v. James et al

Filing 41

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 10/28/2015. Copy mailed to Plaintiff on 10/29/2015.(tjoh, )

OCT 2 9 2015

IN THE UNITED STATES DISTRICT COURT

ZJ

FOR THE EASTERN DISTRICT OF VIRGINIA

CLERK, U.S. DISTRICT COURT

Richmond Division

SAMUEL M.

RICHMOND. VA

JAMES,

Plaintiff,
Civil Action No.

V.

3:14cv827

UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM OPINION

This

matter

DISMISS

FOR

GRANTED

(Docket

OF

is

FAILURE

No.

JURISDICTION

TRIAL

DATE

(Docket
DATE

No.

(Docket

(Docket

No.

MOTION TO

TO

27);

(Docket
34);

the

STATE

A

No.

No.

33);

37);

40).

For

has

been

TO

MOTION

TO

the

reasons

MOTION

MOTION

STRIKE
SECOND

that

AND

MAY

TO

SET

the

TO
BE

FOR LACK

FOR

MOTION

follow,

JURISDICTION

RELIEF

DISMISS

PLAINTIFF'S

PLAINTIFF'S

MOTION

SET

A

REVIEW
A

FOR

TRIAL
REVIEW

DEFENDANT'S

(Docket No,

30)

will

The other motions will be denied as moot.

various
a

WHICH

MOTION

Plaintiff's

FOR LACK OF

DEFENDANT'S

UPON

and

FACTUAL

On

on:

CLAIM

30);

Plaintiff's

No.

Court

DEFENDANT'S

(Docket

DISMISS

be granted.

before

occasions,

patient

at

the

BACKGROUND

Plaintiff

Samuel

Veterans

Affairs

M.

James

Medical

(^'James")
Center

in

Virginia C'VAMC") for various treatments since at least 1974.^
James's complaint arises out of the medical care provided by the
healthcare
Affairs
Claims

providers

employed

(the ''DVA") .
Act

by

the

Department

of

Veterans

He filed this action under the Federal Tort

C'FTCA") .

Count

I

alleges

that

the

DVA

38

U.S.C.

improperly rated his disability status under

employees

§ 1155.

Counts II and III allege claims of medical malpractice.
In Count I,

providers

James alleges that,

failed

evaluations

to

to

''perform

determine

required under 38 U.S.C.
James,

required

[Plaintiff's]

1155." Docket No.

those employees breached a

U.S.C.

§

5103(d)(1)

in 1973,

and

those

the DVA healthcare

medical
medical

8 at 1.

tests

and

condition

as

According to

duty to assist pursuant to 38
failures

resulted

in

improper

disability rating that led to financial hardship and bankruptcy.
Id.

James

alleges

seeks

that

to

the

recover

DVA

damages.

healthcare

Id.

In

providers

Count

II,

committed

James

medical

malpractice between 2002 and 2010 by negligently prescribing an
excessive
Count

dosage

III,

medical

James

of

hypertension

claims

malpractice

by

that

medication.

See

Id.

at

2.

In

DVA healthcare providers committed

incorrectly diagnosing

him with

chronic

^ Although James merely stated that he was under the treatment of
the

federal

government

in

his

complaint.

Defendant's

memoranda

and previous filings by James indicate that he was a patient of
the VAMC in Virginia. See Docket No. 27 at 1-2;
1-2; Case No. 3:13CV861, Docket No. 3 at 1.

Docket No.

31 at

obstructive
steroids

pulmonary

since

2002.

disease
See

Id.

and
at

3.

negligently
Says

James,

prescribing
the

steroids

caused further health issues and seeks to recover damages.

Id.

PROCEDURAL BACKGROUND

James,

proceeding pro

Tort Claims with the DVA.

25,

se,

James

filed

two

SF-95

filed the first

Administrative

SF-95 on October

2011 seeking $37,000 in damages for improper deductions and

co-payment

charges

1975.

Docket

See

December 18,
No.

28-2

of

these

allegedly caused by
No.

2013.

8-1.

See Docket No.

(dated version) .

Defendant

claims,

James

''exhausted

2672." See Docket No.
In 2013,

James

a

filed

8-2

disability
the

second

rating

in

SF-95

on

{undated version);

Docket

The record is unclear as to the result

only

the

time

states

in

constraints

his

complaint

under

Title

that
28

§

8 at 1.^

James filed a

complaint alleging substantially the

same claims that appear in the current Complaint.^ The former
action was dismissed for lack of subject matter jurisdiction and

^ 28 U.S.C.

§ 2672 authorizes federal agencies to settle civil

claims against them,

but does not specify any time constraints.

^ Counts I of both Complaints allege a breach of a duty to assist
arising out of an incident with the VAMC on March 3, 1975;
Counts
II
of
both
Complaints
allege
that
DVA
doctors
overprescribed medication causing swelling of
James's
feet;
Counts III of both Complaints claim that he experienced harm due
to steroids prescribed to him by DVA doctors for a negligent
diagnosis of COPD. Compare Case No. 3:13CV861, Docket No. 3 at
2-3 with Case No.

3:14CV827,

Docket No.

8 at 1-3.

failure
Case

to state

No.

claim upon which relief may be granted.

3:13CV861,

on November 20,

On

a

Docket

2014.

December

The

Fourth Circuit

3:13CV861,

2014,

8,

motions

18.

See Case No.

weeks

Complaint in this case.
separate

No.

three

See Docket No.

to

dismiss

for

8 at

lack

affirmed

Docket No.

later,

James

4.

See

21.

filed

the

Defendant filed

of

subject

matter

jurisdiction and failure to state a claim upon which relief may
be granted.

James did not file responses to Defendant's motions,

but did file

a

Motion

a

Motion to Set a

for

Review

on

Trial Date on August 7,

August

14,

2015.

2015 and

Defendant

filed

memoranda in opposition to James's motions on August 18, 2015.

DISCUSSION

A.

Defendan-t's

Motion

to

Dismiss

Under

Fed.

R.

Civ.

P.

Dismiss

for

12 (b) (1)
1.

Standard of Review

Because

lack

of

12(b)(1)

under

Defendant

subject
and

Fed.

a

R.

has

matter

Motion

Civ.

P.

to

filed

both

jurisdiction
Dismiss

12 (b) 6) ,

for

the

a

Motion

to

under

Fed.

R.

failure

to

state

challenge

to

Civ.
a

P.

claim

subject matter

jurisdiction asserted in the motion under Rule 12(b)(1)

must be

addressed

first.

Pharma,

Inc. ,

F.3d

471

Marathon Oil,

544,

Inc.

Sucampo

548

Pharms.,

(4th

526 U.S.

Cir.

574,

Inc.

2006)

583

v.

Astellas

(citing

(1999)).

Ruhrqas

AG v.

The burden is on the plaintiff to prove that subject matter

jurisdiction

exists.

Piney-Run

Comm'rs of Carrol Cty.,
has made

no effort

Preservation

523 F.3d 453,

to meet

459

Ass^n

(4th Cir.

v.

Cnty.

2008).

James

this burden and the motion to dismiss

for lack of jurisdiction could be granted for that reason alone.
Nonetheless,

considering

that

James

is

proceeding pro

se,

the Court will examine the question under settled principles of
law.

an

The United States has sovereign immunity from suits absent

express

waiver.

(1990);

Welch

Waivers

of

v.

United
U.S.

sovereign

States
F.3d

409

v.
646,

immunity

favor of the sovereign." Lane v.
Therefore,

''it

is

the

Palm,

must

650-51

be

Pena,

plaintiff's

494

(4th

518 U.S.
burden

the

claim."
States,

statute's
Welch,

waiver

409

50 F.3d 299,

2.

F.3d
304

exceptions
at

651;

(4th Cir.

apply

see

also

to

608

2005).

construed...in

187,

to

596,

Cir.

''strictly

unequivocal waiver of sovereign immunity exists,
of

U.S.

192

show

(1996).
that

an

and that none
his

Williams

particular
v.

United

1995).

Analysis

Defendant presents two arguments to support its contention
that

there

is

a

lack

Defendant argues that,
vested

in

the

United

Claims." Docket No.

of

subject

matter

as to Count I,
States

31 at 3.

Court

Second,

jurisdiction.

First,

"exclusive jurisdiction is
of

Appeals

for

Veterans

Defendant argues that there

is a

lack of subject matter jurisdiction over Counts

(and

Count

claim)

I

if

because

subject

is

James

Malpractice Act.

lacks

it

intended

failed

Id.

at

matter

to

be

a

malpractice

to comply with the Virginia Medical

5.

Both arguments

jurisdiction

are valid.

herein

MOTION TO DISMISS FOR LACK OF JURISDICTION

(i)

medical

II and III

and

The Court

will

grant

(Docket No.

the

30).

Exclusive jurisdiction over Count I is vested in
the United States Court of Appeals for Veterans
Claims

To
James

begin,
alleges

invokes

38

it

is

in

necessary

Count

U.S.C.

§§

I.

In

1155,

as

if

it

is

a

text of the Complaint,

statute,
benefit

that

Thus,

count,
and

claim,

read as a whole,

and

what

not

James

is

it

is

that

expressly

repeatedly

clear

mentions

sometimes
from

the

that Count I is based in

DVA's authority to

does

it

even though Count I

malpractice

specifically the
ratings,

determine

5103(d)(1)

the DVA's statutory duties.
sounds

to

sound

in

assign disability

common

law

medical

malpractice.
It

is

settled

sovereign

immunity

decisions.

James's

authorizes

that

for

schedule

of

ratings

specific

injuries

or

of

United

claims

claim

and requires

the

regarding

relies

the

States

on

38

combinations

in

of

the

U.S.C.

Secretary of the

reductions

has

not

DVA's
§

waived

benefit

1155

which

DVA to develop ^'a

earning

injuries."

capacity

38

from

U.S.C.

§

1155.

38

''shall

U.S.C.

decide

§

all

511

provides

questions

that

of

the

law

and

Secretary

of

DVA

affects

fact...that

the

the

provision of benefits by the Secretary to veterans...the decision
of

the

Secretary...shall

reviewed

by

any

511(a).

The

Appeals

(BVA)

28 C.F.R.

§

other

be

final

and

official

Secretary

has

or

conclusive

by

any

designated

to make the decisions

and may

not

be

court..."

38

U.S.C.

Board

of

Veterans

the

required of the

§

Secretary.

20.101(a).

To provide a mechanism for appeal of a decision made by the
BVA,

Congress

United

States

Veterans'

vested
Court

Judicial

jurisdiction
for

Appeals

Review

Act.

to

for

28

consider

appeals

U.S.C.

§

the

Claim under

Veterans'

in

the

7104(a)

(''The

Court

of Appeals for Veterans Claims shall have exclusive jurisdiction
to review decisions by the Board of Veterans Appeals.").

Here,
BVA and,
for

Count I

clearly falls within the

thence on appeal,

Veterans

improper

Claims

benefit

Therefore,

the

to the United States Court of Appeals

because

decision
Court

jurisdiction of the

of

James

made
Appeals

is

seeking

under

38

for

relief

U.S.C.

Veterans

for

§

an

1155.

Claims

has

exclusive jurisdiction.

Further,
wherein James

in

his

in the previous case between James
alleged substantially the same

complaint,

the

Court

granted

and Defendant,

first

three counts

Defendant's

motion

to

dismiss

for

lack

of

because

exclusive

subject

matter

jurisdiction

for

jurisdiction

the

claim

on

rested

United States Court of Appeals for Veterans Claims.
3:13CV861,
on

Docket No.

November

There

has

20,

been

18.

2014.

no

The

See

jurisdiction on this Court.

in

I

the

See Case No.

Fourth Circuit affirmed the order

Case

material

Count

No.

3:13CV861,

change

in

Therefore,

matter jurisdiction over Count I

the

Docket

law

No.

that

21.

confers

this Court lacks subject

of the Complaint.

It will be

dismissed without prejudice to any right that James may yet have
to proceed in the proper forum.
(ii)

James Failed to Comply With the Virginia Medical
Malpractice Act

Defendant

claims

that

there

is

a

lack

of

subject

matter

jurisdiction under the FTCA for Plaintiff's medical malpractice
claims.

FTCA

A 12(b)(1)

is

motion

jurisdictional

to

in

dismiss

nature,

is

therefore

required to consider whether the facts
within

the

statute."

LEXIS 95824 *3

Bell

(E.D. Va.

v.

2011)

United

proper because

the

''[t]he

Court

is

of this case bring it

States,

2011

U.S.

Dist.

(dismissing a medical malpractice

claim for lack of jurisdiction because the plaintiff failed to
obtain a certificate of merit). Accordingly,

case

do

waived

not
its

support
sovereign

a

conclusion
immunity

that

under

subject matter jurisdiction.

8

the
the

if the facts of the

United
FTCA,

States

there

is

has
no

Under the FTCA,
sovereign
result
the

the United States has agreed to a waiver of

immunity

for

specific

personal

injury

claims

from negligence where the government would be
same

extent

as

circumstances."

28

plaintiff

a

comply

must

waiver or their
States V.

U.S.C.

§

the

individual

When

there

terms

and

applies

584,

in

586-87

this

liable ''to

under

is

a

like

waiver,

conditions

are barred by sovereign

312 U.S.

law

2674.

with

suits

Sherwood,

Virginia

private

that

of

immunity.

a

the

United

(1941).

case

because

liability

may

only be found ''in accordance with the law of the place where the
act or omission occurred." 28 U.S.C.

Medical

Malpractice

Act

medical

malpractice

to

("VMMA")
obtain

before serving process on a

require
the

expert

common

8.01-20.1.

applies
object
Walton,

determine

requires

an

a

expert

The Virginia

plaintiff

alleging

certificate

of

merit

defendant unless the claim does not

because

and

1346(b)(1).

the

experience

subject
of

the

matter
jury.

is

Va.

within
Code

§

The exception to the certificate of merit requirement

in

left

208 Va.

necessary

the

knowledge

only
is

testimony

§

to

rare
in
214,

patient's
218-19

establish

whether

standard

a

circumstances,

of

the
care.

the

such

body.

(1967).

See

applicable

Coston

when

e.g.

a

foreign

Easterling

v.

Expert testimony is usually

standard

alleged malpractice
See

as

v.

was

Bio-Med

a

of

care

deviation

and
from

Applications

of

Virginia,
to

Inc.^

obtain

a

275 Va.

Va.

5

(2008) .

of

certificate

malpractice claim.
(E.D.

1,

merit

See Parker v.

When required,
is

U.S.,

''fatal"

475

F.

to

Supp.

a

medical

2d 594,

597

requested

the

2007) .

After

James

served

the

complaint.

Defendant

required certificate of merit on April 17,

31-1.

the failure

James

responded

on

April

23,

2015.

2015

See

Docket No.

claiming

that

the

certificate was not required because the claims were within the
common knowledge and experience of the jury.

See Docket No.

31-

2.

Here,

experience

the

claims

of

a

are

jury.

not

within

Counts

II

the

and

common

III

are

knowledge

predicated

and

on

medical malpractice and grounded in allegations that the doctors
deviated

from

the

alleges that a

negligently

standard of care

in the

profession.

Count

II

DVA doctor deviated from the standard of care by

overprescribing

medication

which

caused

swelling.

Count III depends on whether the Plaintiff's DVA doctor complied
with

the

medications

knowledge

standard
for

or

of

COPD.

care

in

Neither

experience

of

diagnosing
claim

a

is

jury

as

and

prescribing

within

each

the

claim

common

deals

specifically with the standard of care provided by DVA doctors.
Therefore,

Virginia

Law

requires

c e r t i f i c a t e of merit.

10

James

to

obtain

an

expert

Absent

the

requisite

certification,

a

medical

malpractice

claim cannot proceed because the United States waived sovereign
immunity under
the

extent

the

that

FTCA

the

for medical malpractice

claim

can

advance

under

claims

state

James has not obtained the required certificate,
cannot

proceed

in

this

Court

under

the

FTCA.

lacks subject matter jurisdiction under the
and

III.

Those

whatever

Counts

rights

will

may

James

be

dismissed

have

upon

only to

law.

Here,

and his claims
Thus,

the

Court

FTCA over Counts

without

securing

prejudice

the

II
to

requisite

certification.
CONCLUSION

For

the

foregoing

DISMISS

FOR

LACK

granted.

Count

I

OF

reasons,

the

JURISDICTION

DEFENDANT'S

(Docket

of the Complaint against

No.

MOTION

TO

will

be

30)

the United States of

America is hereby dismissed without prejudice to whatever rights
James may have to proceed in the proper forum.

of

the

Court

Complaint
hereby

compliant

December
FOR

grants

with

can do so,

the

hereby
James

dismissed

leave

requirements

to

without

file

of Va.

an

Code

prejudice.

Amended

§

The

Complaint

8.01-20.1

if he

provided that he files any such Amended Complaint by

31,

FAILURE

are

Counts II and III

2015.
TO

Accordingly,

STATE

A

CLAIM

DEFENDANT'S

UPON

11

WHICH

MOTION

RELIEF

MAY

TO

DISMISS

BE

GRANTED

(Docket No.
No.

33),

27)/ PLAINTIFF'S MOTION TO SET A TRIAL DATE (Docket

PLAINTIFF'S MOTION

FOR REVIEW

TO STRIKE AND SET A TRIAL DATE

FOR REVIEW

The

(Docket No.

Clerk

is

40)

(Docket

(Docket No.

37)

No.

34),

MOTION

and SECOND MOTION

will be denied as moot.

directed

to

send

a

copy

of

this

Memorandum

Opinion to the plaintiff.
It

is

so ORDERED.

/s/

Robert E.

Payne

Senior United States District Judge

Richmond,
Date:

Virginia

October

,

2015

The denial is without prejudice to the assertion of any grounds
for dismissal, including the bar of the statute of limitations,
asserted in that motion if James files an Amended Complaint.

12