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Fraiser v. United States

United States District Court, D. Maryland

May 2, 2017

RUBY N. FRAISER, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          Paula Xinis United States District Judge.

         Pending 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.

         I. BACKGROUND

         On 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 adenocarcinoma. Id.

         This 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.

         On May 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.

         II. STANDARD OF REVIEW

         Under 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. 1999).

         Alternatively, 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).

         III. ANALYSIS

         A. The FTCA's Notice Requirement

         The 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).

         The 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 omitted)).

         Here, 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 ...


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