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Belton v. United States

United States District Court, D. South Carolina, Columbia Division

July 19, 2016

David C. Belton, Plaintiff,
v.
United States of America, Defendant.

          ORDER AND OPINION

          MARGARET B. SEYMOUR, SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the court on Defendant United States of America’s (“Defendant’s”) Motion to Dismiss and Amended Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). ECF No. 8; ECF No. 26.

         I. Background

         On April 1, 2015, Plaintiff David C. Belton (“Plaintiff”) brought the within action against Defendant pursuant to the Federal Tort Claims Act (“FTCA” or “the Act”), 28 U.S.C. §§ 2671 et seq.. ECF No. 1 (Complaint). Plaintiff alleges he sustained injuries during surgery due to medical malpractice by doctors at the Dorn VA Medical Center in Columbia, South Carolina. See Id. On June 2, 2015, Defendant filed a motion pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss the Complaint for lack of jurisdiction. ECF No. 8. Defendant argued that Plaintiff failed to bring claims against an employee of the United States. Id. On June 25, 2015, Plaintiff filed an Amended Complaint seeking to cure the jurisdictional defect. ECF No. 11. In response, Defendant argued that the Amended Complaint did not establish subject matter jurisdiction because (1) the Amended Complaint did not allege that Plaintiff suffered injury caused by an employee of the United States; and (2) prior to this action, Plaintiff’s Form SF95, which was submitted as part of the administrative claim process, did not provide adequate notice to the Department of Veterans Affairs (“VA”) about the claims in the Amended Complaint. ECF No. 12. On July 24, 2015, the court issued an Opinion and Order denying the Motion to Amend as futile and granting the Motion to Dismiss for lack of subject matter jurisdiction. ECF No. 14. The court found dispositive the issue of injury caused by an employee of the United States; therefore, the court did not address the adequacy of the notice provided Defendant. Id.

         On August 10, 2015, Plaintiff filed a Motion for Reconsideration pursuant to Fed.R.Civ.P. 59(e), arguing that the court “misread and misapprehended the plaintiff’s Proposed Amended Complaint and erred in denying the plaintiff’s motion to amend.” ECF No. 16. After considering the arguments of the parties, the court concluded that Plaintiff’s proposed Amended Complaint alleged injuries caused by employees of the United States; therefore, the court reconsidered its ruling, granted Plaintiff’s Motion to Amend the Complaint, and vacated its Opinion and Order granting Defendant’s Motion to Dismiss. ECF No. 20. The court held the Motion to Dismiss in abeyance pending a limited discovery period designed to allow the parties to assess the scope of the VA’s internal investigation and whether Plaintiff’s Form SF95 provided adequate notice to Defendant. Id.

         On November 16, 2015, Plaintiff filed its Amended Complaint alleging three informed consent claims and a fourth claim as follows:

9. That the VA deviated from the standard of care in its treatment of the plaintiff and was negligent and reckless in the care and treatment in the following particulars:
a. In failing to disclose that a risk of the ablation procedure including the risk that the plaintiff could suffer a paralyzed diaphragm;
b. In failing to obtain a valid informed consent from the plaintiff;
c. In failing to tell the plaintiff anything about Dr. Savoca or his training, experience and qualifications; and
d. In failing to promptly diagnose and commence proper treatment of the plaintiff’s paralyzed diaphragm and in exposing the plaintiff to unnecessary and useless medical care for some six months until a correct diagnosis was made by the VA doctors.

ECF No. 24 at ¶ 9.

         On December 18, 2015, Defendant filed an Amended Motion to Dismiss for Lack of Jurisdiction. ECF No. 26. Defendant argued that the Form SF95 did not provide adequate notice for the informed consent claims (ECF No. 24 at ¶9a-c) presented in the Amended Complaint. Id. On January 7, 2016, Plaintiff responded by alleging that Defendant did not provide information about the adequacy of notice and Defendant failed to fully participate in the period of limited discovery. ECF No. 27. At a hearing on March 21, 2016, the court held the Amended Motion to Dismiss in abeyance and ordered Defendant to respond to Plaintiff’s interrogatories. ECF No. 31. On May 6, 2016, Plaintiff submitted a supplement to the Amended Motion to Dismiss, notifying the court that Plaintiff was withdrawing his lack of informed consent claims. ECF No. 34.

         On June 14, 2016, the court issued a text order instructing the parties to submit supplemental briefing addressing the scope of the VA’s investigation and whether Plaintiff’s Form SF95 provided adequate notice to Defendant. ECF No. 37. On June 22, 2016, Defendant responded with a detailed argument informing the court that the Form SF95 did not provide adequate notice for the informed consent claims presented in Plaintiff’s Amended Complaint. ECF No. 38. By response filed on July 1, 2016, Plaintiff reiterated that he had withdrawn all of his informed consent claims. Plaintiff noted that Defendant did not argue that the allegations in the Form SF95 were insufficient notice as to Plaintiff’s remaining claim against Defendant for failing to promptly diagnose and commence treatment of ...


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