compl. ¶ 11.)
During a consultation with an FCC Petersburg mid-level
practitioner (“MLP”)4 in March 2010, Baxter expressed concern
that he might have Peyronie’s Disease.
(Compl. ¶ 12.)
Peyronie’s Disease is associated with a build-up of plaque or
calcium deposits in the penile shaft, causing various degrees of
2
The Court liberally construes Baxter’s pro se complaint.
See Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir. 2013).
3
Citations to the record refer to the pagination assigned by
the Electronic Case Management system.
4
“A mid-level practitioner is a non-physician health-care
provider such as a nurse practitioner or physician’s assistant.”
Parker v. United States, 475 F. Supp. 2d. 594, 595 n.3 (E.D. Va.
2007).
2
curvature in the penis, accompanied by pain and discomfort.
(Pl.’s Ex. B [Dkt. 1-2] at 28.)
Without conducting a physical
examination, the MLP concluded that Baxter did not have
Peyronie’s Disease and that an urologist examination was not
required.
(Compl. ¶ 12.)
Baxter’s complaints of pain and requests for
examination by a specialist continued through 2010 and into
2011.
In August 2011, an MLP examined Baxter’s genital region
and concluded there was no “penile deformities” or other
physical indicators of Peyronie’s Disease.
1-4] at 1.)
(Pl.’s Ex. D [Dkt.
Nonetheless, the MLP submitted a request for Baxter
to see a specialist.
(Pl.’s Ex. D at 1.)
A month later, an
urologist named Dr. Bigley examined and diagnosed Baxter as
suffering from Peyronie’s Disease.
[Dkt. 1-1] at 15.)
(Compl. ¶ 13; Bigley Report
The specialist recommended that Baxter begin
taking Vitamin E and return for a check-up a month later.
(Bigley Report.)
After Dr. Bigley’s initial diagnosis, Baxter
repeatedly requested attention from a specialist to treat his
Peyronie’s Disease.
(Compl. ¶¶ 14-18.)
Dr. Bigley, however,
was no longer under contract with FCC Petersburg and Medical
Director Dr. Laybourn allegedly refused to allow Baxter to
receive treatment from an “outside” urologist.
(Compl. ¶ 15.)
Eventually FCC Petersburg obtained a new contract urologist, Dr.
3
Duck, whom Baxter visited in April 2012—eight months after Dr.
Bigley’s initial diagnosis.
(Pl.’s Ex. A [Dkt. 1-1] at 3.)
Dr.
Duck confirmed the presence of Peyronie’s Disease and requested
that Baxter contact him if the symptoms worsened.
(Id.)
Baxter persistently requested follow-up treatment for
two months until FCC Petersburg allowed Baxter to again see Dr.
Duck in June 2012.
(Compl. ¶¶ 16-18; Pl.’S Ex. B at 2, 24.)
During that consultation, Dr. Duck requested various
radiological imaging of Baxter’s genitals.
24.)
(Pl.’s Ex. B at 2,
The Utilization Review Committee (“URC”) granted that
request about two months later, permitting Baxter to travel to
an off-site facility to undergo the radiological imaging.
(Compl. ¶ 19; Pl.’s Ex. B at 2, 5, 24.)
Dr. Duck’s review of
the imaging in November 2012 revealed that no ultrasound of the
penile region was taken as initially requested.
20; Pl.’s Ex. A at 43.)
(Compl. ¶¶ 19-
Dr. Duck ordered that imaging, which
occurred five months later in April 2013.
(Compl. ¶ 25.)
In the interim, Baxter continued to request
treatment for pain, anxiety, and sleeplessness caused by his
Peyronie’s Disease.
In April 2013, Dr. Duck consulted Baxter
and advised that a new treatment involving injections of
“Collagenase” would be available in November 2013.
¶ 25.)
(Compl.
Baxter and Dr. Duck discussed the new treatment option
again in August 2013.
(Pl.’s Ex. B at 20.)
4
At that time, Dr.
Duck informed Baxter that the Collagenase injections were
expensive and posed the risk of “possible penile fracture.”
(Id.)
Dr. Duck’s report from the August 2013 consultation shows
that Baxter was “planning on Collagenase injections to start in
Nov.” and “also wants to try Vit. E. or Fish Oil.”
(Id.)
Baxter then made several requests to Dr. Laybourn and an MLP to
begin Collagenase treatment.
(Compl. ¶¶ 27-32.)
Dr. Laybourn,
however, did not submit the URC request for the injections until
February 2014, three months after Baxter desired to begin the
treatment.
(Compl. ¶ 32.)
The URC denied the request about a
week later after concluding that the Collagenase injections were
“considered as elective or not medically necessary at this
time.”
(Compl. ¶ 34; Pl.’s Ex. B at 18.)
Baxter alleges that
the URC reached this result because Dr. Laybourn misrepresented
Dr. Duck’s findings.
(Compl. ¶ 33.)
Baxter continued to request medical examination and
treatment for his Peyronie’s Disease from April 2014 onward.
(Compl. ¶¶ 36-46.)
Baxter received consultations from an MLP
and Dr. Laybourn, but was not permitted to see an urologist
again.
During an examination with an MLP in October 2014,
Baxter learned that medication he was prescribed for an
unrelated condition had a possible side-effect of contributing
to Peyronie’s Disease.
(Compl. ¶ 48.)
5
By that time, Baxter had
been taking the medication for three years without knowing of
the potential adverse side-effect.
(Compl. ¶ 48.)
Baxter was released from custody in November 2014.
(Compl. ¶ 47.)
He filed this lawsuit six months later, alleging
claims of medical malpractice/negligence, “deliberate
indifference,” and “equal protection,” all pursuant to the
Federal Tort Claims Act, 28 U.S.C. § 2671, et seq.
On April 12, 2016, the United States moved to be
substituted as the proper party defendant, to dismiss the
constitutional tort claims for lack of subject matter
jurisdiction, and to grant summary judgment with regards to the
claim of medical malpractice.5
(See Mem. in Supp. [Dkt. 16].)
Plaintiff responded to the motions on June 1, 2016, after
receiving an extension of time.
(See Mem. in Opp’n [Dkt. 28].)
Parties argued the motions before the Court on June 9, 2016.
The motions are now ripe for disposition.
II.
Standard of Review
Federal Rule of Civil Procedure 12(b)(1) permits a
party to move to dismiss an action for lack of subject matter
jurisdiction.
Allen v. Coll. of William & Mary, 245 F. Supp. 2d
777 (E.D. Va. 2003).
In deciding a motion made pursuant to Rule
12(b)(1), the court must ascertain whether “plaintiff’s
5
On the same day, the United States provided the notice
required by Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
[Dkt. 17.]
6
allegations standing alone and taken as true plead jurisdiction
and a meritorious cause of action.”
Allianz Ins. Co. v. Cho
Yang Shipping Co., Ltd., 131 F. Supp. 2d 787, 789 (E.D. Va.
2000).
The burden of establishing the existence of subject
matter jurisdiction rests upon the party invoking the court’s
authority.
Allen, 245 F. Supp. 2d. at 782.
Federal Rule of Civil Procedure 12(b)(6) allows a
court to dismiss allegations that fail “to state a claim upon
which relief can be granted.”
Fed. R. Civ. P. 12(b)(6).
A Rule
12(b)(6) motion tests the legal sufficiency of the complaint.
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008).
A
court reviewing a complaint on a Rule 12(b)(6) motion must
accept well-pleaded allegations as true and must construe
factual allegations in favor of the plaintiff.
See Randall v.
United States, 30 F.3d 518, 522 (4th Cir. 1994).
III.
Analysis
Plaintiff’s first FTCA count alleges that Defendant
committed medical malpractice by failing to diagnose and
appropriately treat his Peyronie’s Disease while he was a
prisoner at FCC Petersburg.
determined by state law.
Liability under the FTCA is
See 28 U.S.C. § 2674.
The Virginia
Medical Malpractice Act (“VMMA”) provides the relevant standards
in this case because the medical malpractice complained of
occurred in Virginia.
See 28 U.S.C. § 1346(b)(2); Starns v.
7
United States, 923 F.2d 34, 37 (4th Cir. 1991).
Accordingly,
the Court must consider whether Plaintiff has complied with the
VMMA’s certification requirement.
See Sowers v. United States,
141 F. Supp. 3d 471, 476 (E.D. Va. 2015) (citing cases applying
VMMA certification requirement to FTCA medical malpractice
actions).
Under the VMMA, a plaintiff’s filing of a medical
malpractice complaint certifies that he has obtained a written
opinion from an expert witness that “based upon a reasonable
understanding of the facts, the defendant for whom service of
process has been requested deviated from the applicable standard
of care and the deviation was the proximate cause of the
injuries claimed.”
Va. Code Ann. § 8.01-20.1.
This
certification, however, is not required if “the plaintiff, in
good faith, alleges a medical malpractice action that asserts a
theory of liability where expert testimony is unnecessary
because the alleged act of negligence clearly lies within the
range of the jury’s common knowledge and experience.”
Id.
If
the plaintiff files a complaint without complying with the
expert certification requirement, the court “may dismiss the
case with prejudice.”
Id.
In this case, it is uncontested that Plaintiff did not
obtain the required expert opinion prior to requesting service
8
of process upon Defendant.6
Defendant contends that the Court
should grant summary judgment because of this deficiency.
Plaintiff rebuts that an expert certification was not required
because the negligence he alleges clearly lies within the range
of the jury’s common knowledge and experience.
As described
below, the Court concludes that expert certification was
required prior to requesting service of process.
As an initial matter, the Court must clarify the
nature of this motion.
Defendant styles its motion as one for
summary judgment, but requests that the Court dismiss the
Complaint.
The Court will treat the motion as a motion to
dismiss because the analysis does not require the review of any
extraneous documents and is concerned only with the sufficiency
of the Complaint.
Cf. United Roasters Inc. v. Colgate-Palmolive
Co., 485 F. Supp. 1041, 1043 (E.D.N.C. 1979) (“[A] court may
treat a motion for summary judgment as a motion to dismiss when
it is concerned only with the sufficiency of the allegations
within a count and not with factual material.”).
This standard
of review is appropriate here because it is uncontested that
Plaintiff did not timely obtain a certification and because the
6
Over a year after filing suit, Baxter did obtain an opinion
from Dr. Victor E. Henry that “based on a reasonable
understanding of the facts, there was a deviation of care which
may be the cause of present pain and discomfort.” (See Letter
[Dkt. 28-1] at 20.) At oral argument Plaintiff represented that
he has obtained a letter to the same effect from a second
doctor.
9
applicability of the common-knowledge exception depends on the
plaintiff’s good-faith allegations.
See Va. Code Ann. § 8.01-
20.1; see also James v. United States, No. 3:14-cv-827, 2016 WL
1060251, at *1 (E.D. Va. Mar. 10 2016) (addressing VMMA
certification challenge through motion to dismiss); Sowers, 141
F. Supp. 3d 471 (same).
The Court turns now to Plaintiff’s argument that an
expert opinion was not required because his case falls into the
exception for negligence that “clearly lies within the range of
the jury’s common knowledge and experience.”
applies only in “rare instances.”
This exception
Beverly Enters.-Va., Inc. v.
Nichols, 441 S.E.2d 1, 3 (Va. 1994).
Expert testimony is not
required to show medical negligence, for example, when a doctor
leaves a foreign object in a patient’s body, Easterling v.
Walton, 156 S.E.2d 787, 791 (Va. 1967), or when an at-risk
patient falls or chokes after being left unattended, Beverly,
411 S.E.2d at 3-4; Jefferson Hospital, Inc. v. Van Lear, 41
S.E.2d. 441 (Va. 1947).
Allegations that call into question a
“quintessential professional medical judgment,” by contrast,
“can be resolved only by reference to expert opinion testimony.”
Parker v. United States, 475 F. Supp. 2d. 594, 597 (E.D. Va.
2007) (quoting Callahan v. Cho, 437 F. Supp. 2d. 557, 563 (E.D.
Va. 2006)).
10
The above principles persuasively demonstrate that
Baxter cannot avoid the certification requirement.
Baxter
alleges that the FCC Petersburg medical staff breached their
standard of care by failing to initially diagnose his Peyronie’s
Disease, providing delayed and inadequate treatment after
diagnosis, and deviating from the specialist’s treatment
recommendations.
Breaches of the standard of care arising from
failures to diagnose and treat illnesses fall squarely within
the class of cases that require expert testimony.
See Parker,
475 F. Supp. 2d at 597-98 (requiring expert in failure to
diagnose and treat neurological impairment); Bond v. United
States, No. 1:08-cv-324, 2008 WL 4774004 (E.D. Va. Oct. 27,
2008) (requiring expert when prison delayed for two months in
treating a prisoner’s diagnosed torn tendon).
In addition to
the general nature of Baxter’s theory of liability, several
complicating factors remove this case from the purview of the
lay juror, including the relative obscurity of Peyronie’s
Disease, Baxter’s suffering of another genital disease with
symptoms overlapping those of Peyronie’s Disease, the effect of
the different medications Baxter received during his treatment,
and the arrival of a new treatment with potentially severe sideeffects.
In light of those complicating factors, expert
testimony would be required to determine whether the FCC
11
Petersburg medical staff breached the applicable standard of
care for diagnosing and treating Peyronie’s Disease.
Furthermore, expert testimony is required to
demonstrate that any alleged breach proximately caused Baxter’s
injuries.
See Parker, 475 F. Supp. 2d at 598 (interpreting VMMA
to require expert certification of proximate cause).
The
relevant injury in a misdiagnosis and failure-to-treat case is
“the development of the problem into a more serious condition
which poses greater danger to the patient or which requires more
extensive treatment,” not the existence of the original disease.
St. George v. Pariser, 484 S.E.2d 888, 891 (Va. 1997).
Even if
FCC Petersburg’s delay and failure to treat were negligent,
expert testimony is required to establish that those breaches
proximately caused Baxter’s condition to worsen, as described
above.
Speculation or conjecture will not suffice.
Parker, 475
F. Supp. 2d at 598 (quoting Fitzgerald v. Manning, 679 F.2d 341,
349 (4th Cir. 1982)).
A juror’s common knowledge does not
include the rate or cause of progression of Peyronie’s Disease,
especially when complicated with the factors discussed above.
Thus, without expert testimony, a jury would need to resort to
impermissible speculation to conclude that any of the negligence
alleged proximately caused Baxter’s condition to worsen.
In summary, Baxter’s case does not fall into the
exception for negligence that is clearly within the range of the
12
jury’s common knowledge and experience.
Accordingly, Baxter was
required to obtain an expert certification regarding Defendant’s
alleged breaches of the standard of care and proximate cause.
Because Plaintiff failed to timely obtain an expert opinion, the
Court will dismiss Plaintiff’s complaint without prejudice, and
will permit leave to file an amended complaint.
This
disposition is appropriate because Plaintiff’s efforts to obtain
an expert certification after requesting service of process
indicate he can comply with the VMMA certification requirement.
Cf. Order, Sowers v. United States, No. 1:14-cv-177 (E.D. Va.
Feb. 25, 2015), ECF No. 21 (granting leave to file an amended
complaint after VMMA certification challenge).
The Court will now turn to Counts II and III of the
Complaint, which allege constitutional tort claims under the
FTCA.
The FTCA waives the federal government’s sovereign
immunity “under circumstances where the United States, if a
private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.”
FDIC v. Meyer, 510 U.S. 471, 477 (1994).
“In other words, a
claimant has an FTCA cause of action against the government only
if she would also have a cause of action under state law against
a private person in like circumstances.”
Littlepaige v. United
States, 528 F. App’x 289, 292 (4th Cir. 2013) (quoting Miller v.
United States, 932 F.2d 301, 303 (4th Cir. 1991)).
13
Because a
federal constitutional tort claim arises from federal law, “the
United States simply has not rendered itself liable under
§ 1346(b) for constitutional tort claims.”
457.
Meyer, 510 U.S. at
Therefore, to the extent Plaintiff alleges constitutional
tort claims, rather than state law claims, the Court must
dismiss those claims for want of subject matter jurisdiction.
See Reinbold v. Evers, 187 F.3d 348, 355 (4th Cir. 1999)
(“Because the United States has not waived sovereign immunity in
suits claiming constitutional torts, Reinbold’s Fourth Amendment
claim against the United States necessarily fails.”).
As Defendant correctly argues, the above principles
require the Court to dismiss Counts II and III of the Complaint.
As an initial dispositive point, Plaintiff failed to respond in
his brief or at the oral hearing to Defendant’s argument that
the Court lacks subject matter jurisdiction over Counts II and
III.
Accordingly, Plaintiff has waived those claims.
See Brand
v. N.C. Dept. of Crime Control & Pub. Safety, 352 F. Supp. 2d
606, 618 (M.D.N.C. 2004) (citing cases finding waiver through
failure to respond).
Even if Plaintiff’s silence did not waive
the counts, the Court would still dismiss Counts II and III for
lack of subject matter jurisdiction.
Count II of the Complaint alleges that Defendants are
liable for claims of “Medical Malpractice: Deliberate
Indifference.”
(Compl. ¶¶ 55.)
An earlier paragraph states
14
that “[t]he Eighth Amendment to the U.S. Constitution bars
‘deliberate indifference to serious medical needs of
prisoners.’”
(Compl. ¶ 8.)
When reading the Complaint as a
whole, it is unavoidable that Plaintiff alleges an FTCA action
for a violation of the Eighth Amendment of the U.S.
Constitution.
Cf. Farmer v. Brennan, 511 U.S. 825, 829 (1994)
(“A prison official’s ‘deliberate indifference’ to a substantial
risk of serious harm to an inmate violates the Eighth
Amendment.”).
Plaintiff has not attempted to characterize Count
II otherwise.
Accordingly, the Court must dismiss this Count
for lack of subject matter jurisdiction because the United
States has not waived sovereign immunity from federal
constitutional claims under the FTCA.
Similarly, Count III alleges a constitutional tort
claim that must be dismissed for lack of subject matter
jurisdiction.
Count III alleges a violation of “Medical
Malpractice: Equal Protection.”
(Compl. ¶¶ 56-57.)
Although
this Count does not expressly reference the U.S. Constitution,
it is only reasonable to read the allegations as invoking the
Equal Protection Clause of the Fourteenth Amendment or the
coterminous implied equal protection guarantee under the Due
Process Clause of the Fifth Amendment, which is applicable to
15
the federal government.7
See Johnson v. O’Brien, No.
7:09cv00504, 2010 WL 2927976, at *6 (W.D. Va. July 23, 2010)
(citing FCC v. Beach Commc’ns, 508 U.S. 307, 312 (1993)).
In
either case, Count III alleges a constitutional tort that is
barred by sovereign immunity.
Accordingly, the Court must
dismiss that Count for lack of subject matter jurisdiction.8
IV.
Conclusion
For the foregoing reasons, the Court will dismiss
Count I without prejudice, and will grant Plaintiff leave to
file an amended complaint.
The Court will dismiss Counts II and
III for lack of subject matter jurisdiction.
An appropriate order will issue.
July 6, 2016
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
7
The Court construes pro se complaints liberally, but
“liberal construction does not require us to attempt to discern
the unexpressed intent of the plaintiff.” Williams v. Ozmint,
716 F.3d 801, 805 (4th Cir. 2013) (internal quotation omitted).
8
Plaintiff does not attempt to assert a claim under Bivens
v. Six Unknown Named Agents, 403 U.S. 388 (1971). “While Bivens
actions allow for recovery of money damages against federal
officials who violate the United States Constitution in their
individual capacities, Bivens does not allow for recovery of
money damages, or suits in general, against the government
itself.” Reinbold v. Evers, 187 F.3d 348, 355 n.7 (4th Cir.
1999). Plaintiff does not assert any individual-capacity claims
against federal officers. Accordingly, the Court need not
consider whether Plaintiff could sustain a Bivens-like claim.
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