Vickers v. United States, 1:20 CV 92 MR WCM
| Decision Date | 06 May 2021 |
| Docket Number | 1:20 CV 92 MR WCM |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | KATHERINE MONICA VICKERS, ESTATE OF KATHERINE MONICA VICKERS, and RUPA VICKERS RUSSE, individually and as Executor of the Estate of Katherine Monica Vickers, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. |
MEMORANDUM AND RECOMMENDATION
This matter is before the Court on the United States' Motion to Dismiss (Doc. 21). The Motion has been referred to the undersigned pursuant to 28 U.S.C. § 636, is fully briefed, and is ripe for ruling. See Docs. 22, 24 & 25.[1]
On July 16, 2020, Rupa Vickers Russe ("Russe") filed a Complaint against the United States of America (the "United States") arising out of the medical treatment and subsequent death of her mother, Katherine Monica Vickers ("Ms. Vickers"). Doc. 1. The Plaintiffs are purported to be: (1) Ms. Vickers! (2) Ms. Vickers' Estate! and (3) Russe, both in her individual capacity and as the Executor of Ms. Vickers' Estate. See Doc. 7-2 at 1. It is alleged that Russe also previously acted as an attorney-in-fact for Ms. Vickers pursuant to a Healthcare Power of Attorney. Doc. 1 at ¶3.
On January 6, 2021, the United States filed the Motion to Dismiss. Doc. 21. Plaintiffs filed a response, and the United States replied. Docs. 24 & 25.
The Complaint describes medical care that Ms. Vickers, who was a veteran of the armed services, received from 1993 until her death on October 16, 2018.
1. VA Medical Center—Washington, DC
Beginning in 1993, Ms. Vickers was treated at the Veterans Administration ("VA") Medical Center in Washington, DC. Doc. 1 at ¶27. While Ms. Vickers was there, a January 2002 CT of her brain showed "cortical atrophy," and MRIs taken in April and October 2003 showed "an area of concern." Doc. 1 at ¶¶ 40, 54-55, 56. 2. Charles George VA Medical Center—Asheville, NC
In December 2006, Ms. Vickers moved to Asheville, North Carolina, and began receiving her primary care locally at the Charles George VA Medical Center ("CGVAMC"). Doc. 1 at ¶30.
Dr. Sarala Rajkumar was Ms. Vickers' primary care physician from December 13, 2006 through approximately February 2, 2008. Doc. 1 at ¶ 42.
Ms. Vickers then apparently moved to Virginia, and later returned to Asheville. She began receiving primary care at CGVAMC on approximately July 16, 2012. Doc. 1 at ¶ 32. Dr. Lara Hume began treating Ms. Vickers as her primary care physician at CGVAMC at that time and continued treating her until Ms. Vickers' death in 2018. Doc. 1 at ¶46.
On April 2, 2015, Ms. Vickers called Dr. Hume to request a neurology consult, Doc. 1 at ¶51, though it does not appear that a consult was actually scheduled.
On July 19, 2017, Russe called 911 as Ms. Vickers was experiencing symptoms of "acute delirium, headache, vomiting, a seizure, and attempts at drinking her own vomit." Doc. 1 at ¶¶34 & 36. Ms. Vickers was not taken to the hospital at that time, see Doc. 1 at ¶36; however, her symptoms continued and Russe brought Ms. Vickers to the CGVAMC emergency room on July 21, 2017. Doc. ¶34. A CT scan taken on that date showed a "large heterogeneous mass" and Ms. Vickers was "diagnosed in the [CGVAMC] ER" as having a large mass "that occupied much of her brain." Doc. 1 at ¶ 37. Additionally, by "at least" this date, Ms. Vickers was "designated a high fall risk." Doc. 1 at ¶ 86.
3. Care by Additional Providers
Plaintiffs allege that from approximately July 25, 2017 through the date of her death on October 16, 2018 Ms. Vickers received "primary care from a coordinated effort" between the CGVAMC and the VA Medical Center in Durham, North Carolina. Doc. 1 at ¶ 33. However, she "elected to have her neurooncology care provided by the Duke Robert Tisch Cancer Center...." Doc. 1 at ¶ 39.
With respect to Ms. Vickers' primary care at the VA Medical Center in Durham, Plaintiffs allege that Ms. Vickers was noted as being "independent" (rather than a fall risk), and that on September 13, 2017, during an appointment at the Durham facility, a "Resident" asked Ms. Vickers if she could walk, and that although Ms. Vickers responded, "I think I can," she "stood and attempted to take one step toward the door, and promptly her leg gave out and she fell to the floor." Doc. 1 at ¶ 91. Ms. Vickers was taken to the emergency room at the Durham VA, but no healthcare provider explained that Ms. Vickers was at risk for hematoma. Doc 1 at ¶ 95. Upon returning home and discovering a large, painful hematoma, Ms. Vickers returned to the emergency room in Durham to obtain a pain prescription. Doc. 1 at ¶ 96.
However, Ms. Vickers suffered "immense physical pain for six hours." Doc. 1 at ¶97.
With respect to her cancer treatment, Plaintiffs allege that:
4. Placement in a Nursing Home
"Ms. Vickers required extensive physical support" and was placed in various residential facilities "[a]t different times from July 2017 through October 16, 2018." Doc 1 at ¶66. For example, she was placed at Madison Health and Rehab Center for an unspecified time, though her "mental behaviors became difficult" to manage, and Ms. Vickers was not allowed to return to that facility. Doc. 1 at ¶¶ 74-75.
Anthony Smalls, a CGVAMC social worker, informed Russe that there was an in-house long-term care option for Ms. Vickers on the CGVAMC campus, but he discouraged Russe from allowing Ms. Vickers to be placed there "solely because she was a woman" and "stated Ms. Vickers' 'safety' would be at risk." Doc. 1 at ¶78. Instead, Ms. Vickers was placed by Smalls at Pruitt Health, a "3 star" facility in Raleigh, on July 25, 2018. Doc. 1 at ¶¶ 66 & 80.
On October 16, 2018 at 3:45 a.m., Ms. Vickers was discovered as being non-responsive. Doc. 1 at ¶81. She died less than three (3) hours later. Id.
Plaintiffs seek compensatory and punitive damages from the United States based on the following claims:
See Doc. 1 at 1198-135.
A motion to dismiss made pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure addresses whether the court has subject-matter jurisdiction to hear the dispute. See Fed.R.Civ.P. 12(b)(1). A dismissal for lack of subject matter jurisdiction should be without prejudice, since in such a context the court is unable to reach the merits of the case. See Southern Walk at Broadlands Homeowner's Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013)
When a defendant makes a facial challenge to subject matter jurisdiction, "the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges facts sufficient to invoke subject matter jurisdiction." Kerns v. United States. 585 F.3d 187, 192 (4th Cir.2009).[3] The plaintiff has the burden of proving that subject matter jurisdiction exists. Evans v. B.F. Perkins Co.. a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir.1999) ).
Questions regarding a waiver of sovereign immunity may be resolved via a Rule 12(b)(1) motion. Anderson v. United States. 669 F.3d 161, 164 (4th Cir.2011) ().
When considering a motion made pursuant to Rule 12(b)(6), the court, accepting the allegations in the complaint as true and construing them in the light most favorable to the plaintiff, determines "whether the complaint on its face states plausible claims upon which relief can be granted." Francis v. Giacomelli. 588 F.3d 186, 189 & 192 (4th Cir. 2009); Nemet Chevrolet. Ltd. v. Consumeraffairs.com. Inc.. 591 F.3d 250, 253 (4th Cir. 2009).
The court, however, is not required to accept "legal conclusions, elements of a cause of action, and...
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