White v. United States, 2:21-cv-667-RHA-CWB

• Court: United States District Courts. 11th Circuit. Middle District of Alabama
• Writing for the Court: CHAD W. BRYAN UNITED STATES MAGISTRATE JUDGE
• Parties: DAWN M. WHITE and PATRICK J. WHITE, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.
• Docket Number: 2:21-cv-667-RHA-CWB
• Decision Date: 04 October 2022

DAWN M. WHITE and PATRICK J. WHITE, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

No. 2:21-cv-667-RHA-CWB

United States District Court, M.D. Alabama, Northern Division

October 4, 2022

RECOMMENDATION OF THE MAGISTRATE JUDGE

CHAD W. BRYAN UNITED STATES MAGISTRATE JUDGE

Plaintiffs Dawn M. White and Patrick J. White brought this action under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., to recover damages for alleged medical malpractice. (Docs. 1 & 23). Pursuant to 28 U.S.C. § 636, the action was referred to the Magistrate Judge “for further proceedings and determination or recommendation as may be appropriate.” (Doc. 6). Having considered the pleadings and annexed evidentiary materials, the undersigned hereby recommends that the government's motion to dismiss (Doc. 25) be granted.

I. Background

Mrs. White at all relevant times received primary health care through a government operated medical clinic at Maxwell Air Force Base in Montgomery, Alabama. (Doc. 23 at p. 3). As part of her treatment for migraine headaches, Mrs. White was prescribed the medication Maxalt. (Id. at p. 4). After having taken Maxalt periodically for several years, Mrs. White suffered a severe cardiac event on January 2, 2014 that allegedly led to anoxic encephalopathy and numerous associated disabilities. (Doc. 23 at pp. 4-5; Doc. 23-2).

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On or about October 4, 2017, an administrative claim was submitted on behalf of Mrs. White by her husband. (Doc. 19-1). The claim specifically sought to recover for “Non-ischemic Cardio Myopathy, and Anoxic Encephalopathy resulting in permanent and 100% disability requiring 24-hour supervision.” (Id.). The claim additionally included a letter asserting that in the immediate aftermath of her January 2, 2014 medical emergency, Mrs. White's treating providers at Baptist Hospital had disclosed a potential connection with the medication Maxalt. (Id. at pp. 3-4). The letter went on to explain that an administrative claim had not been filed earlier “due to the possibility of continued improvement in [Mrs. White's] condition.” (Id. at p. 4).

The administrative claim was formally denied by the Department of the Air Force on June 30, 2021. (Doc. 23-5). Plaintiffs then filed a Statement of Claim in this court on October 7, 2021 to assert a single count for medical malpractice. (Doc. 1). In response to Plaintiffs' request to supplement the record with additional supporting materials, the court afforded an opportunity to file an amended complaint (Doc. 20), and Plaintiffs thereafter submitted an amended Statement of Claim on April 22, 2022 (Doc. 23). The amendment likewise contained a single count for medical malpractice on grounds that Mrs. White had been negligently prescribed Maxalt without proper assessment of her medical history and without proper disclosure of potential adverse effects. (Id. at p. 5). The amended Statement of Claim also attached and referenced numerous evidentiary exhibits. (Doc. 23; Docs. 23-1 to 23-14).

Citing Rule 12(b)(6) of the Federal Rules of Civil Procedure, the government has moved for a dismissal of this action in its entirety. (Doc. 25). First, the government contends that dismissal is required because the action was commenced on behalf of Mrs. White by a nonattorney. (Id. at pp. 5-6). Second, the government contends that the action should be dismissed due to noncompliance with the two-year limitations period for submitting an administrative claim

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under the Federal Tort Claims Act. (Id. at pp. 7-8). Finally, the government contends that the action is barred by the four-year rule of repose found in the Alabama Medical Liability Act. (Id. at pp. 9-10). Alternatively, the government contends that Patrick J. White at a minimum should be dismissed as a plaintiff in his individual capacity. (Id. at p. 10-11).

II. Legal Standard

To survive a motion to dismiss under Rule 12(b)(6), a complaint “must contain 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. When deciding a motion under Rule 12(b)(6), “[t]he court accepts the plaintiff's allegations as true” and “construes them most favorably to the plaintiff.” Id. (citations omitted). Nonetheless, “[d]ismissal under Rule 12(b)(6) on statute of limitations grounds is appropriate if it is apparent from the face of the complaint that the claim is time-barred.” Berman v. Blount Parrish & Co., Inc., 523 F.Supp.2d 1298, 1300 (M.D. Ala. 2007).

The Federal Tort Claims Act provides a limited waiver of sovereign immunity and generally permits tort liability to attach against a governmental entity “in the same manner and to the same extent as a private individual under like circumstances ... .” 28 U.S.C. § 2674; Dalrymple v. United States, 460 F.3d 1318, 1324 (11th Cir. 2006). That waiver of sovereign immunity, however, is expressly conditioned upon exhaustion of administrative review, which in turn requires an administrative claim to be submitted “within two years after such claim accrues.” 28 U.S.C. §§ 2401(b) & 2675(a). Medical malpractice claims against the government also must satisfy the substantive requirements of the Alabama Medical Liability Act. Ala. Code § 6-5-482.

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III. Discussion

A. Claims asserted by Patrick J. White

The Statement of Claim, as amended, contains no request for relief by Mr. White in his individual capacity. (Doc. 23). Moreover, in response to the government's motion to dismiss, Mr. White expressly confirmed that he “does not now, nor has he ever, intended to be considered a plaintiff in this action.” (Doc. 28 at p. 6). By his own admission, Mr. White instead is attempting to assert a claim only in a representative capacity on behalf of Mrs. White. (Id.).

Although parties are permitted to represent themselves, see 28 U.S.C. § 1654, “[t]he right to appear pro se ... is limited to parties conducting ‘their own cases,' and does not extend to non-attorney parties representing the interests of others.” Fuqua v. Massey, 615 Fed.Appx. 611, 612 (11th Cir. 2015) (citation omitted); Martino v. Campbell, No. 8:21-CV-1636, 2021 WL 5923047, at *5 (M.D. Fla. Sept. 17, 2021), report and recommendation adopted, No. 8:21-CV-1636, 2021 WL 5049928 (M.D. Fla. Nov. 1, 2021) (“Insofar as Petitioner seeks to proceed pro se to assert claims on behalf of her [incapacitated] father, Mr. Martino, Petitioner is unable to do so. The law of this circuit prohibits non-attorneys from proceeding pro se in an action brought on behalf of another.”); Binns v. Comm'r of Soc. Sec., No. 1:11-CV-1984, 2011 WL 13319166, at *3 (N.D.Ga. June 29, 2011), report and recommendation adopted, No. 1:11-CV-1984, 2011 WL 13319176 (N.D.Ga. Aug. 1, 2011) (“[A] guardian may not appear pro se in a case in federal court involving her ward.”). When a non-attorney attempts to represent a party, the pleadings typically are deemed a nullity and subject to dismissal. See Wint by & through Wint v....