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holding that Michigan pre-certification requirement did not conflict with the federal pre-filing requirements
Summary of this case from Stanley v. U.S.Opinion
No. 4:01 cv 23
July 16, 2001
OPINION AND ORDER ON DEFENDANTS' MOTION TO DISMISS
On February 16, 2001, plaintiff Dennis James Williams filed this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346. Naming as defendants the United States of America and the Department of Veterans Affairs, plaintiff alleges that he was negligently diagnosed as being HIV positive while under care at the Department of Veterans Affairs Medical Center in Battle Creek, Michigan (the "VA") in August, 1999. Plaintiff further alleges that based on this misdiagnosis, he was treated at the VA — unnecessarily — for nearly a year until July, 2000, when he learned that he was in fact HIV negative. The matter is currently before the court on a motion by the defendants to dismiss (docket no. 4). Plaintiff has filed a written response opposing the motion (docket no. 6), to which the defendants have made a written reply no. 7).
The judge's copy of the complaint erroneously lists the case number of this action as No. 4:00 cv 201, which happens to be another action pending in this court filed by the same plaintiff's counsel, Youngblood v. United States (Complaint filed Dec. 14, 2000). The two cases do not appear to be in any way related. The original complaint on file with the court in this case contains a correction indicating the proper file number.
For the following reasons, the court grants the motion and dismisses this action without prejudice.
I
"HIV" refers to the Human Immunodeficiency Virus, which is known to be the cause of Acquired Immune Deficiency Syndrome ("AIDS"). Plaintiff's complaint alleges that on August 3, 1999, he presented at the VA, where a routine diagnostic blood test was performed. The complaint further alleges that this test was "read as HIV positive," and plaintiff was thereafter "treated by the VA and other medical care providers for being HIV positive" until July 17, 2000, when he was advised that he was HIV negative.
On July 7, 2000, plaintiff's counsel sent a letter to the Department of Veterans Affairs Regional Counsel's office in Detroit, Michigan. The letter included, as an enclosure, a "Section 2912b Notice of Intent to File Claim." The reference to "Section 2912b" is apparently to M.C.L. § 600.2912b, a Michigan statute applicable to medical malpractice actions. The Notice sent to Regional Counsel asserted, among other things, that plaintiff had suffered injury, including undergoing unnecessary treatment, based on "the improper administration, performance and reading of the HIV test" performed on August 3, 1999.
Unlike plaintiff's complaint, which alleges that he was advised that he was HIV negative on July 17, 2000, the Section 2912b Notice alleges that plaintiff was treated for HIV infection until June 2, 2000, when the VA performed another test which came back negative.
Plaintiff's complaint alleges that he filed a Federal Tort Claim form 95-109 on June 30, 2000, but did not receive a written response within six months. He filed this action against the defendants on February 16, 2001.
Title 28 U.S.C. § 2675(a) requires a claimant against the United States to first file a claim with the appropriate Federal agency. The claimant may not file an action until this administrative claim has been "finally denied" by the agency. However, the failure of the agency to make final disposition of the claim within six months after filing is deemed a "final denial" for purposes of § 2675(a).
II
In their motion, the defendants seek dismissal pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), arguing (1) that the complaint fails to state a claim upon which relief can be granted, and (2) the plaintiff has failed to file the required Affidavit of Merit pursuant to M.C.L. § 600.2912d. The defendants also argue that in any event, because the only proper defendant in a case under the FTCA is the United States of America, the Department of Veterans Affairs should be dismissed as a party to this action. In his response, the plaintiff concedes that the Department is not a proper defendant and that his claim against it is therefore subject to dismissal. However, plaintiff argues that his claim against the United States under the FTCA is not subject to dismissal because (1) he has properly pled a valid cause of action against the federal employee or agent who allegedly misread his HIV test, and (2) he is not required to file an Affidavit of Merit under M.C.L. § 600.2912d.
The defendants' motion invokes Fed.R.Civ.P. 12(b)(1), and indeed the court's analysis must begin by noting the limits of its jurisdiction. Absent waiver, the United States, as sovereign, is immune from suit. Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). "Sovereign immunity is jurisdictional in nature. Indeed, the `terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit."' Id. (citations omitted).
Title 28 U.S.C. § 1346(b)(1) gives the district courts
exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
See also 28 U.S.C. § 2674 (providing that the United States
"shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances"). The Supreme Court has interpreted the "law of the place" language to mean state law.
See United States v. Muniz, 374 U.S. 150, 162 (1963) ("improper medical treatment can be judged under the varying state laws of malpractice"). At this point, the pleadings in this case indicate that the alleged negligence occurred in Michigan, for plaintiff's complaint alleges that this was where he was treated. Complaint, ¶ 3. Consequently, the FTCA mandates that Michigan law governs the substantive aspects of this case, while federal law governs the procedural issues. Bell v. United States, 854 F.2d 881, 885 (6th Cir. 1988).
Plaintiff has not argued that any other State's law applies. In his Brief in Response, plaintiff states that although he had his blood drawn for the HIV test at the VA in Battle Creek, the blood itself was tested in Indianapolis. With his brief, plaintiff has submitted a document (Exhibit A), which he contends is a copy of the lab results from which he was advised that he was HIV positive. The contents of this document are largely undecipherable by a layperson, although portions of it contain comments indicating "Testing Performed at Indianapolis V.A.M.C." and "Testing Performed at Smithkline Beecham Laboratories." The relevance of the allegation (which is unsupported by affidavit) that the testing was performed in Indianapolis escapes the court, for plaintiff does not deny that he was informed of the results in Battle Creek.
The United States argues that the plaintiff has failed to state a claim on which relief may be granted because he has failed to allege the elements necessary to constitute a cause of action for medical malpractice under Michigan law. These elements include the existence of a duty, a breach of the standard of care, causation in fact, legal or proximate causation, and damages. Thiesen v. Knake, 236 Mich. App. 249, 599 N.W.2d 777, 781 (1999). The United States is correct insofar as it argues that mere conclusions and general allegations of negligence and injury which do not sufficiently inform the defendant of the nature of the cause he is called upon to defend render a complaint subject to dismissal. Martinez v. Redford Community Hosp., 148 Mich. App. 221, 384 N.W.2d 134, 140 (1986). "[I]t is the nature of the cause of action itself which will dictate the degree of specificity required i.e., the more complex the action, the more specific the averments should be." Id. The complaint must be "specific enough to provide the defendant with notice of the allegations against which to defend." Id. Here, however, plaintiff alleges merely that "the VA was negligent in advising [him] that his blood was HIV positive." Complaint, ¶ 9. The complaint does not allege who was negligent, or in what manner. For instance, was the blood sample mishandled, or improperly drawn? Was the testing of the blood performed improperly? Were the test results reported inaccurate? Were the test results misinterpreted, and if so, by whom? Was the test done sufficient, or should additional testing have been done? Was it negligent to perform any "routine diagnostic" HIV testing at all? The complaint sheds no light on what standard of care was breached, by whom, or how.
Plaintiff's response sheds some light on his possible theory, for in it plaintiff argues that the negligence committed consists of "not accurately testing plaintiff's blood to find it negative for HIV." According to plaintiff, he "believes it was a lab error and not professional negligence." Under the circumstances, plaintiff contends, at this point "this is just a general negligence claim involving a lab error or two or three."
Plaintiff, however, is wrong in characterizing this action as one involving general negligence. In Michigan, a claim by a patient against a health facility may be brought against that facility as a medical malpractice claim or as a claim for ordinary negligence. While the law which will apply depends upon the theory actually pled when the same set of facts can support either of two distinct causes of action, the gravamen of an action is determined by reading the claim as a whole. McLeod v. Plymouth Court Nursing Home, 957 F. Supp. 113, 115 (E.D.Mich. 1997). According to a recent decision of Michigan's Supreme Court,
The determination whether a claim will be held to the standards of proof and procedural requirements of a medical malpractice claim as opposed to an ordinary negligence claim depends on whether the facts allegedly raise issues that are within the common knowledge and experience of [the factfinder] or, alternatively, raise questions involving medical judgment. . . . .
Dorris v. Detroit Osteopathic Hosp. Corp., 460 Mich. 26, 594 N.W.2d 455, 465 (1999). Here, plaintiff's complaint alleges that he suffered through unnecessary medical treatment because he was misdiagnosed as being HIV positive. An allegation of erroneous diagnosis raises questions of medical judgment, whether the error occurred in a laboratory or during treatment in a hospital setting. Therefore, plaintiff's claim is fundamentally one of medical malpractice. See Machesney v. Larry Bruni. M.D., P.C., 905 F. Supp. 1122, 1127 (D.D.C. 1995) (plaintiff filed malpractice action against four defendants, including hospital and group of pathologists supervising the operation of hospital laboratory, alleging that defendants negligently reported him as HIV positive; plaintiff's proof included testimony regarding standard of care regarding testing to be performed before patient could be reported HIV positive).
The conclusion that plaintiff's complaint alleges malpractice requires the court to address the United States' remaining argument: that the complaint is deficient insofar as it was filed without the Affidavit of Merit required by M.C.L. § 600.2912d. This statute reads in pertinent part as follows:
(1) Subject to subsection (2), the plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiff's attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiff's attorney reasonably believes meets the requirements of an expert witness under section 2169. The affidavit of merit shall certify that the health professional has reviewed the notice and all medical records supplied to him or her by the plaintiff's attorney concerning the allegations contained in the notice and shall contain a statement of each of the following:
(a) The applicable standard of practice or care.
(b) The health professional's opinion that the applicable standard of practice or care was breached by the health professional or health facility receiving the notice.
(c) The actions that should have been taken or omitted by the health professional or health facility in order to have complied with the applicable standard of practice or care.
(d) The manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice.
The referenced "notice," of course, is the Notice of Intent required by M.C.L. § 600.2912b, which plaintiff submitted to the Regional Counsel's office on June 7, 2000. The purpose of the Affidavit of Merit requirement is "to guard against the filing of frivolous claims by assuring the defendants that a medical expert has determined that there is justification for plaintiff's claims." Ericson v. Pollak. 110 F. Supp.2d 582, 588 (E.D.Mich. 2000); see Dorris, 594 N.W.2d at 466.
Before the court proceeds to determine whether the plaintiff's action is deficient for lack of an Affidavit of Merit, the court must first determine whether M.C.L. § 600.2912d must be applied in this federal action. If substantive in nature, Michigan's statute must be applied unless it conflicts with a controlling federal rule. See Poindexter v. Bonsukan, No. 999CV315, 2001 WL 668435, at *2 (E.D.Tex. Apr. 27, 2001) (holding that the provisions of the Texas Medical Liability Insurance Improvement Act were not applicable in action under FTCA because they derogated the discretion vested in federal courts by the Federal Rules of Civil Procedure). The United States apparently assumes that § 600.2912d applies even in a malpractice action filed under the FTCA. The plaintiff's response follows this assumption, for plaintiff concedes that should the court conclude that this is a malpractice action, plaintiff would be required to obtain an Affidavit of Merit. On the one hand, the filing of an administrative claim is a jurisdictional prerequisite to the filing of a suit under the FTCA. 28 U.S.C. § 2675(a). However, the United States has not raised an issue of noncompliance with the federal procedures for filing claims; it's the state law which the United States argues plaintiff has not followed. The court concludes that both sides are correct in their unstated assumption that M.C.L. § 600.2912d constitutes "the law of the place" which must be applied in this action pursuant to 28 U.S.C. § 1346(b)(1).
At least two other federal courts faced with similar state malpractice statutes in FTCA cases have reached the same conclusion. Anderson v. United States, No. Civ. 5-96-235, 1998 WL 92460 (D.Minn. Jan. 5, 1998); Hill v. United States, 751 F. Supp. 909 (D.Colo. 1990); Oslund v. United States, 701 F. Supp. 710 (D.Minn. 1988). In addition, other federal courts have reached similar conclusions in the context of diversity malpractice actions. See Chamberlain v. Giampapa, 210 F.3d 154 (3d Cir. 2000) (New Jersey affidavit of merit statute must be applied by federal court sitting in diversity); Roth v. Dimensions Health Corp., 992 F.2d 36 (4th Cir. 1993) (Maryland substantive law dispositive in diversity medical malpractice action filed in Maryland); Hines v. Elkhart General Hosp., 603 F.2d 646 (7th Cir. 1979) (pre-suit requirements of Indiana Medical Malpractice Act applied in diversity case filed in Indiana); Finnegan v. University of Rochester Med. Ctr., 180 F.R.D. 247 (W.D.N.Y. 1998) (New York statute requiring plaintiff to file certificate of merit is substantive law that applies in diversity action). The court finds the reasoning of these cases persuasive, and concludes that Michigan's requirement of an Affidavit of Merit is indeed substantive in nature. To the extent that other federal courts have concluded otherwise, the court declines to follow that contrary precedent. See Poindexter, 2001 WL 668435, at *7-10 (concluding that Texas statute's expert reporting provisions do not apply in FTCA malpractice action).
The court also concludes that requiring the plaintiff to comply with Michigan's pre-suit statutory requirements in this medical malpractice action does not conflict with any controlling federal rules or regulations. The general provisions governing discovery contained in Fed.R.Civ.P. 26 (including subdivisions (a)(2) and (b)(4), which expressly pertain to expert witnesses) establish the procedure applicable once an action is filed in the district court. In contrast, the requirement at issue here — that the plaintiff obtain an Affidavit of Merit — is clearly a pre-suit requirement, insofar as it requires the plaintiff to file the Affidavit with the complaint. M.C.L. § 600.2912d(1).
The Affidavit of Merit requirement contained in M.C.L. § 600.2912d is, of course, preceded by the written notice requirement, which dictates that "[e]xcept as otherwise provided in this section, a person shall not commence an action alleging medical malpractice[.]" M.C.L. § 600.2912b(1) (emphasis supplied).
The Federal Rules of Civil Procedure do, to some extent, impose pre-suit requirements. Specifically, Fed.R.Civ.P. 11 contemplates that an attorney who files a complaint will have performed a reasonable pre-filing inquiry. See Fed.R.Civ.P. 11(b). Clearly, the Michigan malpractice statutes go beyond merely presuming a reasonable pre-filing inquiry. They essentially require a party to provide specific details regarding the results of the inquiry, and require a party to provide a confirming sworn statement of a health professional; the signature of an attorney or party is not sufficient to maintain an action. Indeed, Michigan's own version of Rule 11 recognizes that in some actions a pleading may need to be accompanied by a confirming statement. See M.C.L. § 2.114(B)(1) ("Except when otherwise specifically provided by rule or statute, a document need not be verified or accompanied by an affidavit") (emphasis supplied).
In addition, to the extent that Michigan's § 600.2912d imposes a pre-suit requirement, its provisions do not conflict with the federal pre-suit requirements pertaining to administrative claims. While Michigan's requirements may be viewed as more restrictive, they are not inconsistent with the federal regulations issued by the Department of Justice applicable to claims asserted under the FTCA. See generally 28 C.F.R. Part 14. For example, pursuant to 28 C.F.R. § 14.2(a), an administrative claim is deemed presented to a federal agency when the agency receives from the claimant either an executed Standard Form 95 "or other written notification of an incident[.]" The stated purpose of the pre-filing administrative process is not to discourage the filing of frivolous claims, but rather "to serve as an efficient effective forum for rapidly resolving tort claims with low costs to all participants." 28 C.F.R. § 14.6(a). The regulations also reserve to federal agencies the discretion to attempt to resolve disputed factual questions regarding claims "through the use of any alternative dispute resolution technique or process if the agency specifically agrees to employ the technique or process[.]" 28 C.F.R. § 14.6(a)(2). Given the United States' position in this case that Michigan's malpractice requirements apply, the agency in question — the Department of Veterans Affairs — is presumably agreeing to employ the process established by the State of Michigan in attempting a pre-suit resolution of plaintiff's administrative claim.
While Michigan's requirement that the plaintiff obtain an expert opinion before filing suit results in additional pre-suit costs, these additional costs would be incurred in any event by a plaintiff pursuing a nonfrivolous malpractice claim in a Michigan court.
The federal regulations also reserve to agencies the authority to "issue regulations and establish procedures consistent" with 28 C.F.R. Part 14, and the Department of Veterans Affairs has done so, in 38 C.F.R. § 14.600 through 14.605. Pursuant to these regulations, an administrative claim is deemed presented when the Department receives from the claimant "an executed SF 95, or other written notification of an incident, together with a claim for money damages, in a sum certain" (emphasis supplied). The Department's regulations also address pre-suit medical records requests, which are to be handled by Regional Counsel pursuant to 38 C.F.R. § 14.602(a). Section 14.602(b) further provides that such requests "shall be handled in accordance with the provisions of [38 C.F.R.] § 1.511(a)(2)," which requires Regional Counsel to "limit the disclosure of information to that which would be available under discovery proceedings, if the matter were in litigation." Thus, to the extent that compliance with Michigan's malpractice statutes requires that the claimant be allowed access to medical records, as under M.C.L. § 600.2912b(5), the Department's regulations are not inconsistent with that requirement. In sum, nothing in the federal regulations prevents application of Michigan's pre-suit requirements, which are consistent with, yet perhaps more extensive than the federal counterpart. The court concludes that the Michigan requirements apply under the circumstances presented here.
The regulations contemplate that a claim may be initiated by a claimant through other means than the submission of an SF 95. They do provide, however, that a claim may not be compromised or settled until the Department obtains an SF 95 from the claimant. 38 C.F.R. § 14.604(b).
The Michigan Supreme Court has held that an action for medical malpractice is not commenced until the plaintiff files both a complaint and an Affidavit of Merit. Scarsella v. Pollak, 461 Mich. 547, 607 N.W.2d 711, 713 (2000). "[F]or statute of limitations purposes in a medical malpractice case, the mere tendering of a complaint without the required affidavit of merit is insufficient to commence the lawsuit." Id. The Michigan Supreme Court has further held that the appropriate sanction for the plaintiff's failure to file an affidavit of merit as required by § 600.2912d is dismissal without prejudice. Dorris, 594 N.W.2d at 466.
In a recent case, panel of the Michigan Court of Appeals also held that a default judgment entered as a result of a malpractice defendant's failure to answer was void ab initio based on the plaintiff s failure to file either security for costs or an affidavit of merit as required by § 600.2912d. White v. Busuito, 230 Mich. App. 71, 583 N.W.2d 499, 501-502 (1998), appeal denied, 459 Mich. 978, 593 N.W.2d 556 (1999).
As noted above, plaintiff attempts to escape the Affidavit of Merit requirement by arguing that an allegation of lab error does not constitute a claim of medical malpractice. While plaintiff concedes that the "Infectious disease person" who informed him he was HIV positive "may have been a licensed professional," plaintiff is not accusing her of error but rather the "VA in Indianapolis that read the test incorrectly." According to plaintiff, the interpreter of the test is "just a LAB." Plaintiff further argues that "[l]abs can only be generally negligent," not guilty of medical practice.
However, plaintiff's argument that an Affidavit of Merit is not required because a laboratory cannot be sued for malpractice appears to be directly contrary to Michigan law. M.C.L. §§ 600.2912b and 600.2912d expressly apply to actions alleging malpractice against either a "health professional" or "health facility." In particular, § 600.2912d(1)(c) requires an Affidavit of Merit to state "[t]he actions what should have been taken or omitted by the health professional or health facility in order to have complied with the applicable standard of practice or care" (emphasis supplied). Although the malpractice statute does not define the term "health facility," as the Michigan Supreme Court recently noted, M.C.L. § 333. 20106(1)(b) defines a "health facility or agency" as including a "clinical laboratory." See Omelenchuk v. Citv of Warren, 461 Mich. 567, 609 N.W.2d 177, 179 n. 11 (2000) (relying in part on definition of "health facility" contained in § 333. 20106(1) in observing that plaintiff asserting a claim against city for malpractice of emergency medical personnel must file notice under § 600.2912b).
Recognizing that the court could well conclude that the gravamen of his allegations sound in medical malpractice, plaintiff alternatively requests that he be allowed a "reasonable time" for discovery so that he might determine who committed professional negligence, thus enabling him to file an Affidavit of Merit against that person. Plaintiff argues that he has been unable to identify all of the records of the test(s) performed on his blood sample, and he concedes that at this point he cannot identify any person who violated the standard of care, whatever that may be. Plaintiff further contends that he has served discovery requests seeking "the actual test and the remaining blood to discover what happened to the tests."
M.C.L. § 600.2912d(3) addresses the situation where the defendant in a malpractice action fails to allow access to medical records within the time period required by § 600.2912b(6) (which references the statutory 182-day period). In this situation, § 600.2912d(3) provides, the Affidavit of Merit "may be filed within 91 days after the filing of the complaint." However, plaintiff's argument that he requires additional time to obtain the medical records necessary in order to procure an Affidavit of Merit is contradicted by the allegations of his complaint, in which he states that, in connection with the filing necessary medical records[.]" Complaint, ¶ 4.
In addition, M.C.L. § 600.2912d(2) provides that "Upon motion of a party for good cause shown," the court in which the medical malpractice complaint is filed may grant the plaintiff or his attorney an extension of 28 days in which to file an Affidavit of Merit. However, plaintiff's complaint does not request a 28-day extension, nor could the court find "good cause" for an extension, given plaintiff's clear allegation that he was able to supply "all the necessary medical records" with his administrative claim. See Holmes v. Michigan Capital Medical Ctr., 242 Mich. App. 703, 620 N.W.2d 319, 322 (2000) (trial court erred in failing to grant defendants summary disposition, where trial court incorrectly reasoned that plaintiffs had good cause for filing late Affidavit of Merit; plaintiffs never sought or were granted a § 600.2912d(2) extension, and in any event complaint was filed beyond required date). In addition, the Michigan Supreme Court has, in dicta, suggested that "good cause" may be shown in the context of § 600.2912d(2) "by an expert's letter, indicating that a possible cause of the injury relates to the alleged negligent act or omission and that further time is required . . . in order to confirm the suspected cause." Solowy v. Oakwood Hosp. Corp., 454 Mich. 214, 561 N.W.2d 843, 849 n. 6 (1997). Plaintiff, of course, has not filed the motion expressly required by § 600.2912d(2), and therefore the court need not determine whether he has shown "good cause" for purposes of that provision.
Ten days after the defendants' motion was deemed fully brief pursuant to Local Rule 7.2(c), plaintiff filed a "Reply" to the defendants' reply, in which he argues that he is "making progress and just needs a little more time" for the United States to answer a request for production of "[t]he actual reports from the lab in Indianapolis and Indian [sic] University Lab." Once again, however, plaintiff fails to include an expert's letter substantiating the need for this information. At this point, it is unclear to the court whether plaintiff has to date sought the opinion of an expert, as required by M.C.L. § 600.2912d, regarding by the standard of practice or care that was allegedly breached at the VA. In addition, plaintiff does not state whether he sought pre-suit access to the relevant records, pursuant to either M.C.L. § 600.2912b(5) or 38 C.F.R. § 14.602 and 1.511(a)(2), but was denied that access — a circumstance which is covered by M.C.L.§ 600.2912d(3).
If plaintiff has not done so, he should take the medical records which he has to a qualified professional for review, so that he might be able to fulfill the requirements for filing an action for medical malpractice under Michigan law under M.C.L. § 600.2912d(1), (2), or (3). It is possible, depending on the nature of the alleged error that plaintiff might not be able to sue the United States at all. At this point, plaintiff's complaint, filed without the requisite Affidavit of Merit, is simply insufficient in itself to commence a cause of action, and is therefore dismissed without prejudice pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim under the applicable substantive law.
As the United States has argued, the FTCA contains an "independent contractor" exception. United States v. Orleans. 425 U.S. 807, 813-14 (1976) (citing 28 U.S.C. § 2671).