Wilson v. U.S. Dep't Of Veterans Affairs
| Decision Date | 08 February 2011 |
| Docket Number | Civil Action No.: ELH-10-2385 |
| Court | U.S. District Court — District of Maryland |
| Parties | GAIL WILSON, Plaintiff, v. U.S. DEPARTMENT OF VETERANS AFFAIRS, et al., Defendant. |
Gail Wilson has filed a medical malpractice action against the United States Department of Veterans Affairs; the Baltimore VA Medical Center; Donald H. Gottlieb, M.D.; and Ngozi Kelech Ezeude, M.D., pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b)(1), 2671 et seq.1 The United States has moved to dismiss the suit (ECF 6).2 The issues have been fully briefed and no hearing is necessary. See Local Rule 105.6. For the reasons articulated below, the Court will grant the motion, without prejudice. Plaintiff shall be granted leave to amend within 20 days from the date of the accompanying Order.
On May 28, 2009, at the Baltimore VA Medical Center, Dr. Gottlieb operated on Ms. Wilson to correct a possible nerve entrapment in her right foot. Compl. ¶ 10 (ECF 1). Duringpost-operative visits, Ms. Wilson complained to Dr. Ezeude, a medical resident, about inflammation and severe pain at the surgical site. Id. ¶ 11. On July 6, 2009, the pain became so severe that Ms. Wilson was transported by ambulance to Northwest Hospital. Id. ¶ 12. There, x-rays revealed a piece of surgical tubing embedded in Ms. Wilson's right foot. Id. ¶ 13. Ms. Wilson subsequently went to the Baltimore VA Hospital, id. ¶ 14-15, where she was diagnosed with a severe infection. At that time, the diagnosis of surgical tubing in Ms. Wilson's foot was confirmed. Id. ¶ 15.
Ms. Wilson was admitted to the VA hospital for treatment of the infection. Id. Thereafter, Dr. Gottlieb performed a second surgery on her, to remove the tubing. According to Ms. Wilson, Dr. Gottlieb apologized "for his mistake and his colleagues' failure to act on her complaints during post-op visits." Id. ¶ 17.
After plaintiff's release from the VA Hospital, she underwent physical therapy, which was still ongoing at the time she filed her Complaint on August 30, 2010. Id. ¶ 19. In her Complaint, plaintiff contended, inter alia, that defendants were negligent in performing the surgery that left the tubing in her foot. Id. ¶ 20. She also averred that she had timely complied "with all prerequisites to a suit arising under the FTCA." Specifically, Ms. Wilson indicated that she filed an administrative claim with the Department of Veteran Affairs on October 16, 2009, but that the Department had failed to admit or deny that claim within the six month period under the FTCA. Id. ¶ 2.b-c.
Pursuant to Fed. R. Civ. P. 12(b)(6), the United States has moved to dismiss Ms. Wilson's suit on the ground that the Complaint fails to state a claim for relief. As discussed in more detail below, the Government claims that the plaintiff failed to comply with certainrequirements imposed by the Maryland Health Care Malpractice Claims Act (the "Act"), MD. Code Ann., Cts. & Jud. Proc. § 3-2A-01 et seq. ("C.J."), which are conditions precedent to filing a medical malpractice action in court.
Under Fed. R. Civ. P. 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." To satisfy the minimal requirements of Rule 8(a)(2), the Complaint must set forth "enough factual matter (taken as true) to suggest" a cognizable cause of action, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). The purpose of the Rule is to provide the defendant with "fair notice" of the claim and the "grounds" for entitlement to relief. Id. at 555-56 n.3 (citation omitted).
To be sure, the plaintiff need not include "detailed factual allegations in order to satisfy" Rule 8(a)(2). But, the Rule demands more than bald accusation or mere speculation. Id. at 555. Thus, a complaint that provides no more than "labels and conclusions, " or "a formulaic recitation of the elements of a cause of action, " is insufficient under the Rule. Id.
A defendant may test the adequacy of a complaint by way of a motion under Rule 12(b)(6). German v. Fox, 267 F. App'x 231, 233 (4th Cir. 2008). Both Twombly, 550 U.S. 544, and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), make clear that, in order to survive a motion to dismiss under Rule 12(b)(6), a complaint must contain facts sufficient to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570; see Iqbal, 129 S. Ct. at 1953 ; see also Simmons v. United Mortgage and Loan Investment, No. 09-2147, 2011 WL 184356, at *10 (4th Cir. Jan. 21, 2011); Andre v. Clark, 561 F.3d 261, 266 (4th Cir. 2009); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008).
Notably, a motion pursuant to Rule 12(b)(6) "does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999) (internal quotation marks omitted). Moreover, in resolving the Rule 12(b)(6) motion, the court is not required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986); Monroe v. City of Charlottesville, Va., 579 F.3d 380, 385-86 (4th Cir. 2009). Simply put, a plaintiff cannot prevail if the "well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct." Iqbal, 129 S. Ct. at 1950.
As noted, the Government's motion centers on its claim that Ms. Wilson did not comply with certain requirements of the Act. Under C.J. § 3-2A-04(a)(1)(i), "A person having a claim against a health care provider for damage due to a medical injury shall file the claim with the Director [of the Maryland Health Care Alternative Dispute Resolution Office]...."4 Under C.J. § 3-2A-04(b)(1)(i)(l), the claimant must file a "certificate of a qualified expert" with the Director within 90 days of filing the claim, attesting "to departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury." The certificate must be accompanied by "a report of the attesting expert." Id., § 3-2A-04(b)(3)(i). A defendant who disputes liability must file a similar certificate and report within 120 days from the date that the claimant served her certificate of qualified expert. Id. § 3-2A-04(b)(2)(i).
After the filing of the certificate of qualified expert, a potential plaintiff may waive arbitration. C.J. § 3-2A-06B(b)(1) states: "[A]ny claimant may waive arbitration at any time after filing the certificate of qualified expert... by filing with the Director a written election to waive arbitration signed by the claimant or the claimant's attorney of record in the arbitration proceeding." (Emphasis added.) However, the waiver must be filed "not later than 60 days afterall defendants have filed a certificate of qualified expert." Id. § 3-2A-06B(d)(1). In addition, the election of waiver must also be served on the other parties to the claim. Id. § 3-2A-06B(c)(2).
The Maryland Court of Appeals has made clear that the requirements described above are conditions precedent to the filing of a medical malpractice suit in court. See Carroll v. Konits, 400 Md. 167, 172, 929 A.2d 19, 22 (2007) (); Witte v. Azarian, 369 Md. 518, 527, 801 A.2d 160, 166 (2002) (); McCready Memorial Hosp. v. Hauser, 330 Md. 497, 512, 624 A.2d 1249, 1257 (1993) (); Crawford v. Leahy, 326 Md. 160, 165, 604 A.2d 73, 75 (1992) (); see also Barber v. Catholic Health Initiatives, 180 Md. App. 409, 419, 951 A.2d 857, 863, cert. denied, 406 Md. 192 (2008). The "penalty" for failure to satisfy the expert provisions is "mandatory" dismissal, without prejudice. Konits, 400 Md. at 179, 929 A.2d at 27.
The United States maintains that, under 28 U.S.C. § 2674, "the substantive law of each state establishes a cause of action" under the FTCA. Mot. Dismiss 5 (ECF 6). In its view, the requirements of the Act, discussed above, are substantive in nature, and thus Ms. Wilson was obligated to satisfy them. Mot. Dismiss 5-6. Yet, it claims that Ms. Wilson did not comply with the Act, because she failed to file her claim with the Director of the Maryland Health Care Alternative Dispute Resolution Office, as set forth in C.J. § 3-2A-04(a)(1)(i). Id. at 6. The United States also suggests that Ms. Wilson did not satisfy C.J. § 3-2A-04(b)(1)(i), by which a plaintiff must file a "certificate of qualified expert" with the Director within 90 days of the filingof a claim, attesting "to departure from standards of care.. " Therefore, the United States insists that Ms. Wilson has not met essential preconditions to filing suit.
Ms. Wilson disagrees. She argues: Answer to Mot. to Dismiss 3 (ECF 7).
The case of Anderson v. United States, No. CCB-08-3, 2008 WL 3307137 (D. Md. Aug. 8, 2008), provides guidance. There, Ms. Anderson filed a medical malpractice in federal court. The Government moved to dismiss her claim, arguing that she had failed to satisfy the Act, because she did...
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