David C. Belton, Plaintiff, v. United States of America, Defendant.
Civil Action No. 3:15-1456-MBS
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION
July 20, 2016
Margaret B. Seymour, Senior United States District Judge
This matter is before the court on Defendant United States of America’s (“Defendant’s”) Motion to Dismiss and Amended Motion to Dismiss the Complaint pursuant to
I. Background
On April 1, 2015, Plaintiff David C. Belton (“Plaintiff”) brought the within action against Defendant pursuant to the Federal Tort Claims Act (“FTCA” or “the Act”),
On August 10, 2015, Plaintiff filed a Motion for Reconsideration pursuant to
On November 16, 2015, Plaintiff filed its Amended Complaint alleging three informed consent claims and a fourth claim as follows:
- That the VA deviated from the standard of care in its treatment of the plaintiff and was negligent and reckless in the care and treatment in the following particulars:
- In failing to disclose that a risk of the ablation procedure including the risk that the plaintiff could suffer a paralyzed diaphragm;
- In failing to obtain a valid informed consent from the plaintiff;
- In failing to tell the plaintiff anything about Dr. Savoca or his training, experience and qualifications; and
- In failing to promptly diagnose and commence proper treatment of the plaintiff’s paralyzed diaphragm and in
exposing the plaintiff to unnecessary and useless medical care for some six months until a correct diagnosis was made by the VA doctors.
ECF No. 24 at ¶ 9.
On December 18, 2015, Defendant filed an Amended Motion to Dismiss for Lack of Jurisdiction. ECF No. 26. Defendant argued that the Form SF95 did not provide adequate notice for the informed consent claims (ECF No. 24 at ¶9a-c) presented in the Amended Complaint. Id. On January 7, 2016, Plaintiff responded by alleging that Defendant did not provide information about the adequacy of notice and Defendant failed to fully participate in the period of limited discovery. ECF No. 27. At a hearing on March 21, 2016, the court held the Amended Motion to Dismiss in abeyance and ordered Defendant to respond to Plaintiff’s interrogatories. ECF No. 31. On May 6, 2016, Plaintiff submitted a supplement to the Amended Motion to Dismiss, notifying the court that Plaintiff was withdrawing his lack of informed consent claims. ECF No. 34.
On June 14, 2016, the court issued a text order instructing the parties to submit supplemental briefing addressing the scope of the VA’s investigation and whether Plaintiff’s Form SF95 provided adequate notice to Defendant. ECF No. 37. On June 22, 2016, Defendant responded with a detailed argument informing the court that the Form SF95 did not provide adequate notice for the informed consent claims presented in Plaintiff’s Amended Complaint. ECF No. 38. By response filed on July 1, 2016, Plaintiff reiterated that he had withdrawn all of his informed consent claims. Plaintiff noted that Defendant did not argue that the allegations in the Form SF95 were insufficient notice as to Plaintiff’s remaining claim against Defendant for failing to promptly diagnose and commence treatment of Plaintiff’s paralyzed diaphragm and exposing Plaintiff to unnecessary and useless medical care. ECF No. 39. On July 11, 2016, Defendant replied that the Form SF95 did not provide notice of any other claim. ECF No. 40.
A. Legal Standard for Rule 12(b)(1) Motion to Dismiss
Defendant moves under
B. Legal Standard for the FTCA Immunity
The FTCA waives the sovereign immunity of the United States with respect to tort claims, rendering the United States “liable . . . in the same manner and to the same extent as a private individual under like circumstances.”
“[Section] 2675(a) is jurisdictional in nature and cannot be waived. However, while section 2675(a) establishes the jurisdictional limitation of the FTCA, federal regulations outline certain criteria for filing claims under the FTCA.” Dawson ex rel. Estate of Dawson v. United States, 333 F. Supp. 2d 488, 494 (D.S.C. 2004). “The majority view is that an administrative claim conforms to these criteria so long as it provides written notice sufficient to enable the relevant agency to investigate the claim and respond either by settlement or by defense.” Id. “[N]otice must do more than cause the government to sift through the record. Rather, notice must be sufficiently detailed so that the United States can evaluate its exposure as far as liability is concerned. Therefore, in addition to requiring a sum certain, a claimant must also provide a sufficient factual predicate so that his claim can be investigated.” Richland-Lexington Airport Dist. v. Atlas Properties, Inc., 854 F. Supp. 400, 412 (D.S.C. 1994) (citations and quotations omitted).
III. Discussion
Plaintiff was required to file with the administrative agency “(1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim.” See Ahmed v. United States, 30 F.3d 514, 517 (4th Cir. 1994) (citation omitted). Here, Plaintiff’s Form SF95 reads as follows, verbatim:
The VA discovered I had a spot on my liver. Dr. Gueogui Mouratiev, my Doctor at the VA, recommended that I have the spot ablated and the VA arranged for the ablation to be done at Palmetto Health Richland. On information and belief, the ablation was performed by Stephanie S. King. Upon information and belief, Dr. King, in performing the ablation, burned through my liver and
injured my right diaphragm, causing me to suffer a paralyzed diaphragm on my right. Since her ablation, I have suffered much with respiratory problems.
ECF No. 38-1.
Defendant contends that the allegations in the Form SF95 do not align with those in the Proposed Amended Complaint, and that this is grounds to find lack of jurisdiction. At length Defendant has argued that the Form SF95 did not provide notice about the now dismissed informed consent claims. As for the remaining claim for failing to promptly diagnose and commence treatment of Plaintiff’s paralyzed diaphragm and exposing Plaintiff to unnecessary and useless medical care, Defendant holds that the Form SF95 did not provide “any notice of any other claim” and the VA’s investigation “determined said claims to be insufficient.” ECF No. 40 at 1. Defendant attached the declaration of Melinda Perritano, former regional counsel of the VA, to highlight that after the “investigation of and [her] review of Mr. Belton’s claim (SF 95), [she] did not find that at any time he raised issues as to [the] VA’s care or actions such as informed consent or delay in diagnosis of his paralyzed diaphragm.” ECF No. 40-2 at 2.
Plaintiff counters that Defendant has not made a successful argument as to why the Form SF95 was insufficient to allow the VA to evaluate its liability for the claim presented in paragraph 9(d) of the Amended Complaint. ECF No. 38. Plaintiff argues that Defendant has not offered sufficient evidence as to what the VA did in evaluating the administrative claim. Id.
The court disagrees. Having considered the Form SF95, the arguments and statements of counsel, and the declaration of Melinda Perritano about the scope of the VA’s internal investigation, it appears to the court that the VA did not receive sufficient notice to investigate whether it would be liable for the claim presented in paragraph 9(d) of the Amended Complaint. Plaintiff’s Form SF95 detailed Plaintiff’s initial consultation at the VA, his transfer to the care of
IV. Conclusion
For the reasons stated herein, Defendant’s Amended Motion to Dismiss for Lack of Subject Matter Jurisdiction Motion, ECF No. 26, is GRANTED. Defendant’s Motion to Dismiss for Lack of Jurisdiction, ECF No. 8, is DENIED as Moot.
IT IS SO ORDERED.
/s/ Margaret B. Seymour
Margaret B. Seymour
Senior United States District Judge
Columbia, SC
Dated: July 19, 2016