United States District Court, D. South Carolina, Columbia Division
David C. Belton, Plaintiff,
United States of America, Defendant.
ORDER AND OPINION
MARGARET B. SEYMOUR, SENIOR UNITED STATES DISTRICT JUDGE
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
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
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.
November 16, 2015, Plaintiff filed its Amended Complaint
alleging three informed consent claims and a fourth claim as
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
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.
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.
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