Doerfert et al v. Plowman et al

MOTION to Dismiss for Lack of Jurisdiction

N.D. Okla.January 20, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA MEGAN DOERFERT, individually, and as parent and next friend of MINOR CHILD, B.W.D., and RYAN DOERFERT, ) ) ) ) ) Plaintiffs, ) ) v. ) Case No. 17-CV-6-JHP-TLW ) PAUL PLOWMAN, M.D., ) GARY GASTON, M.D., TAHLEQUAH PEDIATRICS, PLLC, and SAINT FRANCIS HOSPITAL, INC., ) ) ) Removed from Tulsa County District Court Case No. CJ-2016-3324 ) Defendants. ) UNITED STATES OF AMERICA’S MOTION TO DISMISS COMES NOW the United States of America, on behalf of federal Defendant, Paul Plowman, M.D., by and through Danny C. Williams, Sr., United States Attorney for the Northern District of Oklahoma, and Cathryn D. McClanahan, Assistant United States Attorney, and respectfully requests this Court to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(1),(6)1 and Fed. R. Civ. P. 8(a)(1)-(2) and for failure to comply with the substantive law of OKLA. STAT. tit. 12, § 19.1. In support of this motion, the United States states the following: I. The Petition does not include a plain statement of the claim or grounds for jurisdiction showing Plaintiffs’ entitlement to relief as required by Fed. R. Civ. P. 8(a)(1)-(2). Federal Rule of Civil Procedure 8(a)(1) provides that a complaint must contain “a short and plain statement of the grounds for the court’s jurisdiction.” Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The Supreme Court has ruled that a complaint must contain 1 Dismissal is also proper under Fed. R. Civ. P. 12(b)(5) as Plaintiffs have failed to serve the Case 4:17-cv-00006-JHP-TLW Document 7 Filed in USDC ND/OK on 01/20/17 Page 1 of 11 2 enough allegations of fact “to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). As that case made clear, “a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (internal citations omitted). “The burden is on the plaintiff to frame a complaint with enough factual matter (taken as true) to suggest that he or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (internal citations omitted). In Robbins, the Tenth Circuit instructed that “the degree of specificity necessary to establish plausibility and fair notice, and therefore the need to include sufficient factual allegations, depends on context [and] the type of case.” Id. at 1248. “The purpose behind Rule 8 is to ‘give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.’” McNamara v. Brauchler, 570 F. App’x 741, 743 (10th Cir. 2014) (quoting Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993). “It is not the role of either the court or the defendant to sort through a lengthy, poorly drafted complaint and voluminous exhibits in order to construct plaintiff’s causes of action.” Schupper v. Edie, 193 F. App’x 744, 746 (10th Cir. 2006). The United States of America is entitled to sovereign immunity, save in the specific circumstances that a waiver is made clear. United States v. Testan, 424 U.S. 392, 399 (1976) (“It long has been established . . . that the United States, as sovereign, is immune from suit save as it consents to be sued . . . .” (internal quotation marks omitted)). Statutory text purporting to waive governmental immunity is strictly construed “in favor of the sovereign.” United States v. Nordic Village, Inc. 503 U.S. 30, 34 (1992). United States as required by Fed. R. Civ. P. 4(i). Case 4:17-cv-00006-JHP-TLW Document 7 Filed in USDC ND/OK on 01/20/17 Page 2 of 11 3 However, in the instant matter, Plaintiffs failed to state any statutory basis for any cause of action. Moreover, beyond listing him as a defendant in the Petition’s caption, Plaintiff makes no reference at all to Dr. Plowman in the Petition. Defendant is without notice as to what specific allegations it must defend against. II. The United States, and not Dr. Plowman, is the proper federal defendant in this matter. Plaintiffs allege medical malpractice relative to the birth of Minor Child B.W.D. Dr. Plowman was the “on call” OBGYN at Tahlequah City Hospital at the time of B.W.D.’s birth, and Plaintiffs apparently allege personal injury damages as a result of Dr. Plowman’s actions. Dr. Plowman was employed as an OBGYN with Northeastern Oklahoma Community Health Centers, Inc. (“NEOCHC”), a federally qualified health center, under whose approved grant application hospital admitting and medical rounds are covered. The U.S. Department of Health and Human Services (“HHS”) has deemed NEOCHC’s employees to be employees of the U.S. Public Health Service (“PHS”), pursuant to the Federally Supported Health Centers Assistance Act (“FSHCAA”), 42 U.S.C. § 233(g)-(n), as amended by the Federally Supported Health Centers Assistance Act of 1995, Pub. L. No. 104-73. Accordingly, the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, shields NEOCHC’s employees, which include Dr. Paul Plowman, from liability while acting within the scope of their duties, with the United States assuming liability for any negligent acts they commit. See 42 U.S.C. § 233(g)(1). “Once the Secretary makes a determination that an entity or an officer, governing board member, employee, or contractor of an entity is deemed to be an employee of the Public Health Service for purposes of this section, the determination shall be final and binding upon the Secretary and the Attorney General and other parties to any civil action or proceeding.” 42 U.S.C. § 233(g)(1)(F). Case 4:17-cv-00006-JHP-TLW Document 7 Filed in USDC ND/OK on 01/20/17 Page 3 of 11 4 Under the FSHCAA, the FTCA provides the exclusive remedy for medical malpractice by a federally funded health center (and its officers, employees, and contractors) that the HHS Secretary has deemed to be an employee of the PHS. 42 U.S.C. § 233(g)(1)(A). According to the FTCA, the only proper federal defendant in such actions is the United States. See Oxendine v. Kaplan, 241 F.3d 1272, 1275 n. 4 (10th Cir. 2001) (Negligence claims against federal agents may only be brought under the FTCA and against the United States). III. This action must be dismissed due to Plaintiffs’ failure to exhaust their administrative remedies. Under the FTCA, an “action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death” unless the claimant has first exhausted administrative remedies. 28 U.S.C. § 2675(a) (requiring presentment of the claim to the appropriate federal agency and the agency’s final denial of the claim). “‘Because the FTCA constitutes a waiver of the government’s sovereign immunity, the notice requirements established by the FTCA must be strictly construed. The requirements are jurisdictional and cannot be waived.’” Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852 (10th Cir. 2005) (citing 28 U.S.C. § 1346(b)) (quoting Bradley v. United States ex rel. Veterans Admin., 951 F.2d 268, 270 (10th Cir. 1991)). Moreover, “[t]he jurisdictional statute, 28 U.S.C. § 2675(a), ‘requires that claims for damages against the government be presented to the appropriate federal agency by filing (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. (quoting Bradley, 951 F.2d at 270) (other citation and internal quotation marks omitted); See also 28 U.S.C. § 2675(a). Generally, the presentation of such a claim to the agency must occur within two years after the claim accrues. 28 U.S.C. § 2401(b). In this matter, Plaintiffs have alleged that a deemed federal employee was negligent in the Case 4:17-cv-00006-JHP-TLW Document 7 Filed in USDC ND/OK on 01/20/17 Page 4 of 11 5 treatment rendered relative to the birth of Minor Child B.W.D. However, as indicated by the attached declaration, 2 Plaintiffs have not filed an administrative claim. See Exhibit 1. If an FTCA plaintiff has not exhausted administrative remedies at the time she files her action, her failure to do so is a jurisdictional defect that cannot be cured by a subsequent amendment of the complaint. Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999) (generally, a premature FTCA complaint cannot be cured through amendment, but instead, plaintiff must file a new suit; “[a]llowing claimants generally to bring suit under the FTCA before exhausting their administrative remedies and to cure the jurisdictional defect by filing an amended complaint would render the exhaustion requirement meaningless and impose an unnecessary burden on the judicial system.”); See also Hill v. Pugh, 75 F. App’x 715, 717-18 (10th Cir. 2003); Buhl v. United States, 117 F. App’x 39, 42 (10th Cir. 2004) (“The FTCA imposes a jurisdictional bar against claims brought before the exhaustion of administrative remedies.”). Consequently, this action should be dismissed. IV. The Petition should be dismissed for failure to attach the required affidavit of merit. Plaintiffs have set forth claims for relief allegedly arising from negligent medical treatment rendered by a federal defendant, among others. It is assumed that Plaintiffs intended to bring this action under the laws of the State of Oklahoma, although the Petition contains no citations to any such law. 2 “When a party challenges the allegations supporting subject-matter jurisdiction, the court has wide discretion to allow affidavits [and] other documents . . . to resolve disputed jurisdictional facts. In such instances, a court’s reference to evidence outside the pleadings does not convert the motion to dismiss to a Rule 56 motion for summary judgment.” Davis ex rel. Davis v. United States, 343 F.3d 1282, 1296 (10th Cir. 2003) (internal citations omitted). “Because exhaustion of administrative remedies is not an aspect of a substantive claim of discrimination, consideration of documents outside the pleadings is appropriate to resolve a jurisdictional challenge on a motion to dismiss.” Wyatt v. Donahoe, No. 11-CV-62-CVE-FHM, 2011 WL 3626761, at *2 (N.D. Okla., Aug. 17, 2011) (citing Davis, 343 F.3d at 1296). Case 4:17-cv-00006-JHP-TLW Document 7 Filed in USDC ND/OK on 01/20/17 Page 5 of 11 6 Plaintiffs’ Petition should be dismissed for failure to attach the affidavit of merit required by OKLA. STAT. tit. 12, § 19.1 (effective December 9, 2013), which states as follows: A. 1. In any civil action for negligence wherein the plaintiff shall be required to present the testimony of an expert witness to establish breach of the relevant standard of care and that such breach of duty resulted in harm to the plaintiff, except as provided in subsection B of this section, the plaintiff shall attach to the petition an affidavit attesting that: a. the plaintiff has consulted and reviewed the facts of the claim with a qualified expert, b. the plaintiff has obtained a written opinion from a qualified expert that clearly identifies the plaintiff and includes the determination of the expert that, based upon a review of the available material including, but not limited to, applicable records, facts or other relevant material, a reasonable interpretation of the facts supports a finding that the acts or omissions of the defendant against whom the action is brought constituted negligence, and c. on the basis of the review and consultation of the qualified expert, the plaintiff has concluded that the claim is meritorious and based on good cause. If a civil action for negligence that must be proven by expert testimony is filed without the required affidavit, and no extension of time is subsequently granted by the court upon a showing of good cause, “the court shall, upon motion of the defendant, dismiss the action without prejudice to its refiling.” Id. at § 19.1(A)(2). The United States is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit. United States v. Sherwood, 312 U.S. 584, 586 (1941); Union Pac. R.R. Co. v. United States, 591 F.3d 1311, 1313 (10th Cir. 2010), citing United States v. Mitchell, 445 U.S. 535, 538 (1980). The FTCA operates as a limited waiver of immunity, providing that “the United States is liable for its tortious conduct in the same manner and to the same extent as a private individual under like circumstances in that jurisdiction would be liable.” Haceesa v United States, 309 F.3d 722, 725 Case 4:17-cv-00006-JHP-TLW Document 7 Filed in USDC ND/OK on 01/20/17 Page 6 of 11 7 (10th Cir. 2002) (citing 28 U.S.C. §§ 1346(b), 2674). The “source of substantive liability under the FTCA” is the law of the state where the alleged negligent act or omission occurred. FDIC v. Meyer, 510 U.S. 471, 477-78 (1994). The negligent acts or omissions alleged by Plaintiffs occurred in Oklahoma. Under Oklahoma law, “‘in all but the extraordinary medical malpractice case, the plaintiff has the burden of producing expert testimony to support a prima facie case of negligence.’ [citation omitted] As a general rule, the ‘testimony of a qualified physician is essential to establish a reasonable probability the physician’s negligence caused the injury.’” Patel v. United States, 399 F. App’x 355, 359 (10th Cir. 2010) (quoting Roberson v. Jeffrey M. Waltner, M.D., Inc., 108 P.3d 567, 569 (Okla. Civ. App. 2005). The instant case is, for substantive reasons, subject to the mandates of OKLA. STAT. tit. 12, § 19.1. The Tenth Circuit has held that a similar Colorado certificate of review statute is applicable to negligence claims brought against the United States under the FTCA. Hill v. Smithkline Beecham Corp., 393 F.3d 1111, 1117 (10th Cir. 2004). “[T]o hold that the United States is not entitled to the protection of the certificate of review requirement would place it in a differently situated position than private parties defending against professional negligence claims in Colorado, thereby undermining the conditions precedent to the United States’ waiver of sovereign immunity in the FTCA.” Id. at 1118. The United States should likewise be provided the similar benefit of Oklahoma law provided by § 19.1. In 2012, the Tenth Circuit reiterated that under the FTCA, “the United States is liable for its tortious conduct in the same manner and to the same extent as a private individual under like circumstances in that jurisdiction would be liable” and ruled that a Wyoming statute, providing that no complaint alleging malpractice shall be filed in any court against a health care provider before a claim is made to the panel and its decision is rendered, is a substantive law which is therefore applicable to FTCA lawsuits. Van Case 4:17-cv-00006-JHP-TLW Document 7 Filed in USDC ND/OK on 01/20/17 Page 7 of 11 8 Dyke v. United States, 457 F. App’x 721, 725-26 (10th Cir. 2012). Decisions in the Western District of Oklahoma and the Northern District of Oklahoma have determined that a statute requiring an affidavit of merit in certain negligence cases is substantive law applicable to an FTCA suit against the United States. Norman v. United States ex rel. Veteran’s Admin. Med. Ctr., No. CIV-12-663-C, 2013 WL 425032, at *2 (W.D. Okla. Feb. 4, 2013) (ruling on OKLA. STAT. tit. 12, § 19,3 the predecessor to § 19.1); Flud v. United States, ex rel. Dep’t of Veterans Affairs, No. 10-CV-725-GKF-TLW, 2011 WL 2551535 (N.D. Okla. Jun. 27, 2011)4 (ruling on OKLA. STAT. tit. 12, § 19, the predecessor to § 19.1).5 The Colorado, Wyoming, and Oklahoma statutes addressed above all “aim to weed out frivolous claims.” Flud, 2011 WL 2551535, at *1. This Court, in a recent ruling dismissing a plaintiff’s complaint for failure to state a claim and allowing an amended complaint, instructed the plaintiff to file the affidavit of merit required by § 19.1. Horan v. Detello, No. 15-CV-51-CVE-PJC, 2015 WL 4132908 (N.D. Okla. Jul. 8, 2015). Plaintiffs filed this lawsuit without the affidavit of merit required by Oklahoma law. Thus the United States moves the Court to dismiss Plaintiffs’ Petition pursuant to § 19.1(A)(2)(b). V. Plaintiffs’ Petition was filed out of time and should be dismissed. Plaintiffs’ case as filed in Tulsa County District Court No. CJ-2016-3324, and now 3 Section 19 was held unconstitutional by the Oklahoma Supreme Court in Wall v. Marouk, 302 P.3d 775, 777-79 (Okla. 2013) and Douglas v. Cox Ret. Props., Inc., 302 P.3d 789, 793-94 (Okla. 2013) for infirmities that do not afflict Section 19.1. See Caballero v. Safeco Ins. Co. of Am., Inc., No. 14-CV-1336, 2015 WL 4141448 (W.D. Okla. Apr. 3, 2015) (Attorney General’s Brief on the Merits of the Constitutional Claims). 4 Reversed and remanded by Flud v. United States, ex rel. Dep’t. of Veterans Affairs, 528 F. App’x 796 (10th Cir. 2013), due to unconstitutionality of § 19. 5 But cf., Horsechief v. United States, No. 10-CV-614-JHP-TLW, 2012 WL 5995691, at *2 (N.D Okla. Nov. 30, 2012) (ruling on motion by private defendant that OKLA. STAT. tit. 12, § 19 is not applicable to a claim against a private defendant where federal jurisdiction is based upon diversity); Sanders v. Glanz, No. 14-CV-569-JED-FHM, 2015 WL 5797026, at *11 (N.D. Okla. Sept. 30, 2015). Case 4:17-cv-00006-JHP-TLW Document 7 Filed in USDC ND/OK on 01/20/17 Page 8 of 11 9 removed to this Court, is a refiling of an earlier suit filed as CJ-2015-1115 in Tulsa County District Court. After failing to obtain service on the defendants, Plaintiffs dismissed their 2015 suit without prejudice on October 21, 2015. The Petition at issue was filed on September 14, 2016, and concerns the birth of Minor Child B.W.D. on March 23, 2013. Dkt. 2-2 at 1. Generally, a claim under the FTCA must be presented to the agency within two years after the claim accrues. 28 U.S.C. § 2401(b). Plaintiffs’ 2016 suit was filed over three years after the claim accrued as alleged. Moreover, Plaintiffs have never presented the federal agency with an administrative claim. To the extent Plaintiffs’ 2016 Petition is relying on the Oklahoma saving provision6, this reliance is misplaced as the Oklahoma saving provision is not applicable to the FTCA limitations period. Pipkin v. USPS, 951 F.2d 272, 274-275 (10th Cir. 1991); see also Franklin Savings Corp. v. United States, 385 F.3d 1279, 1288 (10th Cir. 2004) (“there is no legal basis for applying a state saving statute under the FTCA”)”; Staples v. United States, CIV-10-1007, 2011 WL 1225738, at *2 (W.D. Okla. Mar. 7, 2011), report and recommendation adopted in Staples v. United States, CIV-10-1007, 2011 WL 1194660 (W.D. Okla. Mar. 30, 2011); Brown v. Hartshorne Public School Dist. No. 1, 926 F.2d 959, 961 (10th Cir. 1991) (abrogated on other grounds as stated in Keeler v. Cereal Food Processors, 250 F. App’x 857, 859 (10th Cir. 2007)) (“When Congress has provided a federal statute of limitation for a federal claim . . . state tolling and saving provisions are not applicable.”); Collins v. McHugh, 14-CV-526-JHP, 2015 WL 4111324, at *2 (E.D. Okla. July 7, 2015). 6 OKLA. STAT. tit. 12, § 100 provides, in relevant part: “If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail[s] in such action otherwise than upon the merits, the plaintiff . . . may commence a new action within one (1) year after the reversal or failure although the time limit for commencing the action shall have expired before the new action is filed.” Case 4:17-cv-00006-JHP-TLW Document 7 Filed in USDC ND/OK on 01/20/17 Page 9 of 11 10 Thus Plaintiffs have failed to satisfy the timing requirement of 28 U.S.C. § 2401(b), the federal government enjoys sovereign immunity in this matter, and the Court must dismiss it for lack of subject matter jurisdiction. Dahl v. United States, 319 F.3d 1226, 1228 (10th Cir. 2003). WHEREFORE, the United States of America, on behalf of federal Defendant, Paul Plowman, M.D., respectfully requests that the Court dismiss the Petition, as it lacks subject matter jurisdiction, fails to state a claim upon which relief can be granted, and fails to comply with OKLA. STAT. tit. 12, § 19.1(A). Respectfully submitted, UNITED STATES OF AMERICA DANNY C. WILLIAMS, SR. United States Attorney s/Cathryn D. McClanahan CATHRYN D. McCLANAHAN, OBA No. 14853 Assistant United States Attorney 110 West 7th Street, Suite 300 Tulsa, Oklahoma 74119 T: 918-382-2700 cathy.mcclanahan@usdoj.gov Case 4:17-cv-00006-JHP-TLW Document 7 Filed in USDC ND/OK on 01/20/17 Page 10 of 11 11 CERTIFICATE OF SERVICE I hereby certify that on January 20, 2017, I electronically transmitted the foregoing to the Clerk of Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Darren M. Tawwater Larry A. Tawwater dtaw@tawlaw.com lat@tawlaw.com Counsel for Plaintiffs The United States does not possess contact information for Defendants Gary Gaston, M.D., Tahlequah Pediatrics, PLLC, or Saint Francis Hospital, Inc. and is consequently unable to transmit the foregoing to them. s/Chris Watson Chris Watson Paralegal Specialist Case 4:17-cv-00006-JHP-TLW Document 7 Filed in USDC ND/OK on 01/20/17 Page 11 of 11 Exhibit 1 Case 4:17-cv-00006-JHP-TLW Document 7-1 Filed in USDC ND/OK on 01/20/17 Page 1 of 4 Exhibit 1 Case 4:17-cv-00006-JHP-TLW Document 7-1 Filed in USDC ND/OK on 01/20/17 Page 2 of 4 Exhibit 1 Exhibit 1 to Declaration Case 4:17-cv-00006-JHP-TLW Document 7-1 Filed in USDC ND/OK on 01/20/17 Page 3 of 4 Exhibit 1 Exhibit 1 to Declaration Case 4:17-cv-00006-JHP-TLW Document 7-1 Filed in USDC ND/OK on 01/20/17 Page 4 of 4