Lauer v. United States
| Decision Date | 12 February 2013 |
| Docket Number | CIVIL CASE NO. 1:12cv41 |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | JAMES J. LAUER, Plaintiff, v. UNITED STATES OF AMERICA, Defendants. |
THIS MATTER is before the Court on the Defendant's Motion to Dismiss [Doc. 3].
Pursuant to 28 U.S.C. § 636(b) and the Standing Orders of Designation of this Court, United States Magistrate Judge Dennis L. Howell was designated to consider the motion and to submit recommendations for its disposition.
On August 16, 2012, the Magistrate Judge filed a Memorandum and Recommendation in which he recommended granting the motion. [Doc. 7]. After receiving an extension of time, the Plaintiff timely filed Objections tothat recommendation. [Doc. 10; Doc. 11]. The Defendant has filed a Response to the Plaintiff's Objections and the matter is ripe for review.
The Plaintiff initiated this action on February 28, 2012 alleging a claim for medical malpractice pursuant to the Federal Torts Claims Act (FTCA). [Doc. 1]. The Plaintiff, who is a veteran, had a left knee replacement performed on June 1, 2009 at the Veterans Affairs Medical Center (VAMC) in Buncombe County, North Carolina. [Id.]. The Plaintiff claims that during that surgery VAMC staff failed to properly place and support his left arm resulting in injury to his ulnar nerve at the elbow. [Id. at 2]. Medical staff at the VAMC thereafter recommended left ulnar nerve decompression surgery to relieve the pain symptoms. [Id. at 3]. That surgery was performed in July 2009 but was not completely successful. [Id.]. By the end of September 2009, one of the treating physicians noted ulnar nerve parestheasias with increasing pain in the left elbow. [Id.]. The Plaintiff had a MRI study done in December 2009 which revealed a thickening which enveloped the nerve. [Id. at 4]. Another left ulnar nerve decompression and transposition was performed at the VAMC in February 2010. [Id.]. By March 2011, the Plaintiff still experienced chronic pain and he received adiagnosis of "Chronic medial epicondylitis and ulnar nerve damage from entrapment syndrome and first failed surgery. 2nd surgery helped but not enough." [Id.]. In May 2011, the Plaintiff was examined by a private physician, not employed at the VAMC, who diagnosed a chronic pain disorder of the left elbow arising from his left elbow injury which would require continued treatment for pain. [Id. at 5].
The Plaintiff alleged in the Complaint that Dr. Mary Ann Wolf Curl (Curl), Chief of Staff at the VAMC, admitted in August 2010 that the damage to his left ulnar nerve had occurred during his knee replacement surgery due to improper support and placement of his arm by staff during the surgery. [Id. at 5-6]. It is undisputed that the Plaintiff's claim is limited to medical malpractice pursuant to the FTCA for a deviation from the applicable standard of care. [Id. at 7-8].
The Defendant moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). [Doc. 3]. The motion is predicated on the Plaintiff's failure to meet the mandatory pre-filing certification requirements of Rule 9(j) of the North Carolina General Statutes 1A-1 (Rule 9(j)). [Doc. 4].
A district court reviews specific objections to a Memorandum andRecommendation under a de novo standard. 28 U.S.C. §636(b). "Parties filing objections must specifically identify those findings objected to." Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir.1987), overruled on other grounds Douglass v. United Services Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996). If a party makes only general objections, de novo review is not required. Wells v. Shriners Hospital, 109 F.3d 198, 200 (4th Cir. 1997)(boilerplate objections will not avoid the consequences of failing to object altogether). "Section 636(b)(1) does not countenance a form of generalized objection to cover all issues addressed by the magistrate judge; it contemplates that a party's objection to a magistrate judge's report be specific and particularized, as the statute directs the district court to review only those portions of the report or specified proposed findings or recommendations to which objection is made." United States v. Midgette, 478 F.3d 616, 621 (4th Cir.), cert. denied 551 U.S. 1157, 127 S.Ct. 3032, 168 L.Ed.2d 749 (2007) (emphasis in original). Likewise, merely reiterating the same arguments made in the pleading submitted to the Magistrate Judge does not warrant de novo review. Id.; Veney v. Astrue, 539 F.Supp.2d 841, 846 (W.D.Va. 2008). "Allowing a litigant to obtain de novo review of [his] entire case by merely reformatting an earlierbrief as an objection 'mak[es] the initial reference to the magistrate useless.'" Id. In order "to preserve for appeal an issue in a magistrate judge's report, a party must object to the finding or recommendation on that issue with sufficient specificity so as reasonably to alert the district court of the true ground for the objection." Midgette, 478 F.3d at 622.
And, where a party asserts claims in the objections which were not asserted in support of or in opposition to the motion, de novo review is not warranted. Price v. Dixon, 961 F.Supp. 894 (E.D.N.C. 1997)(claims cannot be raised for the first time in objections to a memorandum and recommendation).
The Court first notes that the Plaintiff has not objected to the Magistrate Judge's recitation of the factual background or the standard of review applicable to a motion to dismiss pursuant to Rule 12(b)(6). Having reviewed the same, the Court finds his recitation is factually and legally correct and adopts it.
Plaintiff's objection to the application of Rule 9(j).
Rule 9(j) provides that any complaint alleging medical malpractice must contain an assertion that the records and medical care involved in thealleged incident have been reviewed by a medical expert who is willing to testify that the medical care did not comply with the applicable standard of care. The Magistrate Judge concluded that Rule 9(j) applies to cases brought pursuant to the FTCA and it is to this conclusion that the Plaintiff objects.
The FTCA provides a limited waiver of the United States' sovereign immunity for personal injury caused by the negligent act or omission of an employee of the federal government while acting within the scope of his employment "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. §§1346(b)(1) & 2674 (emphasis provided). Section 2674 "makes clear, in conjunction with the jurisdictional grant over FTCA cases in 28 U.S.C. §1346(b), the extent of the United States' liability under the FTCA is generally determined by reference to state law." Molzof v. United States, 502 U.S. 301, 305, 112 S.Ct. 711 (1992). Anderson v.United States, 669 F.3d 161, 164 (4th Cir. 2011) (emphasis provided).
North Carolina law requires that any complaint alleging medical malpractice contain the pre-filing certification of a medical expert. N.C. Gen. Stat. 1A-1, Rule 9(j). There is no such requirement under the FTCA; however, as noted above, that statute only waives sovereign immunity if the claim could be brought under the substantive law of North Carolina. 28 U.S.C. §1346(b)(1). Citing Erie Railroad Company v. Thompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the Plaintiff argues that Rule 9(j) is a procedural, as opposed to substantive, requirement of North Carolina law and, thus, applying it here violates the Erie doctrine.1 In deciding whether a rule of law should be procedural or substantive, the question is whether it would "significantly affect the result of a litigation for a federal court to disregard a law of a State that would be controlling in an action upon the same claim by the same parties in a State court." Barnes v. Seigler, 2012 WL 265409 **2 (D.S.C. 2012) (quoting Hanna v. Plumer, 380 U.S. 460, 465, 85 S.Ct. 1135, 14 L.Ed.2d 8 (1965)) (applying South Carolina pre-filingcertification rule for malpractice claim as substantive rule).
North Carolina courts have found compliance with Rule 9(j) is a substantive element of a medical malpractice claim because the plaintiff must prove, among other elements, the standard of care owed by the defendant and a breach thereof. Camalier v. Jeffries, 340 N.C. 699, 460 S.E.2d 133 (1995) ().
Rowell v. Bowling, 197 N.C.App. 691, 695, 678 S.E.2d 748 (2009) (quoting Barringer v. Wake Forest University Baptist Medical Center, 197 N.C.App. 238, 255, 677 S.E.2d 465, review denied 363 N.C. 651, 684 S.E.2d 690 (2009)). This language, followed in subsequent North Carolina cases,shows that the factual allegation that the medical care does not meet...
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