Va. L. Willever v. U.S.

Decision Date04 March 2011
Docket NumberCase No. RWT 09cv3072.
Citation775 F.Supp.2d 771
PartiesVirginia L. WILLEVER, et al., Plaintiffs,v.UNITED STATES of America, Defendant.
CourtU.S. District Court — District of Massachusetts

OPINION TEXT STARTS HERE

J. Philip Kessel, Edward L. Norwind, Murray D. Scheel, Karp Frosh Lapidus Wigodsky and Norwind PA, Rockville, MD, for Plaintiffs.Neil R. White, Office of the United States Attorney, Greenbelt, MD, Jamie Lynn Hoxie, US Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROGER W. TITUS, District Judge.

Plaintiff Virginia Willever and her children (collectively the Willevers) brought this Federal Tort Claims Act action in 2009, alleging that the death of Virginia Willever's husband, Captain Edward Willever, was the result of the negligence of the staff of the National Naval Medical Center (“NNMC”). Three days before the conclusion of discovery, which included the depositions of experts for both sides, the Willevers moved for partial summary judgment on the issue of liability, arguing that the United States is precluded from contesting liability because it failed to file a certificate and report of a qualified expert with the Maryland Health Care Alternative Dispute Resolution Office, as required by the Maryland Health Care Malpractice Claims Act (“HCMCA”). The issue was fully briefed and the Court held a hearing on January 3, 2011. For the reasons stated below, the Willevers' motion will be denied.

BACKGROUND FACTS

Captain Edward Willever underwent a four-vessel bypass surgery and left lower lung partial resection at the NNMC in Bethesda, Maryland on May 13, 2008. Compl. ¶ 13. Captain Willever was a fully monitored patient in the Cardiac step unit on May 17, 2008. Id. ¶ 14. At 5:13 a.m. that day, Captain Willever was apparently in normal sinus rhythm. Id. However, at 5:30 a.m., Captain Willever was found on the floor of his room in full cardiac arrest. Id. Captain Willever was apparently off his cardiac monitor for at least seventeen minutes without “an appropriate response by the medical staff.” Id. Captain Willever was resuscitated after his cardiac arrest, but died on May 18, 2008. The Willevers claim that the medical staff's failure to investigate Captain Willever's status for the seventeen minutes between 5:13 and 5:30 a.m. was negligent and caused his death. Id. ¶ 16. The United States contests liability in this action, and asserts that NNMC employees did not deviate from standards of care in Captain Willever's treatment and that any deviation from standards of care did not cause Captain Willever's death. Def.'s Answer, ECF No. 6.

PROCEDURAL HISTORY

On January 6, 2009, Virginia Willever filed an administrative claim with the Department of the Navy pursuant to 28 U.S.C. §§ 2401(b) 1 and 2675.2 Compl. ¶ 3. The Department of the Navy did not make a final disposition of her claim within six months of its filing, and Virginia Willever chose to deem this inaction to be a final denial of her claim, pursuant to 28 U.S.C. § 2675. Id. ¶ 4.

On October 16, 2009, the Willevers filed with the Maryland Health Care Alternative Dispute Resolution Office (the “Office”) a Certificate of Qualified Expert and attached report, wherein the Willevers' expert opined that NNMC employees' deviations from standards of care caused Captain Willever's death. Pls.' Mot. for Summ. Judg., Ex. 1–3. The Willevers simultaneously filed an election of waiver of arbitration and both the waiver and the certificate with attached report were served on the United States on November 6, 2009. Id. Ex. 4. The Office entered an order transferring this action to this Court on October 28, 2009. Id. Ex. 5.

On November 17, 2009, Virginia Willever, Captain Willever's widow, filed a two count complaint in this Court on behalf of herself and her children against the United States under the Federal Tort Claims Act. ECF No. 1. The complaint was served on the United States on the same day. Count I asserts a wrongful death claim while Count II asserts a survival action and seeks compensatory damages for Captain Willever's conscious pain and suffering, anxiety and fright prior to death, together with reimbursement for medical and funeral expenses and lost income. Id. at 6–7.

On January 28, 2010, the United States answered the complaint. ECF No. 6. The Court issued a scheduling order on February 1, 2010, which set a deadline of April 2, 2010 for the disclosure of the Willevers' Rule 26(a)(2) experts, and a deadline of May 3, 2010 for the disclosure of the United States' Rule 26(a)(2) experts. ECF No. 7. On February 25, 2010, the Court modified the Scheduling Order such that the Willevers' expert disclosures were due on May 20, 2010, and the United States' Rule 26(a)(2) expert disclosures were due on July 20, 2010. ECF No. 13.

The United States never filed a certificate of a qualified expert with attached report with the Office attesting to NNMC employees' compliance with standards of care, or attesting that any departure from standards of care was not the proximate cause of Captain Willever's death. However, the parties filed their expert reports consistent with the Amended Scheduling Order, and proceeded to depose each others' experts. See Consent Motion to Amend Scheduling Order, at 1. ECF No. 21. Discovery concluded on November 1, 2010.

According to the Willevers' calculations, the United States' certificate and report of a qualified expert were due to be filed on March 6, 2010, 120 days following service of the Willevers' certificate and report on the United States. Pls.' Mot. for Summ. Judg. at 3. As a result, the Willevers contend that they are entitled to partial summary judgment on the issue of liability due to the United States' failure to file an expert certificate and report with the Maryland Health Care Alternative Dispute Resolution Office. ECF No. 28.

ANALYSIS
I.

Summary judgment is proper if there are no issues of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 302 (4th Cir.2006). A material fact is one that “might affect the outcome of the suit under the governing law.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir.2001) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A dispute of material fact is only “genuine” if sufficient evidence favoring the non-moving party exists for the trier of fact to return a verdict for that party. Anderson, 477 U.S. at 248–49, 106 S.Ct. 2505. However, the nonmoving party “cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1986). “A party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts showing that there is a genuine issue for trial.’ Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)).

The Court may only rely on facts supported in the record, not simply assertions in the pleadings, in order to fulfill its “affirmative obligation ... to prevent ‘factually unsupported claims and defenses' from proceeding to trial.” Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987) (citing Celotex, 477 U.S. at 323–24, 106 S.Ct. 2548). When ruling on a motion for summary judgment, [t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (emphasis added).

II.

The United States “is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define the court's jurisdiction to entertain the suit.” United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (citing United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). “The Federal Tort Claims Act is a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment.” U.S. v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). The Federal Tort Claims Act (“FTCA”) is to be narrowly construed against waivers of sovereign immunity. Id. at 813–14, 96 S.Ct. 1971.

Pursuant to 28 U.S.C. § 1346(b)(1):

the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, 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 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.

(Emphasis added).

Under the FTCA, “the United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances ...” 28 U.S.C. § 2674. Claims for wrongful death as a result of the medical malpractice of a United States government employee can therefore be brought under the FTCA.

As a condition precedent to bringing a tort claim against the United States under the FTCA, a plaintiff must first submit his claim to the appropriate federal agency and engage in a federal administrative claims procedure. See 28 U.S.C. § 2675. Only after the federal agency has denied the claim, or after six months have elapsed since the filing of the...

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