Rosario Rodriguez v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

)

JOSE A. ROSARIO RODRIGUEZ, )

)

Plaintiff, )

) Civil Action No. 21-cv-0411-LKG

v. )

) Dated: August 8, 2022

UNITED STATES OF AMERICA, )

)

Defendant. )

)

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiff, Jose A. Rosario Rodriguez, brings this medical malpractice action against the

United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80 and 1346 (the

“FTCA”). See generally Am. Compl., ECF No. 21. The Government has moved to dismiss this

matter for lack of subject-matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1). See Def. 1st

Mot., ECF No. 20; Def. 2nd Mot., ECF No. 23. These motions are fully briefed. See generally

Pl. Resp., ECF No. 24; Def. Reply, ECF No. 25. No hearing is necessary to resolve the motions.

See L.R. 105.6 (D. Md. 2021). For the reasons that follow, the Court DENIES the

Government’s motions to dismiss.

II. FACTUAL AND PROCEDURAL BACKGROUND1

A. Factual Background

Plaintiff, Jose A. Rosario Rodriguez, brings this FTCA medical malpractice action

against the United States related to medical treatment that he received at the Walter Reed

1 The facts recited in this Memorandum Opinion and Order are taken from the amended complaint (“Am.

Compl.”); the Government’s motions to dismiss (“Def. 1st Mot.” and “Def. 2nd Mot.”), and memoranda

in support thereof (“Def. 1st Mem.” and “Def. 2nd Mem.”); plaintiff’s responses to the Government’s

motions to dismiss (“Pl. 1st Resp.” and “Pl. 2nd Resp.”); and the Government’s reply brief (“Def.

Reply”).

National Military Medical Center (“Walter Reed”). See generally Am. Compl. As relief,

plaintiff seeks to recover monetary damages from the Government. Id. at Prayer for Relief.

As background, plaintiff is a resident of Virginia and a military retiree. See id. at ¶¶ 1, 7.

Plaintiff alleges in the amended complaint that he has suffered from plantar wart clusters on his

right foot for several years. Id. at ¶ 7. To alleviate this condition, plaintiff sought medical

treatment to remove the wart clusters at Walter Reed on February 27, 2018. Id. at ¶¶ 7-8.

Plaintiff alleges that he experienced “excruciating” pain after receiving this medical

procedure. Id. at ¶ 10. And so, he was referred by the medical staff at Walter Reed to Dr.

Mukesh Bhakta three days after the medical procedure. Id. at ¶¶ 10-14.

On March 2, 2018, Dr. Bhakta elected to drain the blister on plaintiff’s right foot. Id. at ¶

17. Thereafter, plaintiff saw Dr. Bhakta for follow up appointments on March 16, 2018, and

April 6, 2018. Id. at ¶ 25. Plaintiff was again treated by Dr. Bhakta on July 20, 2018; March 4,

2019; and November 20, 2019. Id. at ¶¶ 25-26; see also Def. 2nd Mem. at 2. Dr. Bhakta

provided a summary of plaintiff’s condition in 2019, which included ongoing pain that required

some offloading. Am. Compl. at ¶ 26.

On February 11, 2020, plaintiff filed an administrative claim with the Department of the

Navy (the “Navy”) related to his medical treatment at Walter Reed. See Def. 2nd Mem. at 2,

ECF No. 23-1; see also Def. 2nd Mot. Ex. 1 (Standard Form 95). The Navy denied plaintiff’s

claim on or about September 3, 2020. See Def. 2nd Mem. at 2-3; see also Def. 2nd Mot. Ex. 2

(“Final Denial”).

Plaintiff commenced this matter on February 18, 2021. See generally Compl., ECF No.

1. On May 10, 2021, plaintiff filed a claim form, a statement of claim, and a certificate of

qualified expert and report signed by Dr. Bhakta with the Director of the Maryland Health

Claims Alternative Dispute Resolution Office (the “HCADRO”). See Def. 2nd Mem. at 3; see

also Pl. Suppl. Resp. at 14, ECF No. 18-1. It is undisputed that plaintiff’s statement of claim and

certificate of qualified expert were filed with the HCADRO after the six-month statutory

deadline in this case for bringing an action under the FTCA. See Def. 2nd Mem. at 3; Pl. Resp.

at 3; see also 28 U.S.C. § 2401(b).

B. Procedural Background

Plaintiff commenced this action on February 18, 2021, and he amended the complaint on

November 2, 2021. See generally Compl.; Am. Compl. The Government initially moved to

dismiss this matter for lack of subject-matter jurisdiction on October 26, 2021. See generally

Def. 1st Mot.; Def. 1st Mem., ECF No. 20-1. After plaintiff amended the complaint, the

Government filed a renewed motion to dismiss this matter for lack of subject-matter jurisdiction

on November 16, 2021. See generally Def. 2nd Mot.; Def. 2nd Mem.

Plaintiff filed a response in opposition to the Government’s motions to dismiss on

November 18, 2021. See generally Pl. Resp. The Government filed a reply in support of its

renewed motion to dismiss on December 2, 2021. See generally Def. Reply.

The Government’s motions to dismiss having been fully briefed, the Court resolves the

pending motions.

III. LEGAL STANDARDS

A. Fed. R. Civ. P. 12(b)(1)

A motion to dismiss for lack of subject-matter jurisdiction, pursuant to Fed. R. Civ. P.

12(b)(1), is a challenge to the Court’s “competence or authority to hear the case.” Davis v.

Thompson, 367 F. Supp. 2d 792, 799 (D. Md. 2005). The United States Supreme Court has

explained that subject-matter jurisdiction is a “threshold matter” that is “inflexible and without

exception.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1995) (quoting

Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)). And so, an objection that the

Court lacks subject-matter jurisdiction “may be raised by a party, or by a court on its own

initiative, at any stage in the litigation, even after trial and the entry of judgment.” Arbaugh v.

Y&H Corp., 546 U.S. 500, 506 (2006).

The United States Court of Appeals for the Fourth Circuit has also explained that the

plaintiff bears the burden of establishing that subject-matter jurisdiction exists. Evans v. B.F.

Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (citing Richmond, Fredericksburg & Potomac

R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991)). Given this, deciding a motion to

dismiss pursuant to Fed. R. Civ. P. 12(b)(1), the Court “regard[s] the pleadings as mere evidence

on the issue[] and may consider evidence outside the pleadings without converting the

proceeding to one for summary judgment.” Id. (citation omitted). And so, if a plaintiff “fails to

allege facts upon which the court may base jurisdiction,” the Court should grant a motion to

dismiss for lack of subject-matter jurisdiction. Davis, 367 F. Supp. 2d at 799 (citation omitted).

B. FTCA Claims

The Federal Tort Claims Act waives “the sovereign immunity of the United States for

certain torts committed by federal employees acting within the scope of their employment.”

Brownback v. King, 141 S. Ct. 740, 746 (2021) (quoting FDIC v. Meyer, 510 U.S. 471, 475-76

(1994) (internal quotation marks omitted)). Pursuant to the FTCA, the United States district

courts have jurisdiction, with certain exceptions, over claims for money damages resulting from

“the negligent or wrongful act or omission of any employee of the [g]overnment while acting

within the scope of his office or employment,” so long as “a private person[] would be liable to

the claimant in accordance with the law of the place where the act or omission occurred.” 28

U.S.C. § 1346(b)(1); see also Jackson v. United States, 77 F. Supp. 2d 709, 712 (D. Md. 1999)

(“Under the [FTCA], the United States will be liable for acts or omissions of its agents that are

tortious under the law of the place where the act or omission occurred.”).

To bring a cognizable claim under the FTCA, a plaintiff must show that his claim is:

[1] against the United States, [2] for money damages, . . . [3] for injury or loss of property, or

personal injury or death [4] caused by the negligent or wrongful act or omission of any employee

of the Government [5] while acting within the scope of his office or employment, [6] 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 Meyer, 510 U.S. at

477 (quoting 28 U.S.C. § 1346(b)) (brackets existing). This Court applies Maryland law when

considering a FTCA claim based upon events that occurred in Maryland. See Unus v. Kane, 565

F.3d 103, 117 (4th Cir. 2009) (holding that the FTCA “does not itself provide for a substantive

cause of action[,]” but rather requires courts to “apply the substantive law of the state where the

alleged tort took place”); see also Coleman v. United States, 369 F. App’x 459, 461 (4th Cir.

2010) (“Since the incident in question occurred in Maryland, then Maryland substantive law

applies.”).

When “FTCA claims relate to allegedly deficient health care, Maryland law requires that

[a plaintiff must] comply with the requirements of the Maryland Health Care Malpractice Claims

Act (the “HCMCA”), which establishes the state procedure for medical malpractice actions.”

Gambino v. Hershberger, No. 17-1701, 2019 WL 1300856, at *8 (D. Md. Mar. 20, 2019)

(citations omitted). The HCMCA provides that before filing a medical malpractice tort claim

“against a health care provider for . . . medical injury,” a plaintiff must submit the claim within

90 days to the Maryland Health Care Alternative Dispute Resolution Office to undergo

arbitration. See Md. Code Ann., Cts. & Jud. Proc. §§ 3-2A-04(a)(1)(i), (b)(1)(i). The plaintiff

must submit with the claim “a certificate of a qualified expert . . . attesting to departure from

standards of care, and that the departure from standards of care is the proximate cause of the

alleged injury.” See id. at § 3-2A-04(b)(1)(i). And so, this Court has held that compliance with

the HCMCA’s requirements “is a condition precedent to bringing a medical malpractice

lawsuit.” Willever v. United States, 775 F. Supp. 2d 771, 777, 785 (D. Md. 2011); see also

Davison v. Sinai Hosp. of Balt., Inc., 617 F.2d 361, 362 (4th Cir. 1980) (affirming district court’s

dismissal of action on the ground that the HCMCA requires medical malpractice claims to be

presented to arbitration as a condition precedent to the commencement of a civil action in federal

court).

But, recently, the United States Court of Appeals for the Fourth Circuit has held that a

prisoner suing for medical malpractice under the FTCA and Bivens was not required to comply

with a requirement under West Virginia law that medical malpractice plaintiffs obtain a

“screening certificate of merit” before filing suit. Pledger v. Lynch, 5 F.4th 511, 518 (4th Cir.

2021) (en banc rehearing denied). The West Virginia law at issue in Pledger requires that

“would-be medical malpractice plaintiffs must serve on each putative defendant, at least thirty

days prior to filing suit, . . . a ‘screening certificate of merit’ from a health care provider who

qualifies as an expert under state law.” Id. at 518 (citations omitted). After applying the “well-

established, twostep framework for mediating any potential conflict” between West Virginia law

and the Federal Rules of Civil Procedure, the Fourth Circuit determined that various Federal

Rules of Civil Procedure, including Fed. R. Civ. P. 8, 11 and 12, are sufficiently broad to answer

whether a medical malpractice plaintiff in federal court must present an expert certificate “to

state a claim for medical negligence[.]” Pledger, 5 F.4th at 519. Because the Fourth Circuit

concluded that the West Virginia pre-filing certificate requirement is inconsistent and

“‘impossible to reconcile’” with these provisions of the Federal Rules, the Fourth Circuit held

that West Virginia’s expert certificate requirement “cannot apply” in federal court. Id. at 520.

And so, the Fourth Circuit concluded that failure to comply with such a pre-suit certification

requirement is not grounds for dismissal of a complaint filed pursuant to the FTCA. Id. at 518.

This Court has subsequently considered how Pledger would apply to the HCMCA’s pre-

suit filing requirements when FTCA claims are brought in this District on at least two occasions.

In DeBlois v. Corizon Health, Inc., this Court observed that, like the West Virginia law at issue

in Pledger, the HCMCA requires plaintiffs to have expert evidence to state a medical

malpractice claim. DeBlois v. Corizon Health, Inc., No. 20-1816, 2021 WL 3142003, at *21 (D.

Md. July 23, 2021). And so, the Court concluded that “[a]t a minimum, . . . Pledger appears to

instruct that [the plaintiff’s FTCA] suit cannot be dismissed for failure to comply with the

prefiling certificate requirements in the HCMCA.” Id. The Court similarly held that failure to

comply with the HCMCA cannot serve as grounds for dismissing a malpractice plaintiff’s FTCA

claim in Severe v. United States. Severe v. United States, No. 20-3404, 2021 WL 4521345, at

*16 (D. Md. Oct. 1, 2021)

IV. ANALYSIS

The Government has moved to dismiss this FTCA action, pursuant to Fed. R. Civ. P.

12(b)(1), upon the grounds that plaintiff failed to comply with the HCMCA’s pre-certification

requirement before commencing this case and the statute of limitations for plaintiff’s FTCA

claim expired before plaintiff satisfied that requirement on May 10, 2021. See Def. 1st Mem. at

5-7; Def. 2nd Mem. at 5-7.

Plaintiff counters that dismissal of his FTCA claim is not appropriate, in light of the

Fourth Circuit’s decision in Pledger v. Lynch. See Pl. 1st Resp. at 3-6; Pl. 2nd Resp. at 3-6.

And so, he requests that the Court deny the Government’s motions to dismiss. See Pl. 1st Resp.

at 11; Pl. 2nd Resp. at 1.

For the reasons that follow, the Court agrees with plaintiff that dismissal of this FTCA

case, due to his initial failure to comply with the HCMCA’s pre-suit certificate requirements, is

not appropriate. And so, the Court DENIES the Government’s motions to dismiss.

A. Dismissal Of This FTCA Action Is Not Warranted

The Government argues without persuasion that the Court should dismiss this FTCA

matter, because plaintiff failed to comply with the Maryland Health Care Malpractice Claims Act

prior to commencing this case. See Def. 1st Mem. at 5-7; Def. 2nd Mem. at 5-7. As the

Government correctly observes, Maryland law applies to plaintiff’s medical malpractice claim

and the HCMCA requires, among other things, that plaintiff submit this claim—and a certificate

of qualified expert—to the Maryland Health Care Alternative Dispute Resolution Office before

bringing a tort action. See Md. Code Ann., Cts. & Jud. Proc. §§ 3-2A-04(a)(1)(i), (b)(1)(i). For

this reason, this Court has previously held that compliance with the HCMCA’s pre-suit

certificate requirement “is a condition precedent to bringing a medical malpractice lawsuit.”

Willever, 775 F. Supp. 2d at 777, 785.

But, the Fourth Circuit has recently held in Pledger v. Lynch that a prisoner suing for

medical malpractice under the FTCA and Bivens was not required to comply with a similar

requirement under West Virginia law that medical malpractice plaintiffs obtain a “screening

certificate of merit” before filing suit. Pledger, 5 F.4th at 518. Specifically, the Fourth Circuit

applied the “well-established, twostep framework for mediating any potential conflict” between

the West Virginia law at issue in that case and the Federal Rules of Civil Procedure, and

determined that various Federal Rules—including Fed. R. Civ. P. 8, 11 and 12—are sufficiently

broad to answer whether a medical malpractice plaintiff in federal court must present an expert

certificate “to state a claim for medical negligence[.]” See id. at 520. Given this, the Fourth

Circuit concluded that West Virginia’s pre-filing certificate requirement is inconsistent and

“‘impossible to reconcile’” with these provisions of the Federal Rules. Id. And so, the Fourth

Circuit concluded that West Virginia’s expert certificate requirement “cannot apply” in federal

court and that failure to comply with such a pre-suit certification requirement is not grounds for

dismissal of a complaint filed pursuant to the FTCA. Id. at 518.

A similar result is appropriate in this FTCA case. Like the West Virginia law that the

Fourth Circuit found to be inconsistent with the Federal Rules of Civil Procedure in Pledger, the

HCMCA requires that a malpractice plaintiff submit a certificate from a qualified expert to the

Maryland Health Care Alternative Dispute Resolution Office before bringing a tort action. Md.

Code Ann., Cts. & Jud. Proc. §§ 3-2A-04(a)(1)(i), (b)(1)(i). Indeed, as the Fourth Circuit

observed in Pledger, about “half of all states similarly demand that medical malpractice plaintiffs

secure some sort of early support from a qualifying expert.” Pledger, 5 F.4th at 518. As the

Fourth Circuit explained in Pledger, various Federal Rules, including Fed. R. Civ. P. 12, are

sufficiently broad to answer whether a medical malpractice plaintiff in federal court must present

an expert certificate to state a plausible claim for medical negligence. See id. at 520. In

particular, Rule 12(b)(6) provides the applicable standards governing whether plaintiff states a

plausible medical malpractice claim against the Government in this case. See Fed. R. Civ. P.

12(b)(6).

Because the HCMCA’s pre-suit certification requirement is inconsistent with

Rule12(b)(6), this requirement cannot apply to FTCA claims brought in this Court. See Pledger,

5 F.4th at 520; see also DeBlois v. Corizon Health, 2021 WL 3142003, at *21 (observing that,

“[a]t a minimum, . . . Pledger appears to instruct that [the plaintiff’s FTCA] suit cannot be

dismissed for failure to comply with the prefiling certificate requirements in the HCMCA.”;

Severe v. United States, 2021 WL 4521345, at *16 (holding that the HCMCA cannot serve as

grounds for dismissing a malpractice plaintiff’s FTCA claim) And so, the Court agrees with

plaintiff that his initial failure to comply with the HCMCA’s pre-suit certification requirement is

not grounds for dismissing his FTCA claim.2 See Pl. 1st Resp. at 11; Pl. 2nd Resp. at 1.

Because there is no dispute in this case that plaintiff’s FTCA claim was timely when he

commenced this action on February 18, 2021, the Court also declines to dismiss this matter as

time-barred under the FTCA’s statute of limitations. See Def. 2nd Mem. at 10 (acknowledging

that plaintiff had until March 3, 2021, to file his FTCA claim). And so, for these reasons, the

Court DENIES the Government’s motions to dismiss.

V. CONCLUSION

In sum, plaintiff’s initial failure to comply with the HCMCA’s pre-suit certificate

requirement is not an appropriate ground for dismissing this FTCA action. And so, for the

reasons stated above, the Court DENIES the Government’s motions to dismiss.

2 The Government argues that Pledger is factually distinguishable from this case and that Pledger did not

overrule Davison v. Sinai Hosp. of Balt., Inc., 617 F.2d 361 (4th Cir. 1980). Def. 2nd Mem at 7-10. The

Court agrees with the Government that the Fourth Circuit did not explicitly overrule Davison in Pledger.

But, as this Court has previously observed, the Fourth Circuit “[n]onetheless, . . . revealed something of

its view [of Davison] by explaining that “Davison ‘simply adopt[ed]’ a district court ruling ‘without

discussion.’” DeBlois, 2021 WL 3142003, at *22 (quoting Pledger, 5 F.4th at 523).

The Government shall ANSWER or otherwise respond to the complaint on or before

September 30, 2022.

IT IS SO ORDERED.

s/Lydia Kay Griggsby

LYDIA KAY GRIGGSBY

United States District Judge