Carter v. United States
| Decision Date | 24 May 2022 |
| Docket Number | Civil Action ELH-21-1315 |
| Parties | RYAN G. CARTER, et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Maryland |
Plaintiffs Ryan G. Carter and his wife, Kathleen E. Cole, have filed a tort suit against the United States of America (the “Government”) (ECF 1), “pursuant to and in compliance with” the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. and the “National Defense Authorization Act” (“NDAA”), 10 U.S.C. § 2733 et seq Id. ¶ 17.[1] The suit stems from cervical spine surgery performed on Carter at Walter Reed National Military Medical Center (“Walter Reed”) on April 6, 2018. Tragically, the surgery left Carter with life altering substantial, and permanent injuries. See ECF 1 ¶¶ 24-39.
Plaintiffs lodge three counts against the Government: “Medical Negligence” (Count I); “Loss of Consortium” (Count II); and “Informed Consent” (Count III). See ECF 1, ¶¶ 45-62. The Complaint is supported by numerous exhibits. ECF 2-3 to ECF 2-17.[2]
The Government has moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) (ECF 18), supported by a memorandum (ECF 18-1) (collectively, the “Motion”) and numerous exhibits. ECF 18-2 to ECF 18-9. According to the Government, the suit is barred by the doctrine first articulated by the Supreme Court in Feres v. United States, 340 U.S. 135 (1950).
Plaintiffs oppose the Motion. ECF 21 (the “Opposition”). The Government has replied (ECF 28, the “Reply”), supported by additional exhibits. ECF 28-1 to ECF 28-7.
No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I am compelled to grant the Motion.
In April 2018, Carter was a 43-year-old Air National Guard Staff Sergeant. ECF 1, ¶ 23.[4]He is married to Cole. Id. ¶ 9. Carter enlisted in the Maryland Air National Guard and the Air National Guard of the United States in 2009. ECF 18-2 (Decl. of Bernard E. Doyle, Associate General Counsel, National Guard Bureau), ¶ 5.[5] “The Air National Guard of the United States is a Reserve Component of the United States Air Force.” Id.
Carter attended “initial active duty training, ” which is “commonly known as ‘basic training, '” in February and March 2010, at Lackland Air Force Base in San Antonio, Texas. Id. ¶ 6; see ECF 18-4 (). Between April and November 2010, Carter also completed “‘technical school' training” at Kessler Air Force Base in Biloxi, Mississippi, and Sheppard Air Force Base in Wichita Falls, Texas. ECF 18-2, ¶ 7; see ECF 18-4; ECF 18-5; ECF 18-6; ECF 18-7 (training orders).
According to the Complaint, as of April 2018, Carter had “a medical history that included degenerative cervical disk disease, chronic neck pain, difficulty with fine motor skills, as well as numbness and tingling in his fingers.” ECF 1, ¶ 23. The Complaint does not include any allegations as to the origin of Carter's medical conditions. But, materials submitted by the Government reflect that Carter's medical conditions derived, at least in part, from injuries he sustained during basic training. Doyle avers: ECF 18-2, ¶ 7. Carter does not contest the government's assertions.
Similarly, according to Charles P. Franz, Jr., the Associate General Counsel for the Defense Health Agency (“DHA”), Carter “sustained injuries after falling from a pull-up bar during his basic training.” ECF 18-9 (Franz Decl.), ¶ 5.[6] “Since that fall, TSgt Carter has reported a progression of steadily worsening symptoms, including chronic back pain in his leg, back, shoulder and neck, increased difficulties with fine motor skills, and reoccurring numbness and tingling in his fingers and other extremities.” Id. ¶ 6.
Carter continuously sought and received care for “these and other symptoms” from Walter Reed and other military hospitals and medical providers. Id. ¶ 7. Walter Reed, previously known as the “National Naval Medical Center, ” is located in Bethesda, Maryland, and is a “military hospital or treatment facility” managed by the DHA, a “combat support agency within” the Department of Defense (“DoD”). Id. ¶ 2. Beginning in May 2015, Carter was seen and evaluated at Walter Reed for these symptoms, and was diagnosed by Walter Reed physicians with “cervical spondylotic myelopathy.” Id. ¶ 8.[7]
An order submitted with the Complaint reflects that Carter was activated to active duty status for the period from August 27, 2017, to March 27, 2018, for service with the 175th Wing of the Maryland Air National Guard in support of “Operation Freedom's Sentinel.” ECF 2-16 (the March 23, 2018 Order) at 2.[8] This period was later shortened to end on March 13, 2018. Id. According to the order (id. at 2), the legal authority for this activation was 10 U.S.C. § 12301(d), which provides: “At any time, an authority designated by the Secretary concerned may order a member of a reserve component under his jurisdiction to active duty, or retain him on active duty, with the consent of that member.”
Colonel Joed I. Carbonell of the United States Air Force was Carter's commanding officer for Carter's active duty tour that began in August 2017. ECF 28-1 (Carbonell Decl.), ¶ 2. Materials included by the Government with the Reply, including a Declaration by Carbonell, provide more details as to Carter's active duty service.
Carbonell avers: “In August 2017, I issued the special orders, which activated SSgt Carter to active duty with the [Maryland Air National Guard 276 Cyberspace Operations] Squadron to perform duties, pursuant to 10 U.S.C. § 12301(D), in support of Operation Freedoms SE [sic].” Id. ¶ 7.[9] As noted, the active duty period originally was from August 27, 2017, to March 27, 2018, but the end date was later changed to March 13, 2018. See ECF 2-16; ECF 28-2; ECF 28-3; ECF 28-4 (orders). During this period, Carter worked under Carbonell's command “as a Cyber Operations Planner supporting Air Forces Cyber and the Cyber National Mission Force.” ECF 28-1, ¶ 8.
According to Carbonell, in 2017 Carter was “assigned to a position as a military technician (dual status).” Id. ¶ 6. “Military technicians (dual status) are full-time, federal civilian employees whose employment is conditioned on maintaining their military position in the National Guard.” Id. As a dual status military technician, Carter was required to maintain membership in the Maryland Air National Guard, meaning he was obligated to attend “inactive duty training one weekend a month as well as two weeks of annual training a year.” Id.; see also 32 U.S.C. § 502 (specifying National Guard training requirements); 32 U.S.C. § 709 ().
Carbonell avers that he “was aware that SSgt Carter sought and received medical care as an active duty service member from [Walter Reed] during [Carter's service in the unit, from August 27, 2017, to March 13, 2018], for a spinal injury that he sustained while in basic training.” ECF 28-1, ¶ 8.
According to Franz, during an evaluation of Carter at Walter Reed on or around March 1, 2018, “it was recommended” to Carter that he undergo surgery “in order to alleviate and prevent the worsening of the pain, radiculopathy, and other symptoms he was experiencing in his neck.” ECF 18-9, ¶ 9. On or about April 6, 2018, Carter “presented” to Walter Reed “for anterior cervical discectomy and fusion (‘ACDF') surgery in connection with a diagnosis of cervical spondylotic myelopathy.” ECF 1, ¶ 24.[10]
The surgery was performed by Bradley A. Dengler, M.D., “with general endotracheal tube anesthesia administered and monitored by the anesthesia team.” ECF 1, ¶ 25.[11] Plaintiffs allege that “[i]ntraoperatively, the procedure was complicated by a loss and/or depression in neurophysiological signals during the negligent placement of a trial spacer at the C4/5 level.” Id. ¶ 27. After the discectomy, Carter awoke from anesthesia and was “unable to move his extremities.” Id. ¶ 28. ECF 1, ¶ 29. Given these “T2 hypersensitivities, ” Carter “underwent a posterior C3-6 laminectomy and fusion that same day.” Id. ¶ 30. This second procedure was likewise recommended and performed by Dr. Dengler. Id.
“Postoperatively Mr. Carter was transferred to the Surgical ICU, intubated and sedated, and with persistent motor and sensory deficits.” Id. ¶ 31. Upon admission, he was reported to have an “ASIA A spinal cord injury with a motor score of two.” Id. ¶ 32. “In the hours and days that followed, Mr. Carter underwent examination and testing, including CT, MRI, and ultrasound imaging to determine the cause, nature, and extent of his diminished postoperative neurological function and pain.” Id. ¶ 33. A postoperative MRI showed “‘persistent severe spinal canal stenosis from C3-C5' indicating that the surgery was unsuccessful.” Id. ¶ 34. Carter was monitored at the Walter Reed Surgical ICU for approximately three weeks after the surgery, where he also underwent wound care, physical therapy, recreational therapy, and occupational therapy. Id. ¶ 37; see also ECF 18-9, ¶ 13. However, his hospital treatment was “complicated” by “a left upper extremity deep vein thrombosis (“DVT”) for which he was initially anticoagulated with heparin and later transitioned to Lovenox (enoxaparin).” ECF 1, ¶...
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