Wesolowski v. United States, Ind. Univ. Health Care Assocs., Inc.

• Decision Date: 28 August 2017
• Docket Number: No. 1:17-cv-00749-JMS-MPB,1:17-cv-00749-JMS-MPB
• Parties: DENNIS WESOLOWSKI, Plaintiff, v. UNITED STATES, INDIANA UNIVERSITY HEALTH CARE ASSOCIATES, INC., INDIANA SCHOOL OF MEDICINE, Defendants.
• Court: U.S. District Court — Southern District of Indiana

DENNIS WESOLOWSKI, Plaintiff, v. UNITED STATES, INDIANA UNIVERSITY HEALTH CARE ASSOCIATES, INC.,INDIANA SCHOOL OF MEDICINE, Defendants.

No. 1:17-cv-00749-JMS-MPB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

August 28, 2017

ORDER

Plaintiff Dennis Wesolowski ("Mr. Wesolowski") alleges that he was severely injured when medical treatment providers at the VA Medical Center in Indianapolis performed an operation to treat Mr. Wesolowski's enlarged prostate. [Filing No. 1.] Presently pending before the Court are Motions to Dismiss filed by Defendants Indiana University Health Care Associates, Inc. ("IU Health"), [Filing No. 17], Indiana University School of Medicine ("IUSM"), [Filing No. 22], and United States ("Department of Veterans Affairs" or "VA"), [Filing No. 31] (collectively, "Defendants"), which seek to dismiss Mr. Wesolowski's two-count Complaint in its entirety. Count I alleges negligence on the part of the Department of Veterans Affairs. [Filing No. 1 at 2-4.] Count II alleges that Defendants breached their duty to Mr. Wesolowski as a third-party beneficiary of Defendants' contracts. [Filing No. 1 at 4-5.] For the following reasons, the Court GRANTS IU Health and IUSM's Motions to Dismiss and GRANTS IN PART and DENIES IN PART the VA's Motion to Dismiss.

I.

STANDARDS OF REVIEW

Defendants move to dismiss Mr. Wesolowski's Complaint under Federal Rule of Civil Procedure 12(b)(6) and Federal Rule of Civil Procedure 12(b)(1). Under Rule 12(b)(6), a party may move to dismiss a claim that does not state a right to relief. The Federal Rules of Civil Procedure require that a complaint provide the defendant with "fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)). In reviewing the sufficiency of a complaint, the Court must accept all well-pled facts as true and draw all permissible inferences in favor of the plaintiff. See Active Disposal Inc. v. City of Darien, 635 F.3d 883, 886 (7th Cir. 2011). A Rule 12(b)(6) motion to dismiss asks whether the complaint "contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The Court will not accept legal conclusions or conclusory allegations as sufficient to state a claim for relief. See McCauley v. City of Chicago, 671 F.3d 611, 617 (7th Cir. 2011). Factual allegations must plausibly state an entitlement to relief "to a degree that rises above the speculative level." Munson v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012). This plausibility determination is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

Rule 12(b)(1) "allows a party to move to dismiss a claim for lack of subject matter jurisdiction." Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). The burden is on the plaintiff to demonstrate that subject matter jurisdiction exists for his or her claims. See Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir. 2003).

II.

BACKGROUND

The following facts are drawn from Mr. Wesolowski's Complaint and are accepted as true for the purposes of deciding Defendants' Motions to Dismiss.

A. Medical Procedure

On June 20, 2014, Mr. Wesolowski underwent a transurethral resection of the prostate, a procedure performed to treat an enlarged prostate, at the VA Medical Center in Indianapolis, Indiana. [Filing No. 1 at 2.] Mr. Wesolowski was discharged the same day. [Filing No. 1 at 2.] After returning home, Mr. Wesolowski began to suffer from a variety of medical difficulties, including genital bleeding. [Filing No. 1 at 2.] Two days later, Mr. Wesolowski returned to the VA and was catheterized. [Filing No. 1 at 2.] Even after catheterization, Mr. Wesolowski was unable to urinate and experienced severe abdominal pain. [Filing No. 1 at 2.] Mr. Wesolowski continued to seek treatment at the VA over the months that followed his initial prostate procedure. [Filing No. 1 at 2.] Due to the bleeding and other difficulties, Mr. Wesolowski was admitted into the VA's intensive care unit. [Filing No. 1 at 3.] Mr. Wesolowski underwent further tests and procedures at the VA, but ultimately was discharged on August 10, 2014, without significant improvement. [Filing No. 1 at 3.] Mr. Wesolowski alleges that his continued health difficulties arise from substandard medical treatment that he received at the VA. [Filing No. 1.]

B. VA Arrangement with IU Health and IUSM

The VA contracts with IU Health and IUSM to place medical providers at the VA Medical Center. [Filing No. 1 at 4; Filing No. 1-1 at 3 (document reflecting contractual relationshipbetween VA and IU Health); Filing No. 1-1 (signed agreement between IUSM and the VA).]¹ These include responsibilities for providing urological services, such as those received by Mr. Wesolowski, as well as supervising and training IUSM residents assigned to the VA. [Filing No. 1 at 4.] At least one of the doctors who treated Mr. Wesolowski, Dr. Sundaram, was placed at the VA as part of IU Health's contract with the VA. [See Filing No. 1-1 at 1-2 (delineation of clinical privileges for Dr. Sundaram); Filing No. 1-1 at 3.]

Mr. Wesolowski also received treatment from residents placed by IUSM at the VA Medical Center pursuant to a "Medical Education Affiliation Agreement" ("Affiliation Agreement") between IUSM and the VA. [Filing No. 1 at 4-5; Filing No. 1-2 (agreement between IUSM and the VA).] Pursuant to the Affiliation Agreement, IUSM accepted "primary responsibility for the integrated education programs conducted with the VA while VA retain[ed] full responsibility for the care of VA patients and administration of its health care system." [Filing No. 1-2 at 1.] The Affiliation Agreement also provided, in relevant part, as follows:

Nothing in this agreement is intended to be contrary to state or federal laws. In the event of conflict between the terms of this agreement and any applicable state or federal law, that state or federal law will supersede the terms of this agreement. In the event of conflict between state and federal law, federal law will govern.

When providing professional services covered by this agreement, protection of properly appointed faculty members (except those providing services under a contract with VA) and properly appointed trainees of the affiliated institutions from personal liability while at a VA health care facility will be that which is provided under the Federal Employees Liability Reform and Tort Compensation Act 28 U.S.C. [§] 2679 (b)-(d). The liability, if any, of the United States for injury or loss of property, or personal injury or death shall be governed exclusively by the provisions of the Federal Tort Claims Act.

[Filing No. 1-2 at 4.]

C. Procedural Background

On March 10, 2017, Mr. Wesolowski filed his two-count Complaint in this Court, seeking compensation for the injuries he suffered during his treatment at the VA Medical Center. [Filing No. 1.] Count I alleges negligence against the VA for inadequate medical treatment and failure to adequately staff the VA Medical Center. [Filing No. 1 at 2-4.] Mr. Wesolowski timely and properly served his tort claim on the Department of Veterans Affairs. [Filing No. 1 at 3-4.]

Count II alleges that Mr. Wesolowski was an intended beneficiary of the contracts between IU Health and the VA and between IUSM and the VA. [Filing No. 1 at 4-5.] Mr. Wesolowski alleges that, as the intended beneficiary of these contracts, he is entitled to compensation for the failure of each Defendant to adequately perform their duties of providing proper medical treatment and supervision. [Filing No. 1 at 4-5.] IU Health and IUSM state that Mr. Wesolowski did not submit a proposed complaint to a medical review panel prior to filing suit against IU Health and IUSM, [Filing No. 18 at 4; Filing No. 22 at 2], and Mr. Wesolowski does not dispute that he did not do so, [Filing No. 23 (response to IU Health Motion to Dismiss); Filing No. 26 (response to IUSM Motion to Dismiss)].

III.

DISCUSSION

Defendants seek dismissal of each Count of Mr. Wesolowski's Complaint on several grounds. First, as to Count I, the VA argues that the Court should either dismiss or stay Mr. Wesolowski's negligence claim for failure to join Dr. Sundaram as a required party under Federal Rules of Civil Procedure 12(b)(7) and 19. [Filing No. 32 at 8-9; Filing No. 37 at 4.] Second, IU Health and IUSM argue that Count II fails for failure to exhaust administrative remedies and for filing outside the applicable statute of limitations. [Filing No. 18 at 4-5; Filing No. 22 at 2.]Finally, the VA argues that the Court lacks jurisdiction over Count II because the Tucker Act, 28 U.S.C. §§ 1346, 1491, vests exclusive jurisdiction over the claim in the Court of Federal Claims. [Filing No. 32 at 4-6.] The Court addresses each argument in turn.

A. Count I

Count I alleges negligence against only the VA. The VA argues that the Court should stay or dismiss Count I for failure to join Dr. Sundaram, the supervising surgeon of Mr. Wesolowski's operation.² [Filing No. 31 at 1-2; Filing No. 32 at 8-9.] Specifically, the VA argues that in the event it is found liable for any of Mr. Wesolowski's asserted injuries, the jury will be required to apportion a share of the fault to Dr. Sundaram. [Filing No. 32.] The VA states that Mr. Wesolowski's complaint against Dr. Sundaram is presently pending before a medical review panel. [Filing No. 32 at 8-9; Filing No. 18-1 (proposed complaint filed with the Department of Insurance).] The VA asks the Court to either dismiss the claim or stay it until the medical review panel proceedings conclude. [Filing No. 32 at 8.]

In response, Mr. Wesolowski maintains that Dr. Sundaram is not a required party under Rule 12(b)(7) and Rule 19, but...