Hannah v. United States

• Decision Date: 11 January 2022
• Docket Number: 7:20-cv-662
• Court: U.S. District Court — Western District of Virginia
• Parties: MADISON B. HANNAH, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

MADISON B. HANNAH, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

No. 7:20-cv-662

United States District Court, W.D. Virginia, Roanoke Division

January 11, 2022

MEMORANDUM OPINION

Michael F. Urbanski, Chief United States District Judge

This matter is before the court on the United States' motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), ECF No. 15, and plaintiff Madison B Hannah's motion to strike several exhibits and all extraneous materials outside of the pleadings included in the United States' brief in support of its motion to dismiss ECF No. 24. For the following reasons, the court DENIES the motion to dismiss Count I, alleging medical malpractice GRANTS the motion to dismiss Count II, alleging negligent retention, and DENIES the motion to strike certain exhibits.

I.

Plaintiff Madison B. Hannah is a former student of Craig County High School and was a student at the time of the alleged events. Compl., ECF No. 1, at ¶ 16. The United States, through the Department of Health and Human Services, operates federally qualified health centers, one of which is Monroe Health Center (“MHC”). Pursuant to the Federally Supported Health Centers Assistance Act, MHC is deemed a federal government entity, and its employees are deemed federal government employees for purposes of claims brought under the Federal Tort Claims Act (“FTCA”) pursuant to 42 U.S.C. § 233(g)-(n). Craig County High School entered into an agreement with MHC to provide free sports physicals for students. Compl. at ¶ 9. Raschid Ghoorahoo was a family nurse practitioner hired by MHC in November or December 2017. Id. at ¶ 14.

In 2017, Hannah received her sports physical, which as a student athlete she had done many times before, from a female physician. See id. at ¶ 17. On May 2, 2018, Hannah went to the MHC for her sports physical and was seated in a waiting room where a nurse took her vital signs. Shortly afterward, Ghoorahoo introduced himself to Hannah as a doctor and accompanied her to his office near the back of the building. Id. at ¶ 19. There was no nurse present in Ghoorahoo's office, and the door was closed. Id. at ¶ 20.

Hannah alleges that during the physical examination, Ghoorahoo placed the stethoscope under her bra and began massaging her breast with his fingers. He continued to fondle her breast several times. Id. In years prior, Hannah had never had a healthcare provider put the stethoscope underneath her clothes. Id. at ¶ 21. Hannah alleges that Ghoorahoo did not perform other customary procedures, including checking her rotator cuffs or reflexes. Id. The only other thing Ghoorahoo did was to have Hannah bend over to check her spine. Ghoorahoo ran his fingers up and down her spine for an unusually long amount of time. Id. at ¶ 22.

Ghoorahoo called Hannah's mother and stated that during the examination he was checking for an undiagnosed heart murmur and would refer Hannah for further testing. He also stated that it was unlikely that Hannah had the heart murmur.

On May 11, 2018, Hannah's mother called the site manager for the Wellness Center and reported that her daughter “felt very, very uncomfortable [when Ghoorahoo] spent a long period [of] time examining her in and around her chest/breasts area [while] attempting to find a heart murmur [because] no female was also present for the examination ....” Incident Report, ECF No. 16-7, at 1. The site manager then reported the incident to MHC officials. Ghoorahoo was removed from patient care pending an internal investigation. ECF No. 16-8.

On December 19, 2019, Hannah's mother filed an administrative claim with the Department of Health and Human Services, detailing the incident with Ghoorahoo. See Admin. Claim, ECF No. 16-14. On May 26, 2020, the Department of Health and Human Services denied said claim.

On November 10, 2020, Hannah brought suit under the FTCA, alleging medical malpractice (Count I) and negligent retention (Count II), asserting that MHC breached its duty when it knew, and failed to take action, that Ghoorahoo was (1) employed with various clinics prior to MHC for a short period of time; (2) introduced himself to patients as a doctor; (3) spent prolonged amounts of time with patients; and (4) conducted exams on women without a female nurse present. The government opposed, filing a motion to dismiss. ECF No. 15. Hannah also filed a motion to strike extraneous exhibits and documents attached to the government's motion to dismiss. ECF No. 24. The court heard argument, and the matters are ripe for resolution.

II.

“A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) addresses whether the court has subject-matter jurisdiction to hear the dispute.” Ledford v. Eastern Band of Cherokee Indians, No. 1:20-cv-5-MR-WCM, 2020 WL 6693133, at *1 (W.D. N.C. Nov. 12, 2020), affd as modified, 845 Fed.Appx. 260 (4th Cir. 2021); see also Fed. R. Civ. P. 12(b)(1). Subject-matter jurisdiction may be challenged as a facial or factual attack. Hutton v. Nat'l Bd. of Exam'rs in Optometry, Inc., 892 F.3d 613, 621 n.7 (4th Cir. 2018); Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). In a facial challenge, the defendant asserts that the facts alleged in the complaint are insufficient for the court to exercise subject-matter jurisdiction. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). As such, the court must assume the facts alleged are true. Id.

However, in a factual challenge, the defendant attacks the veracity of the facts alleged and argues “that the jurisdictional allegations of the complaint [are] not true.” Wells v. Artrip, No. 1:16-cv-41, 2017 WL 1788385, at *2 (W.D. Va. May 3, 2017). Under a factual challenge, the “district court may then go beyond the allegations of the complaint and resolve the jurisdictional facts in dispute by considering evidence outside the pleadings . . ., ” U.S. ex rel Vuyyuru v. Jadhav, 555 F.3d 337, 348 (4th Cir. 2009), but this does not convert the motion into a summary judgment proceeding, Kerns, 585 F.3d at 192. Moreover, when the defendant brings a factual challenge, “the presumption of truthfulness normally accorded a complaint's allegations does not apply . . . .” Id. “If, however, the jurisdictional facts are intertwined with the facts central to the merits of the complaint, ‘a presumption of truthfulness should attach to the plaintiff s allegations.'” Rich v. United States, 811 F.3d 140, 145 (4th Cir. 2015) (citing Kerns, 585 F.3d at 193).

In sum, for factual challenges, a Rule 12(b)(1) motion should only be granted when “the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Richmond, Fredericksburg & Potomac R.R. Co., 945 F.2d 765, 768 (4th Cir. 1991). The plaintiff bears the burden of proving jurisdiction by a preponderance of evidence regardless of whether the challenge is facial or factual. Jadhav, 555 F.3d at 347-48; Richmond, 945 F.2d at 768; Bradford v. Mattis, No. 3:18-cv-570-HEH, 2018 WL 6834360, at *2 (E.D. Va. Dec. 28, 2018).

III.

In its motion, the United States asserts that the court lacks jurisdiction over Counts I and II because:

1. If Plaintiff's allegations are true for purposes of this Motion, the nurse practitioner, Raschid A. Ghoorahoo, was not acting within the scope of his employment;

2. Although veiled as negligence, Plaintiff actually alleges an intentional tort, and the intentional tort exception to the FTCA, 28 U.S.C. § 2680(h), bars the lawsuit;

3. Plaintiff did not exhaust administrative remedies on her medical malpractice claim; and

4. The United States is immune from suit for the negligent retention claim under the discretionary function exception in 28 U.S.C. § 2680(a).

Def. Br. in Supp. of Mot. to Dismiss, ECF No. 16, at 1. The court will address each argument in turn.

A. The issue of sovereign immunity turns on Ghoorahoo's scope of employment, which cannot be resolved on the pleadings.

Because the United States is a sovereign, it is immune from suit unless it consents to be sued. Criscione v. U.S. Nuclear Regul. Comm'n, 493 F.Supp.3d 423, 429 (D. Md. 2020). Its immunity extends to agencies and instrumentalities of a state. Regents of Univ. of California v. Doe, 519 U.S. 425, 429 (1997); McCray v. Maryland Dept. of Transp., Maryland Transit Admin., 741 F.3d 480, 483 (4th Cir. 2014). Sovereign immunity “deprives federal courts of jurisdiction to hear claims, and a court finding that a party is entitled to sovereign immunity must dismiss the action for lack of subject-matter jurisdiction.” Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 649 (4th Cir. 2018) (internal quotations omitted). The defendant bears the burden of showing sovereign immunity. Hutto v. South Carolina Ret. Sys., 773 F.3d 536, 543 (4th Cir. 2014).

In order for a suit to proceed against the United States, there must be an explicit waiver of sovereign immunity, Lehman v. Nakshian, 453 U.S. 156, 160-61 (1981), “and the waiver must be established by the statute itself[, ]” Criscione, 493 F.Supp.3d at 430; Lane v. Pena, 518 U.S. 187, 192 (1996). Absent an explicit waiver, courts must strictly construe the statute in favor of the sovereign “in the absence of a clear statement from the United States waiving sovereign immunity.” Criscione, 493 F.Supp.3d at 430; Sossamon v. Texas, 563 U.S. 277, 290 (2011).

Pursuant to 28 U.S.C. § 1346(b), the United States waives sovereign immunity for claims:

(1) against the United States; (2) for money damages, . . . (3) for injury or loss of property, or personal injury or death; (4) caused by the negligent or wrongful act or omission of any employee of the Government; (5) while acting within the scope of his office or employment; and (6) under circumstances where the

...