Rosse v. United States

• Citation: 110 F.Supp.3d 415
• Decision Date: 22 May 2015
• Docket Number: No. 1:14–cv–00816 (MAD/RFT).,1:14–cv–00816 (MAD/RFT).
• Parties: Angelo J. ROSSE and Dona M. Rosse, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of New York

110 F.Supp.3d 415

Angelo J. ROSSE and Dona M. Rosse, Plaintiffs,

v.UNITED STATES of America, Defendant.

No. 1:14–cv–00816 (MAD/RFT).

United States District Court, N.D. New York.

Signed May 22, 2015.

Powers & Santola, LLP, Margie A. Soehl, Esq., of Counsel, Albany, NY, for Plaintiffs.

Office of the United States Attorney, James T. Foley U.S. Courthouse, Cathleen B. Clark, AUSA, of Counsel, Albany, NY, for Defendant.

MEMORANDUM–DECISION AND ORDER

MAE A. D'AGOSTINO, District Judge.

I. INTRODUCTION

On July 7, 2014, Angelo J. Rosse and Dona M. Rosse (collectively "Plaintiffs") commenced this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671 –2678, 2680. See Dkt. No. 1. Plaintiffs previously filed a claim for injury with the United States Department for Veterans Affairs ("VA") on May 30, 2013. See Dkt. No. 1–2. In the complaint, Plaintiffs assert claims of medical malpractice contending the following: (1) the United States of America ("Defendant") through its employee, Dr. Nazir A. Memon, failed to treat and/or properly care for Plaintiff Angelo J. Rosse ("Plaintiff"); (2) Defendant through the Albany Stratton VA Medical Center's Clifton Park Community Based Outpatient Clinic ("clinic") failed to protect Plaintiff from Dr. Memon's abusive behavior; (3) Defendant through the clinic negligently supervised Dr. Memon; (4) Defendant through Dr. Memon and other employees did not advise Plaintiff of the risks and dangers of the medical care and treatment and Plaintiff was not able to render informed consent; and (5) Plaintiff Dona M. Rosse, as Plaintiff's spouse, was deprived of the services, society, and companionship of her husband. See Dkt. No. 1. Presently before the Court is Defendant's motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. See Dkt. No. 7.

II. BACKGROUND

Plaintiff is a veteran of the United States Air Force where he worked in food service from 1976 through 1980 and was honorably discharge. See Dkt. No. 8–10 at 10. Plaintiff enrolled and established his primary medical care from the Albany Stratton VA Medical Center's Clifton Park Community Based Outpatient Clinic on May 22, 2006. See Dkt. No. 8–5. At that visit, Plaintiff presented to Dr. Memon with a social history of financial loss and symptoms of depression and significant stress. See id. Dr. Memon ordered a consultation with a plastic surgeon for Plaintiff's concern about a wart, ordered blood tests, and asked Plaintiff to follow up with him in one month. See id. On that same day, Plaintiff was also seen and evaluated by a psychologist for depressive symptoms at Dr. Memon's request, and Plaintiff was asked to follow up with the psychologist in two weeks and given an appointment to meet with a medical provider in psychiatry to discuss antidepressant medications. See id.

At this first appointment in 2006, it is alleged that Dr. Memon asked Plaintiff about landscape work to be done at Dr. Memon's home. See Dkt. No. 8–3 at 3.¹ Thereafter, Plaintiff prepared an in-depth estimate of approximately $7,000 to $8,000. See id. at 3–4. At a subsequent medical appointment in 2006, Dr. Memon told Plaintiff that he was only willing to pay $500 for the work, and Plaintiff declined to perform the work. See id. at 3; Dkt. No. 8–4 at 8, 15. No landscaping work was ever performed by Plaintiff at Dr. Memon's home. See Dkt. No. 8–3 at 9. Plaintiff subsequently testified at the Albany Veterans Administration Medical Center's investigation hearing that he did not believe that he received substandard medical care from Dr. Memon because he did not perform the landscaping work for $500, but his testimony was less certain at a subsequent hearing. See id. at 12; Dkt. No. 8–4 at 14. After that second visit when Dr. Memon told Plaintiff that the estimate was too high, Plaintiff testified that he does not recall Dr. Memon ever bringing up the topic again, stating that "it was done and over with." See Dkt. No. 8–3 at 16. However, Plaintiff claims that Dr. Memon said "I'm very poor, I help you guys out, you help me, you treat me nice, I help you guys out." See id. at 17. Plaintiff believes that these events all took place in 2006. See Dkt. No. 8–4 at 15.

Plaintiffs also claim that when Plaintiff sought treatment for an abscessed boil, Dr. Memon threatened him with "physical violation (i.e., a medically unnecessary rectal exam)." See Dkt. No. 8–1 at 19. The submitted medical records indicate that Dr. Memon treated Plaintiff for an abscess on July 9, 2009 and referred Plaintiff for a surgical consult. See Dkt. No. 8–12 at 25. Plaintiff consulted with a surgeon on July 19, 2009, who found that Plaintiff had a spontaneously-drained, infected sebaceous cyst that did not require excision. See id. at 23–24. The surgeon continued the antibiotics ordered by Dr. Memon and asked Plaintiff to return if needed. See id. at 24.

The allegations that Dr. Memon threatened Plaintiff with a rectal exam and intimidated Plaintiff with landscaping work are the articulated basis for Plaintiffs' claims of intimidation and abuse by Defendant. See Dkt. No. 8–1 at 19. Additionally, Plaintiffs claim that during the period from 2007 through 2008, Plaintiff complained to Dr. Memon of severe neck pain and Dr. Memon refused to order an MRI examination to properly diagnose or treat that condition. See id. According to Plaintiffs, his undiagnosed condition escalated to the point where Plaintiff was hospitalized for five days beginning on June 4, 2009. See id.

Plaintiffs also allege that Dr. Memon failed to properly treat Plaintiff's chronic cough in late 2008 when Dr. Memon advised Plaintiff to take cough medicine. See id. Plaintiffs claim that Dr. Memon's medical treatment was ineffective and inadequate to address the root cause and severity of the cough because the cough worsened, and Dr. Memon's failure to properly treat the cough continued through 2012 when Plaintiff had a severe coughing episode. See id. Plaintiffs claim that all the abuse and "substandard medical care received from Dr. Memon" caused physical pain and suffering, which caused "post-traumatic stress disorder (PTSD) and major depressive disorder (MDD)." See Dkt. No. 8–1 at 20.

Plaintiff continued to seek and received medical treatment from Dr. Memon as a primary care physician from 2006 through 2010. See Dkt. Nos. 8–8, 8–9, 8–10, 8–11, 8–12. Dr. Memon is noted to be Plaintiff's primary care physician of record until April 12, 2012. See Dkt. No. 8–11 at 72–73. On that date, Plaintiff changed primary care physicians to, and underwent a physical examination by, Dr. Lorilyn Cooley. See id. Although Plaintiffs claim that Dr. Memon's treatment was contagious through April 12, 2012, the submitted medical records reflect that Plaintiff had not been seen or examined by Dr. Memon since November 17, 2010. See Dkt. No. 8–11 at 72–73.

Defendant now moves to dismiss Plaintiffs' complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Specifically, Defendant argues the following: (1) Plaintiffs' claims are barred by the Federal Tort Claims Act, 28 U.S.C. § 2401(b), requiring a plaintiff to file his or her claim with the requisite agency within two years from the date of accrual; (2) Defendant did not waive sovereign immunity for Plaintiffs' allegations of intentional torts under 28 U.S.C. § 2680(h) ; and (3) the alleged conduct by Dr. Memon relating to landscaping work was outside the scope of Dr. Memon's employment with the VA and, therefore, sovereign immunity was not waived.See Dkt. No. 7.

III. DISCUSSION

A. Federal Tort Claims Act

To be sure, " ‘[t]he United States, as sovereign, is immune from suit save as it consents to be sued,’ and hence may be sued only to the extent that it has waived sovereign immunity by enacting a statute consenting to suit." Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d Cir.1998) (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941) ). " ‘[T]he terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.’ " See Millares Guiraldes de Tineo, 137 F.3d at 719 (quoting Sherwood, 312 U.S. at 586, 61 S.Ct. 767 ). "Any limitations imposed by the waiver statute, whether they be substantive, procedural, or temporal, are to be strictly applied against the claimant." Millares Guiraldes de Tineo, 137 F.3d at 719 ; see also United States v. Kubrick, 444 U.S. 111, 117–18, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (stating that the courts should neither extend nor narrow Congress' waiver of sovereign immunity).

The FTCA empowers the federal district courts with the "exclusive jurisdiction of civil actions on claims against the United States, for money damages, ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government." 28 U.S.C. § 1346(b)(1). For there to be liability, the employee's act must have taken place "while acting within the scope of his [or her] 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." See id. Recovery for any claim arising out of assault and battery, among other listed intentional torts, is specifically excluded under the FTCA. See 28 U.S.C. § 2680(h). These civil actions for money damages for injuries can not be instituted "unless the claimant shall have first presented the claim to the appropriate Federal agency and his [or her] claim shall have been finally denied by the agency." See 28 U.S.C. § 2675(a). Further, the claim will "be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing ... of notice of final denial of the...