Williams v. US, Civil Action No. 95-1507.

• Decision Date: 22 July 1996
• Docket Number: Civil Action No. 95-1507.
• Citation: 932 F. Supp. 357
• Parties: John R. WILLIAMS, Jr., Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Columbia

932 F. Supp. 357

John R. WILLIAMS, Jr., Plaintiff, v. UNITED STATES of America, Defendant.

Civil Action No. 95-1507.

United States District Court, District of Columbia.

July 22, 1996.

COPYRIGHT MATERIAL OMITTED

John G. Gill, Jr., Gill & Sippel, Rockville, MD, for plaintiff.

Daniel F. Van Horn, Asst. U.S. Atty., Washington, D.C., for defendant.

MEMORANDUM OPINION AND ORDER

LAMBERTH, District Judge.

This matter comes before the court on the motion of defendant United States of America to dismiss or transfer, or, in the alternative, for summary judgment. By order filed January 23, 1996, the United States was substituted as party defendant in place of the Department of Veterans Affairs. Upon consideration of this motion, plaintiff's opposition thereto, defendant's reply, plaintiff's response, and defendant's surreply thereto, the court shall grant the motion to dismiss in part, grant the motion to transfer in part, and grant the motion for summary judgment in part.

I. BACKGROUND

Plaintiff John R. Williams, Jr. is a Vietnam combat veteran who was honorably discharged from the Marine Corps. In 1976, plaintiff was awarded service-connected disability compensation by the Department of Veterans Affairs ("V.A."). At that time, he had a nervous condition rating which was rated by the V.A. as zero percent disabling. In 1987, plaintiff's nervous condition rating was increased to fifty percent disabling. With the advent of the Persian Gulf War, plaintiff experienced heightened symptoms of post traumatic stress disorder (PTSD), and, in September 1992, plaintiff began receiving treatment from Dr. Sherwin E. Little at the Springfield Vet Center, a V.A. facility in Springfield, Virginia.

Dr. Little informed plaintiff that he could participate in a future 6-month PTSD group, and in the meanwhile plaintiff had impromptu therapy sessions with Dr. Little. Dr. Little, with plaintiff's written authorization, discussed plaintiff's behavior and mental disability with plaintiff's old girlfriend, Ms. Carol Thompson, and invited her to a "significant other" group counseling session held on February 3, 1993. The next day, during a heated telephone conversation between plaintiff and Dr. Little in which the doctor allegedly called the plaintiff "a control freak" and "a bastard," Dr. Little informed the plaintiff that he was "disqualified" from the upcoming PTSD program and that the plaintiff was not welcome to return to the Vet Center.

Plaintiff contacted Mr. Philip Hamme, Regional Manager of the Vet Center, to complain about Dr. Little's actions. Mr. Hamme assigned Dr. Sherod Williams, Assistant Regional Manager for Counseling, to investigate plaintiff's complaints concerning Dr. Little and the Vet Center. Dr. Williams engaged in regular telephone therapy sessions with plaintiff over the next several days. Dr. Williams suggested that the plaintiff begin therapy with a private psychiatrist through the V.A.'s fee-based treatment program since "further treatment at the Springfield Vet Center would be counter-productive." Dr. Williams also drafted an investigative report concerning the plaintiff's complaints, but Mr. Hamme refused to allow plaintiff to view the report.

Plaintiff began treatment with Dr. Walter Guarino in Vienna, Virginia, through the V.A.'s fee-basis treatment program; plaintiff had a total of five sessions with Dr. Guarino. However, the V.A. cancelled plaintiff's participation in the fee-basis treatment program after plaintiff informed Mr. Hamme's assistant, Ms. Linda Wilson, that "Dr. Guarino says that the Vet Center really screwed me up." Dr. Guarino was not paid for services rendered until July 1995.

From February 18, 1993, until the fall of 1994, plaintiff pursued a letter writing campaign to the V.A. to obtain the report drafted by Dr. Williams. This effort culminated in a civil action brought by plaintiff to obtain the material under the Privacy Act and the Freedom of Information Act. The court ultimately held that Dr. Williams' draft report need not be released to plaintiff and that Mr. Williams had signed a written authorization permitting Dr. Little to contact Ms. Thompson. Williams v. Department of Veteran Affairs, 879 F.Supp. 578 (E.D.Va.1995) ("Williams I"). On November 21, 1994, plaintiff filed an administrative claim with the V.A., Standard Form 95, pursuant to the Federal Torts Claim Act.

Plaintiff brings this action pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671-2680, alleging medical malpractice on the part of the V.A. Specifically, plaintiff alleges that defendant breached the standard of care owed plaintiff by:

(1) failing to provide necessary medication to plaintiff or to refer him to other mental health care providers who could provide medication, Am.Comp. at ¶ 54(c);

(2) providing inadequate care and treatment planning when V.A. psychologists knew of plaintiff's need for proper mental health care, Am.Comp. at ¶ 54(d);

(3) abandoning plaintiff's treatment (a) through Dr. Little's statements on February 4, 1993; (b) by refusing to permit Dr. Williams' continued counseling of plaintiff when plaintiff was in great need of Dr. Williams' therapy; and (c) by terminating Dr. Guarino's emergency psychiatric care, Am.Comp. at ¶ 54(e) and 54(f);

(4) instilling in plaintiff hope that he would be cured and then causing plaintiff to feel despair and betrayal by (a) Dr. Little's promise that plaintiff would be cured in six months followed by Dr. Little's interaction with Ms. Thompson, and (b) Dr. Williams' implying that plaintiff would be pleased with his report followed by the withholding of the report from plaintiff, Am.Comp. at ¶ 54(g);

(5) negligently creating a mistrusting atmosphere when the agency should have known of plaintiff's delicate mental condition by (a) withholding Dr. Williams' report from plaintiff, (b) "persecuting and punishing" Dr. Williams after the doctor tried to come to the aid and assistance of plaintiff, and (c) the V.A.'s misrepresentations in its correspondence with the plaintiff, Am.Comp. at ¶ 54(h);

(6) improperly involving Ms. Thompson in plaintiff's treatment, even given a finding that plaintiff signed an authorization to release confidential communication to Ms. Thompson, Am.Comp. at ¶ 54(b). The court will treat these allegations as six separate claims of medical malpractice.

Plaintiff claims that because of the aforementioned actions by defendant he experienced emotional and psychological injury with consequences including a PTSD disability increase from fifty to one hundred percent disabling, a chronic mental condition, an inability to be gainfully employed, the need to file for bankruptcy, the inability to reconcile with his wife, the need for continuing psychiatric counseling and medication, and a loss of trust and confidence in the V.A. itself and any services provided by the V.A. These injuries were catalogued both in the plaintiff's complaint and in his administrative claim.

Plaintiff filed his initial complaint with this court on August 9, 1995. The Department of Veterans Affairs filed its Motion to Dismiss or to Transfer or, in the alternative, for Summary Judgment on October 23, 1995, and made its motions under Federal Rules of Civil Procedure 12(b)(1), (3), (6), and 56. The United States was substituted as party defendant in place of the Department of Veterans Affairs on January 23, 1996.

II. DISCUSSION

A. DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

Defendant moves under Federal Rule 12(b)(1) to dismiss this case for lack of subject matter jurisdiction. First, defendant proposes that the "presentment requirement" of the Federal Tort Claims Act, which requires that a tort claim first be presented to the appropriate United States agency before being pursued in federal court, has not been fulfilled. Second, defendant claims that under the Veterans' Judicial Review Act, exclusive jurisdiction over benefits determinations lies with the Court of Veterans Appeals and the United States Court of Appeals for the Federal Circuit.

1. PLAINTIFF'S MOTION PURSUANT TO THE FEDERAL TORT CLAIMS ACT

The Federal Tort Claims Act ("FTCA") allows a claimant to bring an action in federal court under the FTCA only after having "first presented the claim to the appropriate Federal agency." 28 U.S.C. § 2675. This is the so-called "presentment requirement" of the FTCA. Thus, in order to pursue his medical malpractice claim, the plaintiff must work within the confines of the FTCA, because otherwise the United States and its agencies are protected from tort claims by sovereign immunity.

The standard within the D.C. Circuit for determining whether the presentment requirement of the FTCA is satisfied is set forth in GAF Corp. v. United States, 818 F.2d 901 (D.C.Cir.1987), which at the outset determined that the presentment requirement is a jurisdictional question. Id. at 917. The GAF Corp. court found that Congress, in adding the FTCA's presentment requirement in 1966, "manifested no interest whatsoever in restricting claimants' rights under the Federal Tort Claims Act or in restricting their access to the courts. To the contrary, Congress identified private litigants as the primary beneficiaries of the amendments." Id. at 917. Rather, the imposition of the presentment requirement was "solely for the purpose of expediting settlement of claims in those instances where settlement was appropriate." Id. at 918. The presentment requirement was meant to give notice to the affected United States agency. Id. at 919. "Thus we hold ... that Section 2675(a) requires a claimant to file (1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum-certain damages claim." Id. at 919-20 (footnote omitted).

In discussing how a claimant may meet these two requirements, the GAF Corp. court found that "claimants providing the agencies notice of a claim need provide no more information than...