Miller v. Department of Veterans Affairs

Filing 17

OPINION. Signed by District Judge John A. Gibney, Jr. on 2/5/2018. Copy to Pro Se Plaintiff. (jsmi, )

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

GLENN ALVIN MILLER,
Plaintiff,
V.

Civil Case No. 3:17-cv-371-JAG

DEPT. OF VETERAN AFFAIRS,
HUNTER HOLMES MCGUIRE

MEDICAL CENTER,
Defendant.
OPINION

The pro se plaintiff, Glenn Miller, filed a complaint under the Federal Tort Claims Act

("FTCA"),^ alleging that staff at the Hunter Holmes McGuire Medical Center ("VAMC")

negligently punctured his heart while implanting a defibrillator.^ The defendant has moved to
dismiss, or in the alternative, for summary judgment. Essentially, the defendant argues that
Miller has not identified an expert witness to support his claim as required by Virginia law.

VAMC points out that federal law requires Miller to comply with Virginia's negligence rules;
otherwise, this Court lacks jurisdiction over his case. Because the Court lacks subject matter
jurisdiction, the Court grants the defendant's motion to dismiss. The Court, however, will allow

' The plaintiff refers to one section of the FTCA in his complaint, which allows citizens to file
personal injury claims against the government in federal court only after the appropriate federal
agency has issued a final denial of that same claim. 28 U.S.C. § 2675(a). Based on this citation
and the nature of the plaintiffs claims, the Court assumes that the plaintiff meant to sue under
the FTCA, See Creekmore v. United States, No, 2:08-cv-235, 2008 WL 11346470, at *2 (E.D,
Va. June 23,2008) (noting that to sue the United States for medical malpractice, a plaintiff "must
proceed under the limited waiver of sovereign immunity embodied in the [FTCA]").
The plaintiff sued the Department of Veteran Affairs, but only the United States, not any
agency thereof, is a permissible defendant under the FTCA. lodice v. United States, 289 F.3d
270, 273 n.l (4th Cir. 2002). The Court presumes that the plaintiff meant to sue the United
States.

Miller to obtain the required expert opinion and amend his complaint certifying that he has done
so.

L BACKGROUND

After experiencing two cardiac arrests, Miller underwent surgery at VAMC on July 16,
2015 to implant a defibrillator. During the surgery, as VAMC staff inserted the defibrillator

"lead," the lead punctured Miller's heart. (Compl., at 6.) The puncture caused heavy bleeding,
and the doctors rushed him into emergency open-heart surgery.

Fortunately, VAMC staff

repaired the puncture to Miller's heart and stopped the bleeding. The puncture, however, caused
Miller a prolonged recovery, as well as work- and family-related stress.

Miller filed his complaint under the FTCA, claiming that VAMC staff acted negligently
in implanting his defibrillator, and requesting $2.5 million in damages. The defendant moved to

dismiss, or inthe alternative, for summary judgment.^
n. DISCUSSION*

As the government, the United States enjoys sovereign immunity unless it consents to a

suit. United States v. Sherwood, 312 U.S. 584, 586 (1941). "[T]he terms of its consent to be

sued in any court define that court's jurisdiction to entertain the suit." Id. Courts should "strictly

^The defendant properly filed a notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), and Local Rule 7(K), notifying the pro se plaintiff of his deadline to respond to the
motion to dismiss. After the plaintiffs time to respond lapsed, the Court entered four separate
orders extending the plaintiffs deadline and directing him to respond to the motion to dismiss.
The defendant, however, still has not responded to the defendant's motion, and this alone is
grounds for dismissal. James v. United States, No. 3:14-cv-827, 2016 WL 1060251, at *1 (E.D.
Va. Mar. 10, 2016), aff'd, 670 F. App'x 773 (4th Cir. 2016). Instead, the plaintiff submitted two
motions for submission of evidence, which do not address tibe defendant's motion. Nevertheless,
the Court will turn to the substance of the motion to dismiss.

^ The defendant's motion cites Federal Rule of Civil Procedure 12(b)(6), but the defendant's
memorandum in support only addresses Rule 12(b)(1). The Court therefore considers this a
motion to dismiss pursuant to Rule 12(b)(1), which tests the court's subject matterjurisdiction.

The plaintiffbears the burden of proving proper subject matter jurisdiction as the party asserting
jurisdiction. Adams v. Bain, 697 F.2d 1213,1219 (4th Cir. 1982).

construe[]" alleged waivers of sovereign immunity "in favor of the sovereign," Lane v. Pena^
518U.S. 187,192(1996).

When the United States does waive its sovereign immunity, plaintiffs "must comply with
the terms and conditions of the waiver or their suits are barred." James v. United States, 143 F.

Supp. 3d 392, 396 (E.D. Va. 2015). Through the FTCA, the United States waived sovereign
immunity for certain personal injury claims. Id. Specifically, a plaintiff may bring tort claims
against the United States only when "a private person[] would be liable to the claimant in

accordance with the law of the place where the act or omission occurred."

28 U.S.C. §

1346(b)(1). Thus, state law determines the federal government's liability under the FTCA.

Baxter v. United States, No. l:15-cv-633, 2016 WL 3618363, at *3 (E.D. Va. July 6, 2016). In

this case, the relevant act or omission occurred in Virginia, so the law of Virginia, and

specifically the Virginia Medical Malpractice Act ("VMMA"), governs liability. Sowers v.
United States, 141 F. Supp. 3d 471,476-477 (E.D. Va. 2015).

The VMMA says that to file a medical malpractice action in Virginia, a plaintiff must

obtain an expert opinion stating that his medical care "deviated from the applicable standard of
care and the deviation was a proximate cause of the injuries claimed." Va. Code Ann. § 8.01-

20.1. If a plaintiff does not obtain such an expert opinion prior to serving process on the
defendant, the Court may dismiss the case. Parker v. United States, 475 F. Supp. 2d 594, 596

(E.D. Va, 2007), affd, 251 F. App'x 818 (4th Cir. 2007). Furthermore, a defendant may request
a certification form affirming that the plaintiff obtained the necessary expert opinion before
serving his complaint, and the plaintiff must fulfill the request v^thin ten business days. Va.
Code Ann. § 8.01-20.1.

The statute does not require expert certification when "the alleged act of negligence
clearly lies within the range of the jury's common knowledge and experience." Va. Code Ann. §

8.01-20.1. This exception, however, only applies in "rare instances," because normally the facts
in a medical malpractice claim require more than common knowledge and experience to
understand. Parker, 475 F. Supp. 2d at 597 (citing Beverly Enterprises-Virginia v. Nichols, 441

S.E.2d 1, 3 (1994)).

More often than not, a plaintiff's claim rests on professional medical

judgment, so the lawsuit requires expert testimony to resolve it. Id.
In this case, the complaint does not indicate that Miller obtained an expert opinion in
compliance with the VMMA. After Miller served the complaint, and pursuant to the VMMA,
the defendant sent written notice to Miller on July 6, 2017, requesting a certification form for his

expert opinion.^ According to the defendant, the parties remained in contact for two weeks, and
Miller seemed to say he would provide the expert certification. Miller instead sent medical
records to the defendant, which did not include an expert certification.

The Court and the

defendant to date have not received a written expert certification fi-om the plaintiff. The VMMA
provided Miller with ten business days to comply with the defendant's request; those ten
business days have elapsed many times over. Va. Code Ann. § 8.01-20.1.

This case does not qualify as one of the "rare instances" requiring no expert certification.
Parker, 475 F. Supp. 2d at 597. Miller alleges that VAMC doctors negligently implanted a
defibrillator in his body. Laymen do not know the correct procedures and standard of care for

^ In evaluating a 12(b)(6) motion, courts typically focus only on the complaint, documents
attached to the complaint, and documents explicitly incorporated into the complaint by reference.
Goines v. Valley Cmty. Servs. Bd, 822 F.3d 159, 166 (4th Cir. 2016). In appropriate cases,
however, courts may also consider documents the movant submitted if the documents are

integral to the complaint and indisputably authentic. M; Witthohn v. Fed. Ins. Co., 164 F. App'x
395, 396 (4th Cir. 2006). The Court thus considers the defendant's July 6, 2017 letter to the
plaintiff, as it is integral to his compliance with Virginia law, a necessary component of his
FTCA claim.

such a surgery from their "common knowledge and experience," and clearly would require
professional medical judgment to decide the case. Id.
In sum, the United States waived sovereign immunity under the FTCA only to the extent

a tort claim could advance under applicable state law. Virginia law requires a plaintiff in a
medical malpractice suit to obtain an expert opinion prior to serving the defendant, and Miller
has not certified that he obtained such an opinion.

Because the United States retains its

sovereign immunity, the Court does not have subject matter jurisdiction over this case. The
Court therefore grants the defendant's motion to dismiss. Nevertheless, the Court will allow the

plaintiff thirty days to amend his complaint to certify that he has obtained an expert opinion.
III. CONCLUSION

For the reasons stated above, the Court grants the defendant's motion to dismiss, but

allows the plaintiff thirty days to obtain an expert opinion to comply with the VMMA, and
amend his complaint accordingly.
The Court will enter an appropriate order.

Let the Clerk send a copy of this Opinion to all counsel of record and to the pro se
plaintiff.

Date:

K

5

John A. Gibney, Jr.
• 2018

United States Distrid Ji