McKinley v. United States, Civil Action No. 5:15-CV-101
| Decision Date | 06 October 2015 |
| Docket Number | Civil Action No. 5:15-CV-101 |
| Court | U.S. District Court — Middle District of Georgia |
| Parties | MARY JO MCKINLEY, Individually and as Administrator of the Estate of HOWARD MCKINLEY, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. |
This case is before the Court on Defendant's Motion to Dismiss (Doc. 5), Defendant's Motion to Dismiss Plaintiff's First Amended and Recast Complaint (Doc. 13), and Plaintiff's Motion for Extension of Time to File Good Faith Certificate (Doc. 12). For the reasons discussed herein, Defendant's Motion to Dismiss and Motion to Dismiss Plaintiff's First Amended and Recast Complaint are denied, and Plaintiff's Motion for Extension of Time to File Good Faith Certificate is therefore moot.
This is a negligence action brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b)(1) (2013) and 28 U.S.C. §§ 2671-80 (2000). Plaintiff commenced this action individually and as the administrator of the estateof her now-deceased husband, Howard McKinley. Plaintiff is seeking compensation for damages resulting from the death of Mr. McKinley.
Plaintiff alleges that Mr. McKinley died as a result of the negligence of various personnel at the United States Department of Veterans Affairs' ("VA") Tennessee Valley Healthcare System ("TVHCS") in Nashville, Tennessee. Plaintiff has attached to her Complaint the Affidavit of Marianne Barnhill, M.D., who is of the opinion that the physicians at TVHCS failed to adhere to the standard of care generally employed in the medical profession under similar or like circumstances. Dr. Barnhill is a medical doctor licensed to practice in the State of Louisiana.
Mr. McKinley was first seen at TVHCS on July 29, 2010, after an emergency room visit for an episode of gross hematuria (blood in his urine). Following a diagnosis of bladder cancer, Mr. McKinley underwent a series of tests, operations, and chemotherapy. His second round of chemotherapy concluded on November 22, 2011, and Mr. McKinley was assured by his physicians at TVHCS that he no longer had bladder cancer.
However, on December 20, 2011, a routine CT scan of Mr. McKinley's abdomen and pelvis showed a "new bladder mass consistent with clinical diagnosis of carcinoma." Pl.'s First Am. and Recast Compl. ¶ 21. Following the CT scan, Mr. McKinley underwent a cystoscopy in early January during which his " " Pl.'s First Am. and Recast Compl. ¶ 23. Mr. McKinley underwent a second cystoscopy in early February. The operative findings noted that there were "'no obvious bladder tumors,'" although "'anatomy of bladder neck makes it such that it is impossible to see the dome and posterior portion of the bladder with rigid scope.'" Pl.'s First Am. and Recast Compl. ¶ 25.
Despite the concerns raised in these tests and procedures, Plaintiff alleges that the physicians at TVHCS did nothing to treat Mr. McKinley's clearly present and growing bladder cancer, and in fact assured Plaintiff and Mr. McKinley that he no longer had bladder cancer. Mr. McKinley continued to experience grossly bloody urine. On May 31, 2012, Mr. McKinley presented for a routine cystoscopy, and doctors noted their inability to visualize the right uretal orifice due to swelling. Again, Plaintiff alleges that the doctors ignored these symptoms, did nothing to treat Mr. McKinley's bladder cancer, and continued to reassure Plaintiff and Mr. McKinley that Mr. McKinley was cancer-free.
In July 2012, Plaintiff and Mr. McKinley relocated to Bibb County, Georgia. Mr. McKinley visited the Dublin, Georgia VA hospital to establish primary care on August 28, 2012. During this visit, Mr. McKinley told his physician that his bloody urination persisted. He was referred to a non-VA urologist, and an appointment was scheduled for October, 2012. On September 13, 2012, Mr. McKinley returned to the Dublin VA due to continued bloody urination and the onset of low blood pressure. While hospitalized, Mr. McKinley underwent an abdominal andpelvic CT scan at the direction of a urologist, which revealed findings consistent with advanced bladder cancer and metastatic disease.
Mr. McKinley's diagnosis was confirmed after he underwent tumor removal surgery on October 1, 2012. A large necrotic tumor was removed, and pathology results revealed malignancy. Despite aggressive chemotherapy and radiation, Mr. McKinley's cancer worsened, spreading to his brain and eventually killing him on September 21, 2013. Mr. McKinley died at his home in Georgia.
Plaintiff initially presented her claims to the VA for wrongful death, medical expense, pre-death pain and suffering, loss of consortium, and ordinary negligence. The VA denied her claims initially and on appeal. Plaintiff filed this lawsuit on March 20, 2015, just over one month after her request for reconsideration was denied.
Defendant has moved the Court to dismiss Plaintiff's Complaint and First Amended and Recast Complaint. Defendant first argues that Plaintiff's claims should be dismissed because she failed to comply with Tennessee's certificate of good faith requirement for medical malpractice claims, pursuant to Tenn. Code Ann. § 29-26-122(a) (2012), and failed to disclose the number of prior violations of Tenn. Code Ann. § 29-26-122(d)(4). Defendant also argues that Plaintiff's claims are barred by Tennessee's medical malpractice statute of repose, and therefore should be dismissed.
In response, Plaintiff argues that Tennessee substantive law is inapplicable in this case, and therefore compliance with Tennessee's certificate of good faith requirement, violation disclosure requirement, and statute of repose is not required. In the alternative, Plaintiff argues that Tenn. Code Ann. § 29-26-122 is preempted by the Federal Rules of Civil Procedure and that Tennessee's medical malpractice statute of repose is preempted by the time limitations prescribed by Congress in the FTCA. Finally, Plaintiff argues that, if Tennessee's statute of repose is relevant, the period was tolled due to concealment on the part of the TVHCS physicians, and therefore the complaint was filed within the prescribed time.
Plaintiff has also filed a Motion for Extension of Time to File Good Faith Certificate and Brief in Support Thereof, which the Court need not consider because Defendant's motions are denied.
A motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCP") tests the facial sufficiency of the complaint. When considering a Rule 12(b)(6) motion to dismiss, the Court must accept as true all facts set forth in the plaintiff's complaint. Speaker v. U.S. Dep't of Health and Human Services, 623 F.3d 1371, 1379 (11th Cir. 2010); Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995). The Court is not to decide whether plaintiff will ultimately prevail but rather, whether she is entitledto offer evidence to support her claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-55 (2007).
A motion to dismiss for lack of subject matter jurisdiction, filed pursuant to FRCP 12(b)(1), "may either attack the claim of jurisdiction on its face or it can attack the factual basis of jurisdiction." Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2005); see also Garcia v. Copenhaver, Bell & Associates, M.D.'s, P.A., 104 F.3d 1256, 1260-61 (11th Cir. 1997). A factual attack, which Defendant makes in its motions, is "not a challenge to the sufficiency of the pleading's allegations, but a challenge to the factual existence of subject matter jurisdiction." United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994); see also Garcia, 104 F.3d at 1261.
The FTCA is a statutory scheme that removes the sovereign immunity of the United States from suits in tort, with certain specific exceptions. Richards v. United States, 369 U.S. 1, 6 (1962). The statute renders the Government liable in the same capacity that an individual would be under like circumstances. Id. Specifically, the FTCA provides that the United States may be held liable for damages for "personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or 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).
The statutory scheme was intended to build upon the legal relationships formulated and characterized by the states, rather than to operate with complete independence. Richards, 369 U.S. at 6-7. This is clear from the statute's express statement that the law of the state "where the act or omission occurred" controls. 28 U.S.C. §1346(b)(1).
The Court will first examine whether Tennessee or Georgia substantive law applies in evaluating the sufficiency of Plaintiff's allegations. Next, the Court will examine whether the FTCA's pleading requirements and time limitations preempt state statutes that materially alter the requirements FTCA claimants must meet.
At this stage of the litigation, a critical issue is whether Georgia or Tennessee substantive law governs the rights and liabilities of the parties in this case. Particularly relevant are the pleading requirements and statutes of repose for medical malpractice suits in these two states. Plaintiff argues that a choice of law analysis should control this determination, while Defendant maintains that a choice of law analysis is inapplicable on the facts alleged.
A choice of law...
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