Clutter-Johnson v. United States

• Decision Date: 13 March 2017
• Docket Number: Civil Action No. 1:16–04041
• Parties: Melissa CLUTTER–JOHNSON, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of West Virginia

242 F.Supp.3d 477

Melissa CLUTTER–JOHNSON, Plaintiff,

v.UNITED STATES of America, Defendant.

Civil Action No. 1:16–04041

United States District Court, S.D. West Virginia, at Bluefield.

Signed March 13, 2017

David B. Lunsford, Mark R. Staun, Robert Dean Hartley, Hartley Law Group, Wheeling, WV, for Plaintiff.

Matthew C. Lindsay, U.S. Attorney's Office, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

David A. Faber, Senior United States District Judge

I. INTRODUCTION

This is a medical malpractice case filed against the United States by Plaintiff Melissa Clutter–Johnson under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq . Plaintiff's case falls into two parts: First, she claims that doctors, for whom the United States was responsible, negligently inserted a Mirena® intrauterine device ("IUD") on September 29, 2009, that resulted in her becoming pregnant with twins in September 2012. The parties agree that this is a claim for wrongful pregnancy as opposed to wrongful birth. Plaintiff also maintains that she was damaged by the failure of her doctors to locate and remove the IUD during her delivery by Cesarean section of twin daughters on May 10, 2013, and during further medical treatment and surgeries that resulted from failure to remove the IUD.

The United States has moved for dismissal of the wrongful pregnancy count under Rule 12 of the Federal Rules of Civil Procedure or, in the alternative, for summary judgment under Rule 56. The United States contends that Plaintiff's wrongful pregnancy claim is barred by the applicable statute of limitations, 28 U.S.C. § 2401(b). The United States agrees that the remaining claim is not time-barred.

For the reasons discussed below, the motion for summary judgment is granted with regard to the claim for wrongful birth.

II. FACTUAL BACKGROUND

Plaintiff, Melissa Clutter–Johnson, had a Mirena® IUD implanted¹ on September 28, 2009 as a means of birth control. See Doc. No. 1. The procedure took place at Community Health Systems, Inc., d/b/a Access Health–OB–GYN ("Access Health"), a federally-funded medical facility in Beckley, West Virginia. Id . When properly placed, the IUD prevents pregnancy for five years. According to Plaintiff, a nurse twice attempted to insert the IUD. After the nurse was unsuccessful, Dr. Marcia A. Khalil and/or another nurse then inserted the IUD. Id .

In September 2012, three years after the placement of the IUD, Plaintiff became pregnant with twin daughters. Id . She returned to Access Health on October 24, 2012, where Dr. Gina Jereza–Harris attempted to remove the IUD. Dr. Jereza–Harris was unsuccessful and informed Plaintiff that if the IUD were not removed, then Plaintiff faced a 50% risk of pregnancy loss in the second trimester. Id . On November 14, 2012, Plaintiff received an MRI at Webster County Memorial Hospital and had a consultation with Dr. David Chaffin at Cabell Huntington Hospital on Dr. Jereza–Harris' referral. Id . Dr. Chaffin determined that the IUD was not embedded and, as a result, might become dislodged on its own. Id . Specifically, Dr. Chaffin's consultation notes from the November 14, 2012, appointment contain the following statement:

The location of the IUD entirely within the cervical canal, associated with the extreme difficulty with attempts at removal (breaking strings twice) leads me to conclude that the IUD was placed ONLY within the canal initially and that the arms of the IUD had no opportunity to extend. Now, attempts at removal result[ ] in the arms extending and preventing removal. However, this also suggests that the IUD has not become embedded and if cervical dilation occurs the IUD may actually fall out.

See Doc. No. 1. The remainder of Plaintiff's pregnancy was uneventful. Id . She gave birth to twin girls by Cesarean section on May 10, 2013. Id . Drs. Khalil and Jereza–Harris performed the cesarean section and again attempted to remove the IUD but were unable to do so. Id . A few days after birth, it became apparent that one of the twin children, G.E.J., suffers from congenital defects. Id . According to Plaintiff, G.E.J. has Duane Syndrome, congenital scoliosis, ventricular septal defect, and cranial nerve defect. Id . She has had and will continue to require numerous surgeries and other medical treatment. Id . Her sister, I.A.J., appears to be a healthy child without birth defects. Id .

Plaintiff herself has also undergone additional medical treatment related to the IUD. Id . A number of other doctors attempted to remove the IUD but, like the doctors at Access Health, were either unable to locate or to extricate the IUD. Id . In December 2014, a year and a half after Plaintiff gave birth to her twin daughters, she underwent surgery at Princeton Community Hospital and the IUD was removed successfully. Id . Plaintiff filed a claim before the appropriate administrator, the United States Department of Health and Human Services ("HHS"), on May 8, 2015, see Doc. No. 8, and thereby invoked her administrative remedies. Her administrative claim was denied on December 28, 2015. This civil action followed on April 28, 2016.

III. APPLICABLE LEGAL STANDARDS

A. Motion to Dismiss For Failure to State a Claim

"The purpose of a Rule 12(b)(6) motion is to test the [legal] sufficiency of a complaint; importantly, [a Rule 12(b)(6) motion] does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Edwards v. City of Goldsboro , 178 F.3d 231, 243–44 (4th Cir. 1999) (citations and internal quotation marks omitted). A Rule 12(b)(6) defense asserts that even if all the factual allegations in a complaint are true, they still remain insufficient to establish a cause of action. This court is also mindful that "[w]hether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim depends on whether the allegations in the complaint suffice to establish that ground, not on the nature of the ground in the abstract." Jones v. Bock , 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).

Related to this, Federal Rule of Civil Procedure 8(a)(2) requires that "a pleading ... contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.’ " Ashcroft v. Iqbal , 556 U.S. 662, 677–78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Fed. R. Civ. P. 8(a)(2) ). The purpose of Rule 8(a)(2) is to ensure that "the defendant [receives] fair notice of what the ... claim is and the grounds upon which it rests." Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A plaintiff must allege " ‘enough facts to state a claim to relief that is plausible on its face’ " and " ‘raise a right to relief above the speculative level.’ " Wahi v. Charleston Area Med. Ctr., Inc. , 562 F.3d 599, 615 n.26 (4th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

The United States Supreme Court has maintained that "[w]hile a complaint ... does not need detailed factual allegations, ... a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citations and internal quotation marks omitted). The court need not "accept as true unwarranted inferences, unreasonable conclusions, or arguments." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd P'ship , 213 F.3d 175, 180 (4th Cir. 2000). Courts must also take care to avoid confusing the veracity or even accuracy underlying the allegations that a plaintiff has leveled against a defendant with the allegations' likelihood of success. While "the pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action," 5 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1216, pp. 235–236 (3d ed. 2004), "assum[ing]" of course "that all the allegations in the complaint are true (even if doubtful in fact)," Twombly , 550 U.S. at 555, 127 S.Ct. 1955, it is also the case that " Rule 12(b)(6) does not countenance ... dismissals based on a judge's disbelief of a complaint's factual allegations." Neitzke v. Williams , 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Therefore, courts must allow a well-pleaded complaint to proceed even if it is obvious "that a recovery is very remote and unlikely." Scheuer v. Rhodes , 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

B. Summary Judgment

Rule 12(d) of the Federal Rules of Civil Procedure requires the court to treat a motion to dismiss as one for summary judgment when matters outside the pleadings are presented to and not excluded by the court. Here, Plaintiff has submitted an affidavit that the court has considered. Therefore, Defendant's motion to dismiss must be treated as a motion for summary judgment.

A motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If there clearly exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment for the movant is unavailable. Anderson , 477 U.S. at 250, 106 S.Ct. 2505 ; see also Pulliam Inv. Co. v. Cameo Properties , 810 F.2d 1282, 1286 (4th Cir. 1987) ; Morrison v. Nissan Motor Co. , 601 F.2d 139, 141 (4th Cir. 1979). The movant bears the burden of showing that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c) ; Catawba Indian Tribe of South Carolina v. South Carolina , 978 F.2d 1334, 1339 (4th Cir. ...