Smith, et. al. v. United States of America
Filing
81
MEMORANDUM OPINION AND ORDER: The Court ORDERS that the 64 MOTION of Defendant United States of America to Dismiss Plaintiff Scott Smith's Claim for Loss of Consortium be DENIED and that the Plaintiff's 70 MOTION to File a Supplemental Complaint be DENIED AS MOOT. Signed by Judge Irene C. Berger on 7/5/2016. (cc: attys; any unrepresented party) (slr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
SARA M. LAMBERT SMITH
and SCOTT SMITH,
Plaintiffs,
v.
CIVIL ACTION NO. 5:14-cv-30075
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER
The Court has reviewed the Motion of Defendant United States of America to Dismiss
Plaintiff Scott Smith’s Claim for Loss of Consortium (Document 64), the Memorandum in Support
(Document 65), Plaintiff Scott Smith’s Response to Motion of Defendant United States of America
to Dismiss Plaintiff Scott Smith’s Claim for Loss of Consortium (Document 73), and the United
States’ Reply Memorandum (Document 75). The Court has also reviewed the Plaintiff’s Motion
to File a Supplemental Complaint (Document 70), Defendant United States of America’s
Memorandum in Opposition to Plaintiff’s Motion to File a Supplemental Complaint (Document
76), and Scott Smith’s Response Memorandum in Support of His Motion to File a Supplemental
Complaint (Document 77). In addition, the Court has reviewed all attached exhibits. For the
reasons stated herein, the Court finds that the motion to dismiss should be denied, and the motion
to file a supplemental complaint should be denied as moot.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Plaintiffs, Sarah M. Lambert Smith and her husband, Scott Smith, allege that Ms.
Smith was a patient at Access Health Associates. Ms. Smith, who was twenty-four years old at
the time, underwent a cesarean section on December 18, 2013. On December 25, 2013, she went
to the Emergency Room at Raleigh General Hospital with heavy vaginal bleeding and syncope (or
fainting). An ultrasound indicated possible retained products of conception. Dr. Roy Wolfe, an
employee of Access Health, performed a dilation and curettage, which did not stop the bleeding.
Ms. Smith alleges that Dr. Wolfe then performed a hysterectomy without attempting any
alternative procedures that would have preserved her ability to have additional children. Mr.
Smith alleges that he has been deprived of the consortium, society, and comfort of his wife as a
result, in part due to their inability to have additional children.
Access Health Associates is a public health care provider subject to the oversight of the
United States Department of Health and Human Services (DHHS). Torts committed by its
employees within the scope of their employment are therefore governed by the Federal Tort Claims
Act (FTCA). The Plaintiffs filed an administrative claim and a notice of claim with DHHS, dated
June 12, 2014, on the letterhead for the law office of their counsel, Robert Berthold. (6/12/2014
Claim, att’d to Pl.s’ Compl. at Ex. 1) (Document 1-1.) The heading of the notice of claim letter
notes that it is in reference to “Sara M. Lambert Smith and Scott Smith, her husband.” (Id.) The
text of the letter states:
Enclosed herewith is a copy of the Claim for Damage, Injury
or Death that I submit for filing on behalf of my clients, Sara M.
Lambert Smith and Scott, Smith, her husband. I, along with Arden
J. Curry, II, am counsel for the claimants. If you or the Department
of Health and Human Services need any additional information,
please contact me at the above address and phone number.
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I trust that by filing this claim with you, the Department of
Health and Human Services of the United States of America is
formally on notice of our claim. I am also enclosing our Notice of
Claim and Certificate o[f] Merit, as required under West Virginia
law.
The claim form names as claimants “Sara Lambert Smith & Scott Smith, her husband.” (Id.)
The basis of claim section provides:
Sara Lambert was admitted to Raleigh General Hospital in Beckley,
West Virginia on December 25, 2013 with regard to significant
bleeding and complications that she developed after the delivery of
her child at the same hospital on December 18, 2013. The
gynecologist who handled the surgical hysterectomy on December
25, 2013 was Dr. Roy Wolfe, who was assisted by Dr. Normal
Siegel, who were employees of Access Health OB/GYN in Beckley,
West Virginia. The claimant contends that Dr. Wolfe and agents
and employees of Access Health OB/GYN care of Sara Lambert
Smith was below the applicable standard of medical care. As a
result of the deviation from the normal standard of medical care,
Sara suffered a surgical hysterectomy without attempts at alternative
procedures.
This hysterectomy permanently prevents Sara
Lambert Smith from delivering other children, and also includes
damage to internal organs, weakening of the pelvic floor and a loss
of feeling from some of the pelvic nerves, possible urinary
incontinence and bowel problems, and loss of sensation.
The Plaintiffs sought a total sum of $2,000,000. (Id.)
The DHHS denied the claim in a letter dated October 21, 2014. The heading notes that
the denial is in reference to the “Administrative Tort Claim of Sara Lambert Smith and Scott
Smith.” (Denial Letter, att’d to Pl.’s Compl. at Ex. 2) (Document 1-2.) The text of the letter
again recognizes the claimants as Sara Lambert Smith and Scott Smith, and summarizes the claim
as alleging that the named doctors “performed a hysterectomy without attempting alternative
procedures, which caused Sara Lambert Smith to suffer the inability to bear children and personal
injury.” (Id.) The denial was based on a finding that the evidence did not support allegations
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“that the alleged injuries were caused by the negligent, or wrongful, act or omission of a federal
employee acting within the scope of employment.” (Id.)
The Plaintiffs initiated this action on December 16, 2014. In its Answer (Document 4),
the United States asserted failure to exhaust administrative remedies as a defense. In discovery,
the United States further explained its position that Mr. Smith had not properly exhausted his
administrative remedies for his loss of consortium claim. On June 5, 2015, Scott Smith filed a
separate notice of claim for himself only. The basis of claim section contains the same language
as the previous notice of claim, with one additional sentence at the end of the paragraph: “As a
result, her husband Scott Smith has suffered from the loss of consortium of his wife and mental
anguish as they can no longer have children.” (June 5, 2015 Claim, att’d to Pl.s’ Mot. to File
Supp. Compl. as Ex. 2) (Document 70-2.) The Plaintiffs state that no action has been taken on
the June 5, 2015 claim. The United States filed its motion to dismiss Mr. Smith’s loss of
consortium claim for lack of subject matter jurisdiction on May 31, 2016.1 The Plaintiffs filed
their response and their motion to file a supplemental complaint on June 6, 2016. The United
States filed its reply and its opposition to the motion to file a supplemental complaint on June 13,
2016, and the Plaintiffs filed a reply in support of their motion to file a supplemental complaint on
June 15, 2016. Briefing is complete, and the matter is ripe for resolution.
1 Though a court must always consider challenges to its jurisdiction, the Court notes that all facts related to the present
motion were available to all parties at the time the complaint was filed. The Court’s Order and Notice (Document 5)
set a deadline of March 17, 2015, for motions brought pursuant to Rule 12(b). Dispositive motions except those
brought under Rule 12(b) were due by April 8, 2016. Trial in this matter is scheduled to begin on July 18, 2016.
There may be circumstances when a party learns of facts that call a court’s jurisdiction into question in the weeks
immediately preceding trial, necessitating a belated motion to dismiss. In this case, however, the United States raised
the potential defense in its answer to the complaint and further elaborated on its position during discovery. Bringing
the motion less than two months before the trial date displays a disregard for the time and resources of both the Court
and the Plaintiffs.
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STANDARD OF REVIEW
A motion to dismiss pursuant to Rule 12(b)(1) raises the fundamental question of whether
a court is competent to hear and adjudicate the claims brought before it. “In contrast to its
treatment of disputed issues of fact when considering a Rule 12(b)(6) motion, a court asked to
dismiss for lack of jurisdiction may resolve factual disputes to determine the proper disposition of
the motion.” Thigpen v. United States, 800 F.2d 393, 396 (4th Cir. 1986) rejected on other
grounds, Sheridan v. United States, 487 U.S. 392 (1988) (but explaining that a court should accept
the allegations in the complaint as true when presented with a facial attack that argues insufficiency
of the allegations in the complaint). Reasonable discovery may be necessary to permit the
plaintiff to produce the facts and evidence necessary to support their jurisdictional allegations. Id.
The plaintiff has the burden of proving that subject matter jurisdiction exists. See Richmond,
Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991). Dismissal
for lack of subject matter jurisdiction is proper only if there is no dispute regarding the material
jurisdictional facts and the moving party is entitled to prevail as a matter of law. Evans v. B.F.
Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999).
DISCUSSION
A. Motion to Dismiss
The United States contends that this Court lacks jurisdiction over Mr. Smith’s loss of
consortium claim because it was not expressly stated in the notice of claim dated June 12, 2014.
Because administrative claims must be presented prior to filing a civil action in federal court, the
United States argues that the later notice of claim more expressly setting forth Mr. Smith’s claim
is of no effect. The Plaintiffs argue that Mr. Smith adequately presented his loss of consortium
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claim, as he was clearly identified as a claimant in the claim documents and the case law does not
require identification of specific claims. The Plaintiffs further note that the DHHS’s denial of the
claim recognized both Mr. and Ms. Smith as claimants, demonstrating that the claim documents
put the agency on notice as to Mr. Smith’s claims.
The FTCA requires that tort claims against the United States first be presented to the
appropriate federal agency before suit may be initiated in federal court. 28 U.S.C. § 2675.
“[T]he requirement of filing an administrative claim is jurisdictional and may not be waived.”
Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986). A properly presented claim must
include both “a completed SF 95 (or other written notification of an incident), and a claim for
money damages in a sum certain.” Kokotis v. U.S. Postal Serv., 223 F.3d 275, 278 (4th Cir. 2000)
(internal emphases and quotation marks removed). “The notice requirement does not require a
claimant to enumerate each theory of liability in the claim,” instead requiring claimants to provide
the facts necessary to allow the agency to conduct an investigation into the incident. Brown v.
United States, 838 F.2d 1157, 1160 (11th Cir. 1988); see also Ahmed v. United States, 30 F.3d
514, 517 (4th Cir. 1994); Drennen v. United States, No. 5:06-CV-00390, 2007 WL 983984, at *2
(S.D.W. Va. Mar. 27, 2007) (Johnston, J.) (holding that the notice must be “sufficient to enable
the agency to investigate”).
Loss of consortium is an independent cause of action under West Virginia law. DuPont
v. United States, 980 F. Supp. 192, 196 (S.D.W. Va. 1997) (Goodwin, J.). Several courts,
including this district, have dismissed loss of consortium claims where only the injured spouse
presented an administrative claim, often noting that the spouse claiming loss of consortium neither
filed an independent claim nor joined the injured spouse’s claim. Id.; Bunner v. United States,
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No. 6:13-CV-20655, 2016 WL 1261151, at *14 (S.D.W. Va. Mar. 30, 2016) (Johnston, J.);
Johnson v. United States, 704 F.2d 1431, 1434 (9th Cir. 1983).
In the instant case, however, Mr. Smith did join Ms. Smith’s administrative claim.
Although the words “loss of consortium” do not appear on the claim form or in the accompanying
letter, Mr. Smith is clearly identified as a claimant in his capacity as Ms. Smith’s husband. The
DHHS’s denial letter recognized both Mr. and Ms. Smith as claimants. Claimants need not
specifically identify the legal basis of their claims, although the legal basis of Mr. Smith’s claim
for Ms. Smith’s injuries, in his capacity as her husband, is quite clear. The Court finds that the
June 12, 2014 administrative claim and notice adequately put the United States on notice of Mr.
Smith’s claim for loss of consortium. The basis of claim described Ms. Smith’s injuries, including
permanent inability to deliver children, “damage to internal organs, weakening of the pelvic floor
and a loss of feeling from some of the pelvic nerves, possible urinary incontinence and bowel
problems, and loss of sensation.”2 (6/12/2014 Claim.) Those facts, combined with Mr. Smith’s
inclusion as a claimant,3 provided sufficient information to permit the United States to investigate
the incident and evaluate settlement options. Thus, the Court finds that the United States’ motion
to dismiss should be denied.
2 Under these facts, the nature of Mr. Smith’s consortium injury is particularly obvious. For example, his wife’s
inability to bear children naturally means that he will not be able to have additional biological children within his
marriage. In other circumstances, a description of the consortium injury might be necessary to provide sufficient
notice to the agency.
3 The United States cited several cases in which the spouse claiming loss of consortium was listed as a spouse, but
was not identified as a claimant and did not sign the claim form. The Court finds that those cases are distinguishable.
Mr. Smith was clearly identified as a claimant and the DHHS recognized him as a claimant. Mr. Berthold signed the
form after identifying himself as counsel for both claimants, setting the instant case apart from those in which only
the injured spouse signed the claim form. Thus, the question before the Court is whether the agency had sufficient
information to investigate his claim, rather than whether he presented a claim.
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B. Motion to File Supplemental Complaint
The Plaintiffs seek to file a supplemental complaint that includes Mr. Smith’s June 5, 2015
administrative claim. The United States argues that plaintiffs lack jurisdiction if they do not seek
administrative relief prior to filing suit, and cannot cure a jurisdiction defect by completing the
administrative claims process while the suit is pending. Given the Court’s finding that Mr.
Smith’s loss of consortium claim was adequately presented in the joint claim form submitted June
12, 2014, the Plaintiffs’ motion to file a supplemental complaint is moot.
CONCLUSION
WHEREFORE, following thorough review and careful consideration, the Court ORDERS
that the Motion of Defendant United States of America to Dismiss Plaintiff Scott Smith’s Claim for
Loss of Consortium (Document 64) be DENIED, and that the Plaintiff’s Motion to File a
Supplemental Complaint (Document 70) be DENIED AS MOOT.
The Court DIRECTS the Clerk to send a certified copy of this Order to counsel of record
and to any unrepresented party.
ENTER:
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July 5, 2016
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