United States District Court, D. Maryland
MARK COULSON, UNITED STATES MAGISTRATE JUDGE
Delaine MacDonald and Neal Kringel bring this case against
the United States of America under the Federal Tort Claims
Act, (“FTCA”) 28 U.S.C. §§ 2671-2680,
for alleged medical malpractice. (ECF No. 1). The parties
consented to proceed before a magistrate judge pursuant to 28
U.S.C. § 636(c) and Local Rule 301.4. (ECF Nos. 43 and
54). Trial is set to begin this week on February 28, 2019.
(ECF No. 59). On February 21, 2019, the Government submitted
a letter to the Court detailing its belief that the Court is
without subject matter jurisdiction as to the Plaintiffs'
second count for loss of consortium. (ECF No. 61). The Court
ordered an expedited briefing schedule to place the issue
squarely before the Court prior to trial. (ECF No. 62). Now
pending is the Government's Motion to Dismiss for Lack of
Jurisdiction as to Count II. (ECF No. 64). The Court has
reviewed Plaintiffs' opposition, ECF No. 65, the Reply,
ECF No. 66, and finds that no hearing is necessary.
See Loc. R. 105.6 (D. Md. 2018). For the reasons
below, the motion is DENIED.
short, this is a medical malpractice case brought forward
under the FTCA. (ECF No. 1). On December 17, 2013, Ms.
Macdonald underwent a carpal tunnel release surgery at the
Kimbrough Ambulatory Care Center at Fort Meade. (Id.
at ¶ 10). The surgery was conducted by LTC Leon Nesti,
M.D. and LCDR Reed M. Heckert, M.D., both employees of the
Government at the time. (Id.). Plaintiffs allege
that the partial laceration of Ms. MacDonald's median
nerve violated the standard of care. (Id. at
attempts to repair the alleged damage, Ms. MacDonald
continued to experience chronic pain and limitations.
(Id. at ¶¶ 15-16). On January 9, 2015, Ms.
MacDonald, and her husband, Mr. Kringel submitted separate
Standard Forms 95 - Claim for Damage, Injury, or Death
(“Form 95”). The Form 95s included the same claim
that briefly details the surgery, the alleged injury, and
requests $500, 000 in damages. (ECF No. 64-2 at 4-11). The
only differences between the two separately filed Form 95s
are the identifiers of the claimants, Ms. MacDonald having
civilian employment, and Mr. Kringel qualifying descriptions
of the incident as happening to his wife. (Id. at 5
and 9). The Government received the SF-15s on March 16, 2015.
11, 2016, the Department of the Army, while disagreeing that
negligence occurred, invited Plaintiffs to submit expert
medical opinion for further consideration. (ECF No. 64-2 at
13-15). Following an exchange of opinions, the Army denied
the Plaintiffs' administrative claims. (Id. at
19-20). Consequently, this suit was filed on March 30, 2017
for two counts - negligence and loss of consortium. (ECF No.
before the Court is the Government's motion to dismiss
the loss of consortium count for lack of subject matter
jurisdiction. (ECF No. 64). Put simply, the Government argues
that because neither Form 95 expressly raised a claim for
loss of consortium the Plaintiffs failed to exhaust
administrative remedies for the claim, depriving this Court
of subject matter jurisdiction. (Id. at 11).
Plaintiffs argue that the exact opposite is true in that,
under the FTCA, a claim is sufficiently advanced if it
provides adequate notice to enable the agency to investigate
and consider settlement. (ECF No. 65 at 3-4). They argue that
the Form 95s and investigations that followed adequately gave
notice that Mr. Kringel would be pursuing a loss of
consortium claim based on the injury to his wife.
(Id. at 5-8). The Court agrees with the Plaintiffs.
STANDARD OF REVIEW
Federal Rule 12(b)(1) motion “for lack of subject
matter jurisdiction challenges a court's authority to
hear the matter brought by a complaint.” Chambliss
v. Carefirst, Inc, 189 F.Supp.3d 564, 568 (D. Md. 2016).
The court must dismiss a case or count whenever it lacks
subject matter jurisdiction. Lovern v. Edwards, 190
F.3d 648, 654 (4th Cir. 1999). Although most efficiently
determined at the outset of a case, the question of subject
matter jurisdiction may be raised at any time. Id.
of subject matter jurisdiction is asserted either as facial
challenges-i.e.the allegations of the complaint do not
establish jurisdiction, or factual challenges, in “that
the jurisdictional allegations of the complaint [are] not
true.” Chambliss, 189 F.Supp.3d at 568
(quoting Kerns v. United States, 585 F.3d 187, 192
(4th Cir. 2009)). Where the challenge is factual, the court
may consider any relevant evidence to decide disputed issues
of fact with respect to subject matter jurisdiction.
Id. This, however, does not then convert “the
proceeding to one for summary judgment.” Velasco v.
Gov't of Indon., 370 F.3d 392, 398 (4th Cir. 2004)).
Nevertheless, the plaintiff(s) must establish “that
jurisdiction does, in fact, exist.” Lovern,
190 F.3d at 654.
FTCA permits district courts to hear claims for
“personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government .
. . .” 28 U.S.C. § 1346(b)(1). With exceptions,
the FTCA allows for the Government to be liable “in the
same manner and to the same extent as a private individual
under like circumstances.” 28 U.S.C. § 2674. One
such exception requires any claim to first be presented to
the appropriate federal agency. 28 U.S.C. § 2675. The
regulations “promulgated pursuant to the FTCA provide
that a claim is presented ‘when a Federal agency
receives from a claimant . . . an executed Standard Form 95
or other written notification of an incident, accompanied by
a claim for money damages in a sum certain for injury to or
loss of property, personal injury, or death.'”
Ahmed v. United States, 30 F.3d 514, 516 (4th Cir.
1994) (quoting 28 C.F.R. § 14.2(a)). Congress requires
administrative exhaustion “to ease court congestion and
avoid unnecessary litigation, while making it possible for
the Government to expedite the fair settlement of tort claims
asserted against the United States.” S. Rep. No. 1327,
89th Cong., 2d Sess. 2 (1966) (“S.Rep.”),
reprinted in 1966 U.S.C.C.A.N. 2515, 2516. This
procedure is designed to bring the claimants' allegations
to the immediate attention of the relevant agency to protect
“the [Government] from the expense of needless
litigation, give it an opportunity for investigation, and
allow it to adjust differences and settle claims without
suit.” S. Rep. at 7; 1966 U.S.C.C.A.N. at 2517.
Fourth Circuit has interpreted this requirement to mean that
a “claimant meets his burden if the notice (1) is
sufficient to enable the agency to investigate and (2) places
a sum certain value on her claim.” Ahmed, 30
F.3d at 516-17 (internal quotations omitted). In applying the
Fourth Circuit's interpretation this Court has concluded
that “exhaustion requires that the claim, but not
necessarily the claimant or the theory of recovery, be
presented to the agency.” Glover v. United
States, 996 F.Supp.2d 372, 377 (D. Md. 2014) (citing
Chang-Williams v. United States, 965 F.Supp.2d 673,
699 (D. Md. 2013) and Munger v. United States, 116
F.Supp.2d 672, 676 (D. Md. 2000).
Government contends that the standard of notice requires that
separate and distinct counts, such a count of loss of
consortium arising from a count for negligence, be expressly
raised in both spouses' Form 95s. (ECF No. 64-1). Because
the Government was never expressly given notice of any loss
of consortium claim that could arise from the incident, the
exhaustion requirement was not satisfied, and therefore count
should be dismissed. (Id.). Plaintiffs, on the other
hand, argue that there is no such requirement that the claim
expressly articulate loss ...