United States District Court, D. Maryland
RUBY N. FRAISER, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
Xinis United States District Judge.
in this medical malpractice case is Defendant's partial
motion to dismiss brought pursuant to Rules 12(b)(1) and (6)
of the Federal Rules of Civil Procedure. The relevant issues
have been fully briefed, and a motions hearing was held on
April 28, 2017. For the foregoing reasons, Defendant's
motion is denied.
April 1, 2013, Plaintiff Ruby N. Fraiser was diagnosed by
chest x-ray with multiple pulmonary nodules. Her
pulmonologist at Walter Reed National Military Hospital, Dr.
Michael Perkins, was concerned that the nodules could be
malignant. ECF No. 1 at 4. He therefore referred Plaintiff
for a wedge resection and biopsy. Id. On May 13,
2013, Plaintiff arrived at Walter Reed's Ambulatory
Procedure Unit and was taken to the operating room for a
robotic-assisted wedge resection of the right upper lobe of
her lung which was performed by Capt. John S. Thurber, a
cardio-thoracic surgeon at Walter Reed. While she was under
anesthesia, Dr. Thurber biopsied one nodule which Dr. Muir
and Justin M. Wells, MAJ, MC, then interpreted by frozen
section pathology as cancerous, specifically an
diagnosis prompted Cpt. John S. Thurber, to perform a right
upper lobectomy immediately, thus causing Plaintiff to lose
her upper lung. As a result of the surgery, which was
complicated by her pre-existing lung condition, Frazier
experienced a significant decrease in lung function. Frazier
learned after the surgery that the frozen section pathology
interpretation obtained during Plaintiff's May 13, 2013
surgery was incorrect, that she did not have cancer, and the
upper lobe of her lung should not have been removed.
Id. at 5.
11, 2016, Plaintiff filed a claim with the Maryland Health
Care Alternative Dispute Resolution Office
(“HCADRO”) against the United States under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 2671 et seq. After Plaintiff elected to waive
arbitration, HCADRO issued an Order of Transfer of
Plaintiff's case to this Court. ECF Nos. 1-5, 1-6. On
March 14, 2017, the United States filed a partial motion to
dismiss for lack of jurisdiction for certain perceived
deficiencies in the Plaintiff's administrative claim
filed with the Department of the Navy pursuant to the FTCA.
ECF No. 23. In the same motion, the United States urges
dismissal of any claims that are based upon the actions or
omissions of Dr. Perkins or Dr. Thurber because, in the
Government's estimation, the Certificate of Merit filed
pursuant to the Maryland Health Care Malpractice Act does not
reach these doctors. Id.
STANDARD OF REVIEW
Rules 12(b)(1) and (h)(3) of the Federal Rules of Civil
Procedure, the Court must dismiss an action if it discovers
it lacks subject matter jurisdiction. The plaintiff bears the
burden of proving that the Court retains jurisdiction, and
the Court must make all reasonable inferences in the
plaintiff's favor. Khoury v. Meserve, 268
F.Supp.2d 600, 606 (D. Md. 2003). The Court may examine
evidence “beyond the pleadings” to decide whether
subject matter jurisdiction exists without converting the
proceeding to one for summary judgment, but it must presume
that the factual allegations in the complaint are true.
See id.; Evans v. B.F. Perkins Co., a Div. of
Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir.
when ruling on a motion under Rule 12(b)(6), the court must
“accept the well-pled allegations of the complaint as
true, ” and “construe the facts and reasonable
inferences derived therefrom in the light most favorable to
the plaintiff.” Ibarra v. United States, 120
F.3d 472, 474 (4th Cir. 1997). A court may also consider
documents to the complaint as exhibits, see Fed. R.
Civ. P. 10(c), and documents “submitted by the movant
that [were] not attached to or expressly incorporated in a
complaint, so long as the document was integral to the
complaint and there is no dispute about the document's
authenticity.” Goines v. Valley Cmty. Servs.
Bd., 822 F.3d 159, 166 (4th Cir. 2016). “The mere
recital of elements of a cause of action, supported only by
conclusory statements, is not sufficient to survive a motion
made pursuant to Rule 12(b)(6).” Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To
survive a motion to dismiss, a complaint's factual
allegations “must be enough to raise a right to relief
above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal citations omitted).
The FTCA's Notice Requirement
United States first argues that the claims arising from Drs.
Thurber and Perkins' acts or omissions must be dismissed
for lack of subject matter jurisdiction because Plaintiff
provided insufficient notice pursuant to the Federal Tort
Claims Act. Under the FTCA, Congress has waived the United
States' sovereign immunity and subject itself to tort
liability for claims “for money damages . . . for
injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of
his office or employment” when certain conditions are
satisfied. 28 U.S.C. § 1346(b)(1). In exchange for such
waiver of immunity, the FTCA demands, as a “key
jurisdictional prerequisite to filing suit, ” that the
Plaintiff present her administrative claim to the United
States within two years of the incident. Kokotis v. U.S.
Postal Serv., 223 F.3d 275, 278 (4th Cir. 2000). A claim
is presented “when a Federal agency receives from a
claimant . . . an executed Standard Form 95 or other written
notification of an incident.” 28 C.F.R. § 14.2(a).
If the plaintiff fails to exhaust these administrative
remedies, her claim must be dismissed for lack of subject
matter jurisdiction. See Perkins v. United States,
55 F.3d 910, 917 (4th Cir. 1995); Henderson v. United
States, 785 F.2d 121, 123 (4th Cir. 1986).
Fourth Circuit Court of Appeals has explained that notice of
an FTCA claim “must be sufficiently detailed so that
the United States can ‘evaluate its exposure as far as
liability is concerned' . . . [and] must provide a
sufficient factual predicate so that [the] claim can be
investigated.” Drew v. United States, 217 F.3d
193, 198 (4th Cir. 2000) (internal citations and some
internal quotation marks omitted), aff'd en banc by
equally divided court, 231 F.3d 927 (4th Cir. 2000).
However, a claimant need not “provide the agency with a
preview of his or her lawsuit by reciting every possible
theory of recovery . . . or every factual detail that might
be relevant . . . . In short, the amount of information
required is ‘minimal.'” Id. (quoting
Burchfield v. United States, 168 F.3d 1252, 1255
(11th Cir. 1999) (citations and internal quotation marks
the United States argues that Plaintiff's Standard Form
95 is deficient with respect to Drs. Thurber and Perkins
because the Plaintiff did not provide the Agency with notice
that it should assess liability based on the acts of Thurber
and Perkins. See ECF No. 23 at 3. The United States
specifically points to the Agency's acceptance of
Plaintiff's administrative claim as alleging personal
injuries due to the “misrepresentation of
adenocarcinoma.” ECF No. 23-2 at 1. According to the
United States, the language contained within the acceptance
conveys the Agency's understanding that Plaintiff's
claim is a narrow attack on the conduct of Dr. Muir-the
pathologist who misdiagnosed Plaintiff's nodules as
malignant tumors- and not the conduct of Drs. Perkins or
Thurber. See ECF No. 23 at 3-4. The United States
also notes that Plaintiff never attempted to correct that