Wilson v. United States
| Decision Date | 30 April 2012 |
| Docket Number | Civil Action No. ELH-11-1205 |
| Parties | GAIL WILSON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Maryland |
Gail Wilson, plaintiff, alleges medical malpractice committed by three federally-employed physicians who, in 2006 and 2009, participated in two surgical procedures on her right foot, as well as post-operative care. The United States has moved to dismiss for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. The motion has been fully briefed,1 and no hearing is necessary to resolve it. See Local Rule 105.6.
For the reasons that follow, I will grant the motion in part and deny it in part. In particular, with respect to the first surgery, which was performed by Dr. Janette A. Thompson on July 26, 2006, the government's motion will be granted. However, the government's motion will be denied with respect to plaintiff's claims regarding the second surgery, performed by Dr. Donald H. Gottlieb on May 28, 2009, and the associated post-surgical care provided by Dr. Ngozi E. Ezeude.
The underlying facts and procedural history are summarized in the Court's Memorandum Opinion of September 23, 2011 (ECF 21), reported as Wilson v. Gottlieb, 821 F. Supp. 2d 778(D. Md. 2011) ("Wilson II").2 In brief, Dr. Thompson, along with another physician, Dr. John J. Motray, 3 performed the first surgery on plaintiff's right foot on July 26, 2006. ECF 2 at 2. The government states that the first surgery was a "plantar fascia release," Motion at 2, but there are few details in the record about it. According to plaintiff, the operation was performed "due to complications with her foot," but it "was not successful and no follow-up procedures were required by the physicians." Id.
Almost three years later, on May 28, 2009, Dr. Gottlieb performed the second surgery on plaintiff's right foot, to correct a "possible nerve entrapment." Id. During several post-operative examinations conducted by Dr. Ezeude, plaintiff complained of "inflammation and severe pain at and around the surgical site." Id.; see also ELH-10-2385, ECF 1 ¶ 11. On July 6, 2009, Ms. Wilson was transported by ambulance to Northwest Hospital in Baltimore, complaining of intense pain. ECF 2, at 2. X-ray imaging revealed that "a long piece of surgical tubing was still imbedded" in plaintiff's right foot. Id. Later the same day, plaintiff was admitted to the Baltimore Veterans Affairs Medical Center ("Baltimore VAMC") and was "diagnosed with a severe infection." Id. After the infection was resolved by means of antibiotic treatment, Dr. Gottlieb performed a third surgery to remove the surgical tube. Id.
Plaintiff filed the first iteration of this case on August 30, 2010, as a lawsuit against Dr. Gottlieb, Dr. Ezeude, the United States Department of Veterans Affairs ("VA"), and the Baltimore VAMC. She did not name Dr. Thompson as a defendant, nor did she mention the first surgery in her complaint. Moreover, plaintiff did not allege that she had filed her claim with theMaryland Health Claims Alternative Dispute Resolution Office ("HCADRO"), nor did she amend her complaint to add such an allegation, despite being afforded the opportunity to do so. See id. at 780. Therefore, on defendants' motion, and by Memorandum and Order dated February 8, 2011 (ELH-10-2385, ECF 9 & 10), the Court dismissed plaintiff's complaint for failure to allege that she had filed her claim with the HCADRO. See Wilson v. U.S. Dept. of Veterans Affairs, Civ. No. ELH-10-2385, 2011 WL 582577 (D. Md. Feb. 8, 2011) ("Wilson I").
As I discussed in my rulings in both Wilson I and Wilson II, the HCADRO is an administrative body established by the Maryland Health Care Malpractice Claims Act (the "Malpractice Claims Act"), Md. Code , §§ 3-2A-01 et seq. of the Courts & Judicial Proceedings Article ("C.J."). Filing a malpractice claim with the HCADRO is a condition precedent to maintenance of a medical malpractice lawsuit in Maryland. See, e.g., Carroll v. Konits, 400 Md. 167, 172, 929 A.2d 19, 22 (2007).
The Malpractice Claims Act "encourages, but does not mandate, arbitration of medical malpractice claims" by arbitration panels convened through the HCADRO. Wilson II, 821 F. Supp. 2d at 786. Arbitration can be waived unilaterally by either party, however. Moreover, even if an arbitration is conducted, the arbitration award may be rejected by either party in favor of a de novo judicial proceeding. See id. The only truly mandatory aspects of the Malpractice Claims Act procedure are "submission of the claim to the HCADRO in advance of filing a complaint in a court (which ensures notification to [Maryland's] State Board of Physicians ofmedical malpractice claims against individual physicians), and, in most cases, each party's submission of a certificate and report of a qualified expert." Id.4
On or about January 4, 2011, i.e., after Wilson I was filed but before it was dismissed, plaintiff had filed a claim with the HCADRO. As noted, she had not amended her complaint to add that information. On May 5, 2011, after the dismissal of Wilson I, the United States initiated the present case by removing plaintiff's claim from the HCADRO to this Court, on the basis of the federal officer removal statute, 28 U.S.C. § 1442(a)(1), and the Westfall Act, 28 U.S.C. § 2679(d)(2). Along with its Notice of Removal (ECF 1), the United States filed a copy of plaintiff's "Claim Form," filed in the HCADRO, attached to which was a letter setting forth plaintiff's "Basis of Claim" (ECF 2). The government also filed a certification by United States Attorney Rod J. Rosenstein that the three physicians "were acting within the scope of their employment as employees of the United States at the time of the incident out of which plaintiff's claim arose." ECF 6.
Thereafter, I directed the parties to brief the jurisdictional issue of whether it is possible to "remove" a proceeding from the HCADRO, given that the HCADRO is an administrative agency in the executive branch of Maryland's state government, and is not a state court. Applying the so-called "functional test" adopted by the Fourth Circuit in Kolibash v. Committee on Legal Ethics of West Virginia Bar, 872 F.2d 571 (4th Cir. 1989), I concluded in Wilson II that, although the HCADRO is not literally a state court, it constitutes a "State court" from which a proceeding may be removed, within the meaning of 28 U.S.C. § 1442. I reached this conclusion because the HCADRO (or, at least, an arbitration panel convened by the HCADRO)"'operates in an adjudicatory manner, . . . a federal officer or his agent is subject to its process,'" and "the interests served by the federal officer removal statute outweigh Maryland's interests in providing a state administrative forum" for medical malpractice claims. Wilson II, 821 F. Supp. 2d at 791 (quoting Kolibash, 872 F.2d at 576).
The present Motion followed, in which the government seeks dismissal of plaintiff's claims for lack of subject matter jurisdiction. According to the government, plaintiff's malpractice claim is barred with regard to the first surgery, performed by Dr. Thompson in 2006, because plaintiff failed to provide notice of her claim to the VA within two years after the claim arose, as required by the Federal Tort Claims Act ("FTCA"), codified in scattered sections of Title 28 of the U.S. Code. The government also maintains that, even if plaintiff's claims regarding the first surgery are not barred due to failure to comply with the notice requirement, the content of the expert certificate and report are insufficient as to the first surgery. Similarly, as to the second surgery, performed by Dr. Gottlieb in 2009, and the post-surgical care provided by Dr. Ezeude, the government contends that plaintiff's certificate and report of qualified expert are insufficient to satisfy the requirements of the state Malpractice Claims Act.
Additional facts will be included in the discussion.
A challenge to subject matter jurisdiction under Rule 12(b)(1) may proceed "in one of two ways": either a facial challenge, asserting that the allegations pleaded in the complaint are insufficient to establish subject matter jurisdiction; or a factual challenge, asserting "'that the jurisdictional allegations of the complaint [are] not true.'" Kerns v. United States, 585 F.3d 187,192 (4th Cir. 2009) (citation omitted); see also Buchanan v. Consol. Stores Corp., 125 F. Supp. 2d 730, 736 (D. Md. 2001). In a facial challenge, "the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction." Kerns, 585 F.3d at 192; see also Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). In a factual challenge, on the other hand (such as the Motion at issue here), "the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction." Kerns, 585 F.3d at 192. In that circumstance, the court "may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004). "Unless 'the jurisdictional facts are intertwined with the facts central to the merits of the dispute,' the district court may . . . resolve the jurisdictional facts in dispute by considering evidence . . . such as affidavits." United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347-48 (4th Cir. 2009) (citation omitted). The court may also "hold an evidentiary hearing to determine whether the facts support the jurisdictional allegations." United States v. North Carolina, 180 F.3d 574, 580 (4th Cir. 1999); accord Kerns, 585 F.3d at 192.
"When, as here, a defendant challenges the existence of subject matter jurisdiction in...
To continue reading
Request your trial