Gallegos v. Maureen Wood, M.D., Med. Doctor Assocs., LLC, No. CIV 13-1055 JB/KBM

CourtUnited States District Courts. 10th Circuit. District of New Mexico
PartiesTERESSA JANETTE GALLEGOS, Individually and as Personal Representative of the ESTATE OF JOSEPH ORAN WINKLE, Deceased; and MARY ANN VAN WINKLE, Plaintiffs, v. MAUREEN WOOD, M.D., MEDICAL DOCTOR ASSOCIATES, LLC; and the UNITED STATES OF AMERICA, Defendants. consolidated with TERESSA JANETTE GALLEGOS, Individually and as Personal Representative of the ESTATE OF JOSEPH ORAN VAN WINKLE, Deceased; and MARY ANN VAN WINKLE, Plaintiffs, v. MAUREEN WOOD, M.D., and the UNITED STATES OF AMERICA, Defendant.
Docket NumberNo. CIV 13-1055 JB/KBM,No. CIV 15-0184 JB/KBM
Decision Date31 March 2016

TERESSA JANETTE GALLEGOS,
Individually and as Personal Representative of the ESTATE OF JOSEPH ORAN WINKLE,
Deceased; and MARY ANN VAN WINKLE, Plaintiffs,
v.
MAUREEN WOOD, M.D., MEDICAL DOCTOR ASSOCIATES, LLC;
and the UNITED STATES OF AMERICA, Defendants.

consolidated with
TERESSA JANETTE GALLEGOS,
Individually and as Personal Representative of the ESTATE OF JOSEPH ORAN VAN WINKLE,
Deceased; and MARY ANN VAN WINKLE, Plaintiffs,
v.
MAUREEN WOOD, M.D., and the UNITED STATES OF AMERICA, Defendant.

No. CIV 13-1055 JB/KBM
No.
CIV 15-0184 JB/KBM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

March 31, 2016


MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on Defendant United States of America's Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim and Memorandum in Support, filed May 15, 2015 (Doc. 6 in Gallegos v. United States, No. CIV 15-0184 JB/KBM (D.N.M.))("MTD"). The Court held a hearing on October 1, 2015. The primary

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issues are: (i) whether there are private person analogues for Plaintiffs Teressa Janette Gallegos1 and Mary Ann Van Winkle's malpractice and negligence claims against Dr. Christopher Quintana, a fellow2 who failed to advise his attending physician of a positive test result, and an unnamed pharmacist or representative of the pharmacy department ("unnamed pharmacist"), who failed to correct a patient's prescriptions; and (ii) whether the Plaintiffs exhausted their administrative remedies as the Federal Tort Claims Act of 1946, 28 U.S.C. §§ 1346(b), 2671-2680 ("FTCA"), requires. First, the Court concludes that private person analogues exist under New Mexico law for the Plaintiffs' claims against both Dr. Quintana and the unnamed pharmacist. Second, the Court concludes that the Plaintiffs exhausted their administrative remedies by providing sufficient notice of the allegations in their 2013 lawsuit, but not their 2015 lawsuit. The Court will thus grant in part and deny in part the United States' MTD.

FACTUAL BACKGROUND

The Court summarized this case's facts in an earlier opinion. See Gallegos v. Wood, No. CIV 13-1055 JB/KBM, 2015 WL 6393561 (D.N.M. Oct. 1, 2015)(the "October Opinion"). The Court will not repeat all of the facts here, but, rather, will outline only those facts that are relevant to the disposition of the motions before it. The Court takes its facts from the Plaintiffs' Original Complaint for Wrongful Death Damages due to Medical Malpractice, filed March 4, 2015 (Doc. 1 in Gallegos v. United States, No. CIV 15-0184 JB/KBM (D.N.M.))("Complaint"). It accepts as true all non-conclusory factual statements in the Complaint.

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1. The Alleged Medical Malpractice.

On May 7, 2012, Joseph Oran Van Winkle sought treatment for abdominal pain at the Raymond G. Murphy Veterans Affairs Medical Center's Emergency Department in Albuquerque, New Mexico. See Complaint ¶ 3, at 1. Defendant Maureen Wood, M.D., an internal medicine specialist, diagnosed Van Winkle with septic shock3 and admitted him to the hospital's intensive care unit. See Complaint ¶ 4, at 2.

Two other individuals were involved in Van Winkle's care. See Complaint ¶¶ 7-8, at 2. An unnamed VA pharmacist or representative of the pharmacy department (the "unnamed pharmacist") allegedly "accompanied Dr. Wood on her rounds of patients every day." Complaint ¶ 7, at 2. Dr. Christopher Quintana, a fellow assigned to Dr. Wood, assisted her in her treatment of Van Winkle. See Complaint ¶ 8, at 2. Dr. Quintana "was an agent or employee of the United States at all pertinent times." Complaint ¶ 9, at 3.

On May 8, 2012, both of Van Winkle's two blood cultures tested positive for Staphylococcus aureus.4 See Complaint ¶ 5, at 2. The unnamed pharmacist "should have known the results of the culture and that the drugs given to Mr. Van Winkle were not appropriate for his treatment because of the results of the culture," and "should have so advised Dr. Wood." Complaint ¶ 7, at 2. Dr. Quintana received notice from the laboratory that Van Winkle's urine,

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as well as his blood, had tested positive for Staphylococcus aureus. See Complaint ¶ 8, at 2-3. Dr. Quintana failed to advise Dr. Wood of the test result. See Complaint ¶ 8, at 2-3. Van Winkle's medical team did not prescribe or administer Vancomycin,5 "although it would have been appropriately prescribed for him given the nature of his infection." Complaint ¶ 11, at 3. The VA discharged Van Winkle on May 13, 2012. See Complaint ¶ 10, at 3.

Van Winkle's condition continued to deteriorate after his discharge. On about June 5, 2012, he was admitted to the Artesia General Hospital in Artesia, New Mexico, with dehydration and a continued infection. See Complaint ¶ 12, at 3. His treating physician in Artesia, Dr. Jorge Abalos, ordered him to return to the VA. See Complaint ¶ 12, at 3.

On June 12, 2012, physicians at the VA diagnosed Van Winkle with severe right-sided endocarditis.6 The infection resulted in bacterial growth on one of Van Winkle's heart valves and severe damage to his circulatory system. See Complaint ¶ 13, at 3.

Van Winkle died on September 10, 2013. See Complaint ¶ 15, at 3. His daughter, Teressa Janette Gallegos, has since become the Personal Representative of his Estate. See Complaint ¶ 15, at 3.

2. Correspondence.

On April 2, 2013, the Plaintiffs mailed a "Tort Claim" letter to the Office of Regional Counsel of the Department of Veterans Affairs. See Plaintiffs' Letter from Doug Perrin to the

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Department of Veterans Affairs at 1 (dated April 2, 2013), filed October 17, 2014 (Doc. 55-2)("April 2 Letter"). The April 2 Letter explains that the underlying events began on May 7, 2012. April 2 Letter at 1. It describes the course of treatment and the nature and the extent of the injury, and includes a demand for $600,000.00. See April 2 Letter at 1-3. The letter focuses on Dr. Wood's conduct, explaining: "What should have been treated simply and effectively turned into a very complex, dangerous situation, as a result of the negligence of Dr. Wood in misdiagnosis, resulting in improper and inadequate treatment." April 2 Letter at 3. It makes one reference to unidentified "multiple physicians who followed Mr. Van Winkle." April 2 Letter at 2. It uses passive voice, however, to avoid attributing actions to specific individuals. See April 2 Letter at 2-3 ("Zosyn was never ordered nor administrated . . . ."); id. ("Mr. Van Winkle was discharged . . . ."); id. ("Upon discharge, Mr. Van Winkle was given . . . ."). It also includes a list of "witnesses" that includes Van Winkle's family members and over one hundred medical providers who could have been involved in Van Winkle's care. See April 2 Letter at 4 ("Witness List"). The list of medical providers includes "Chris Quintana" and at least one pharmacist. Witness List at 1.

The VA's Office of Regional Counsel replied to this initial claim on June 19, 2013. See Letter from Melinda Frick, Regional Counsel, to Doug Perrin (dated June 19, 2013), filed October 17, 2014 (Doc. 52-3)("First VA Letter"). The First VA Letter states: "Your clients allege Mr. Van Winkle suffered injury as a result of multiple acts of negligence by Dr. Maureen Wood on or about May 2012." First VA Letter at 1. It denies the claim on multiple grounds. See First VA Letter at 1-2. First, it asserts that the FTCA provides compensation "when a Government employee, acting within the scope of employment, injures another by a negligent or wrongful act or omission." First VA Letter at 1. It notes that Dr. Wood was an "independent

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contract physician" and an employee of a separate company, Defendant Medical Doctor Associates, LLC. First VA Letter at 1.

Second, the First VA Letter explains that the VA investigated whether Van Winkle "received good care from his other VA-employed providers." First VA Letter at 1. Its investigation included "a review of medical records; a review of his claim by three physicians in three different medical specialties in three different parts of the country who acted as reviewing experts; and interviews of medical personnel." First VA Letter at 1. The investigation concluded that "there was nothing VA employees acting in the course and scope of their employment . . . did or failed to do that caused any injury to Mr. Van Winkle." First VA Letter at 1-2.

The Plaintiffs7 replied to the VA's First Letter on December 2, 2013. See Plaintiffs' Letter from Doug Perrin to Bonita Ortiz, VA Representational Paralegal at 1 (dated December 2, 2013), filed October 17, 2014 (Doc. 52-4)("December 2 Letter"). The December 2 Letter recites that it was "written to supplement [the April 2] letter," attaches the earlier letter, and incorporates it by reference. December 2 Letter at 1. It states:

We have learned since the April 2, 2013 letter was written, that a pharmacist or representative of the pharmacy department at the VA Hospital in Albuquerque accompanies physicians on their rounds of patients everyday. This means, of course, that a pharmacist should or would have been with Dr. Wood and other treating physicians when Mr. Van Winkle was being seen in rounds in each day. The pharmacist therefore should have known that the drugs being given to Mr. Van Winkle did not properly "match up" with his condition and the pharmacist should have known the results of the culture, and therefore should have known that Mr. Van Winkle was receiving the wrong drugs for his condition.

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December 2 Letter at 1. This individual's failure to spot the problem and warn the treating physicians, the Plaintiffs add, lengthened the time required for a proper diagnosis and thus allowed Van Winkle's condition to worsen. See December 2 Letter at 1.

The Plaintiffs followed up with a one-sentence letter on December 9, 2013, explaining that their "letter of December 2 should be regarded as and is intended as an amendment to the original April 2, 2013 letter." Letter from Doug Perrin to Bonita Ortiz, Office of Regional Counsel...

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