The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CHRISTOPHER ELDER, )
)
Plaintiff, )
)
vs. ) No. CIV-21-38-C
)
UNITED STATES OF AMERICA, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
Plaintiff was a patient at the Oklahoma City Veterans Affairs Medical Center in
2017. According to Plaintiff, while he was being treated, Defendant left an IV needle
implanted in his arm for too long and as a result he developed severe sepsis. Plaintiff also
alleges Defendant’s medical staff failed to detect and diagnose the subsequent infection
and abscess. In accordance with the terms of the Federal Tort Claims Act (“FTCA”),
Plaintiff filed an administrative tort claim, which was denied. Plaintiff then filed the
present action seeking to recover for Defendant’s alleged negligence. Defendant has filed
its Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) arguing Plaintiff’s first claim
fails to state a claim of medical negligence and the Court lacks jurisdiction to consider it.*
Defendant asserts that Plaintiff failed to present the second claim in his administrative tort
claim and the Court lacks jurisdiction to consider it.
* Although Defendant challenges whether Plaintiff’s first claim states a claim for
relief, the Supreme Court has recently held the claim may be dismissed pursuant to
Fed. R. Civ. P 12(b)(1) or 12(b)(6). See Brownback v. King, ___ U.S. ___, 141 S.Ct. 740,
749, n. 8 (2021).
As to the claim raising the length of time the IV was in place, the allegations of
Plaintiff’s Amended Complaint state that the accepted regional standard of care requires
changing the IV location every 72 hours, while the CDC requires the location to be changed
every 72-96 hours. Plaintiff’s Amended Complaint alleges that the medical records
indicate his IV was placed on May 19, 2017, at 11:39 p.m. and then removed on May 23,
2017, at 12:22 p.m. Thus, Plaintiff alleges the IV was in the same location for more than
72 hours but less than 96. Plaintiff’s Amended Complaint asserts that Plaintiff’s
recollection is that the IV was in place for five days.
Defendant argues that on the face of the Amended Complaint it is clear that Plaintiff
has failed to allege a breach of the standard of care. Defendant argues that Oklahoma
employs a national standard of care requirement, and that standard of care is best evidenced
by Plaintiff’s allegations regarding the CDC requirements. Defendant argues that because
the medical records clearly demonstrate the IV was in place for a period within the scope
of the CDC standard, Plaintiff cannot demonstrate negligence and therefore the Court lacks
jurisdiction to consider the claim.
Defendant’s Motion will be denied on this issue. Defendant would have the Court
hold that the CDC standard is the only applicable standard in determining the appropriate
time length for an IV and that there are no variables which would require the shorter 72-
hour period. In this manner, Defendant is asking the Court to make factual determinations
based on the pleadings. That action is inappropriate at this stage.
2
Defendant seeks dismissal of the second claim, arguing it was not presented in
Plaintiff’s administrative claim. Plaintiff’s second claim alleges that he returned to the
VA with complaints on June 13, 2017, and Defendant’s doctors failed to properly diagnose
his condition. Defendant argues that Plaintiff did not identify this incident on his
administrative claim and therefore he cannot pursue it now.
Plaintiff argues that in response to his administrative claim, he provided additional
medical records to Defendant and that those records included information about the June
failure to diagnose claim.
“Absent a waiver, sovereign immunity shields the Federal Government and its
agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). The FTCA provides
a waiver of sovereign immunity, but that waiver is narrowly and strictly construed.
Persons seeking to take advantage of the waiver must “adhere closely to every rule and
requirement of the FTCA.” Estate of Cummings v. United States, 651 Fed. Appx. 822,
827 (10th Cir. 2016). One such requirement is that a plaintiff present the claim to the
agency. In the Tenth Circuit, that claim must contain (1) a written statement sufficiently
describing the injury to enable the agency to begin its own investigation and (2) a sum
certain. Lopez v. United States, 823 F.3d 970, 976 (10th Cir. 2016). Examination of the
administrative claim filed by Plaintiff establishes that he made no mention of a June 13
claim in that document. Plaintiff argues that he later supplied information which was
sufficient to apprise Defendant of this claim. However, Plaintiff fails to offer any legal
support for his argument that the administrative claim can be amended in this fashion.
3
Further, the Court finds that information was not provided in a manner that would have
advised Defendant that Plaintiff pursued the June 13 matter as a stand-alone claim. Thus,
Plaintiff failed to provide Defendant an opportunity to investigate and/or settle that issue
as an independent claim prior to litigation and thereby undermined the purpose of the
administrative process. Id. at 977. Consequently, Defendant is entitled to sovereign
immunity from Plaintiff's independent claim arising from his June visit to the VA.
Whether or not those injuries arose from and are part of the alleged negligence set forth in
Plaintiff’s first claim is not decided here.
For the reasons set forth herein, Defendant United States’ Motion to Dismiss
Plaintiff's Amended Complaint (Dkt. No. 17) is DENIED in part and GRANTED in part.
Plaintiff’s first claim is adequately pleaded, and Defendant’s Motion is denied as to that
claim. Plaintiff failed to properly exhaust administrative remedies as to his second claim
and that claim is DISMISSED without prejudice for lack of jurisdiction.
IT IS SO ORDERED this 7th day of October 2021.
United States District Judge