United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Richard Mark Gergef United States District Court
matter is before the Court on the Report and Recommendation
("R & R") of the Magistrate Judge (Dkt. No. 43)
recommending the Court grant the Defendant's Motion to
Dismiss. (Dkt. No. 36.) For the reasons set below, the Court
adopts the R & R as the order of the Court and the case
Neal Gerald Thomas filed a Complaint against the Ralph H.
Johnson VA Medical Center alleging negligence. (Dkt. No. 11.)
The complaint alleges that the Defendant provided "false
medical diagnosis that plaintiff was/is suffering from a
neurological disease including schizophrenia, delusions,
[and] psychotic." (Id.) Defendant filed a
Motion to Dismiss on December 12, 2018, alleging Plaintiffs
claim sounded in medical malpractice and therefore required
an affidavit of an expert witness under South Carolina law.
(Dkt. No. 36.) Plaintiff filed a Response on January 14,
2019, which included four documents labeled
"Affidavit/Declaration," signed by Plaintiff. (Dkt.
No. 42.) Plaintiffs Response alleged his claim sounded in
ordinary negligence because it was a matter of "common
knowledge and common sense," and therefore did not
require an affidavit. (Dkt. No. 42.) On January 28, 2019, the
Magistrate Judge issued and R & R recommending dismissal
of the case because Plaintiff failed to file the requisite
affidavit of an expert witness. (Dkt. No. 43.)
Legal Standard A. Pro Se
Court liberally construes complaints filed by pro se
litigants to allow the development of a potentially
meritorious case. See Cruz v. Beto, 405 U.S. 319
(1972); Haines v. Kerner, 404 U.S. 519 (1972). The
requirement of liberal construction does not mean that the
Court can ignore a clear failure in the pleadings to allege
facts which set forth a viable federal claim, nor can the
Court assume the existence of a genuine issue of material
fact where none exists. See Weller v. Dep't of Social
Services, 901 F.2d 387 (4th Cir. 1990).
Report and Recommendation
Magistrate Judge makes only a recommendation to this Court
that has no presumptive weight. The responsibility to make a
final determination remains with the Court. See Mathews
v. Weber, 423 U.S. 261, 270-71 (1976). The Court may
"accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1). This Court must make
a de novo determination of those portions of the R
& R Plaintiff specifically objects to. Fed.R.Civ.P.
72(b)(2). Where Plaintiff fails to file any specific
objections, "a district court need not conduct a de
novo review, but instead must only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation." Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (internal quotation omitted). "Moreover, in the
absence of specific objections to the R & R, the Court
need not give any explanation for adopting the
recommendation." Wilson v. S. C. Dept of Corr.,
No. 9:14-CV-4365-RMG, 2015 WL 1124701, at *1 (D.S.C. Mar. 12,
2015). See also Camby v. Davis, 718 F.2d 198, 200
(4th Cir. 1983). Plaintiff did not file objections in this
case, and the R & R is therefore reviewed for clear
Motion to Dismiss
12(b)(6) of the Federal Rules of Civil Procedure permits the
dismissal of an action if the complaint fails "to state
a claim upon which relief can be granted." Such a motion
tests the legal sufficiency of the complaint and "does
not resolve contests surrounding the facts, the merits of the
claim, or the applicability of defenses.... Our inquiry then
is limited to whether the allegations constitute 'a short
and plain statement of the claim showing that the pleader is
entitled to relief.'" Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (quotation
marks and citation omitted). In a Rule 12(b)(6) motion, the
Court is obligated to "assume the truth of all facts
alleged in the complaint and the existence of any fact that
can be proved, consistent with the complaint's
allegations." E. Shore Mkts., Inc. v. J.D. Assocs.
Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
However, while the Court must accept the facts in a light
most favorable to the non-moving party, it "need not
accept as true unwarranted inferences, unreasonable
conclusions, or arguments." Id.
survive a motion to dismiss, the complaint must state
"enough facts to state a claim to relief that is
plausible on its face." Bell Ail. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Although the
requirement of plausibility does not impose a probability
requirement at this stage, the complaint must show more than
a "sheer possibility that a defendant has acted
unlawfully." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A complaint has "facial plausibility"
where the pleading "allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id.
threshold issue is whether Plaintiffs brings a claim for
medical malpractice or for negligence. A Plaintiff "has
an [Federal Tort Claims Act (FTCA)] cause of action against
the government only if she would also have a cause of action
under state law against a private person in like
circumstances." Miller v. United States, 932
F.2d 301, 303 (4th Cir. 1991). Therefore, under the FTCA,
South Carolina requirements regarding professional negligence
complaints are applicable to Plaintiffs claim. See
Id. Under South Carolina law, a plaintiff must file an
affidavit of an expert witness when initiating a claim for
medical malpractice. S.C. Code Ann. § 15-79-125. To the
extent Plaintiffs actually brings a claim for medical
malpractice, the statutory requirement under S.C. Code Ann.
§ 15-79-125 must be satisfied for the case to proceed.
See Cook v. United States, No. 0:14-CV-1169-RMG,
2015 WL 2160098, at *3 (D.S.C. May 7, 2015),
aff'd, 621 Fed.Appx. 231 (4th Cir. 2015).
Allen v. United States, No. 2:13-CV-2740-RMG, 2015
WL 1517510, at *1 (D.S.C. Apr. 1, 2015) ("[F]ailure to
file such an affidavit with the Complaint requires dismissal
of the case.").
explaining when a claim is brought under medical malpractice
rather than negligence, courts have stated that "when a
negligence claim arises from injuries resulting from
negligent medical treatment, the action is one for medical
malpractice." Millmine v. Harris, 2011 WL
317643, at *1 (D.S.C. Jan. 31, 2011)". See also
Dawkins v. Union Hosp. Dist.,408 S.C. 171, 178, 758
S.E.2d 501, 504 (2014) (holding that professional standard of
care applies where professional provides "medical
services to a patient"). Therefore, courts in this
district have construed alleged negligence claims as ones for
medical malpractice where Plaintiffs allege misdiagnosis,
improper treatment, or failure to diagnose. See Delaney
v. United States,260 F.Supp.3d 505, 510 (D.S.C. 2017)
(granting summary judgment for failure to produce expert
testimony where court found that Plaintiffs claim that
hospital failed to identify signs that "an individual
may hurt others" rested "on the specialized
knowledge that medical professionals ... possess");
Craig v. United States, No. 216CV03737TMCMGB, 2017
WL 6452412, at *1 (D.S.C. Nov. 6, 2017), report and
recommendation adopted, No. 2:16-CV-03737-TMC, 2017 WL
6408968 (D.S.C. Dec. 15, 2017) (granting motion to dismiss
for failure to ...