Larry v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

Wheeling

ORLANDO LARRY,

Plaintiff,

Vv, Civil Action No. 5:19-CV-138

Judge Bailey

THE UNITED STATES OF AMERICA,

Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION

On this day, the above-captioned matter came before this Court for consideration of

the Report and Recommendation of United States Magistrate Judge James P. Mazzone

20], filed on September 18, 2020. Plaintiff filed his Written Objections to the Report and

Recommendation [Doc. 23] on October 8, 2020. Accordingly, this matter is now ripe for

adjudication.

In this case, plaintiff has asserted claims under the Federal Tort Claims Act (“FTCA”).

Specifically, plaintiff contends medical staff at FC! Gilmer, the facility in which plaintiff is

incarcerated, committed medical malpractice and deliberate negligence during the course

of medical treatment he received at said facility. In his R&R, Magistrate Mazzone

recommended that plaintiff's Complaint under the FTCA be dismissed without prejudice

because itis untimely. Additionally, Magistrate Mazzone noted that plaintiff failed to comply

with the requirements of West Virginia Code § 55-7B-6(c), a defect also warranting dismissal.

Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review

of those portions of the Magistrate Judge's findings to which objection is made. However,

failure to file objections permits the district court to exercise review under the standards

believed to be appropriate, and under these circumstances, the parties’ right to de novo

review is waived. See Webb v. Califano, 468 F. Supp. 825 (E.D. Cal. 1979). Accordingly,

this Court will conduct a de novo review only as to the portions of the report and

recommendation to which plaintiff objected. The remaining portions of the report and

recommendation will be reviewed for clear error. For the reasons contained herein, this Court

will adopt the R&R.

APPLICABLE LAW

Federal courts lack subject matter jurisdiction to address lawsuits against the federal

government unless the United States expressly consents to be sued by clearly and specifically

waiving sovereign immunity. FDIC v. Meyer, 510 U.S. 471, 475 (1994). The FTCAis a

limited and narrowly tailored waiver of sovereign immunity that imposes tort liability on the

United States in certain circumstances for injuries caused by the negligent or wrongful acts

omissions of federal government employees. 28 U.S.C. § 1346(b). The FTCA does not

create an independent legal cause of action. Medina v. United States, 259 F.3d 220, 223

(4th Cir. 2001) (citations omitted). Instead, the FTCA holds the United States liable where a

private individual would be liable under similar circumstances for a state law tort in the relevant

jurisdiction. Id.

Even where the government has waived sovereign immunity, the FTCA only authorizes

lawsuits against the United States itself. 28 U.S.C. § 1346(b). Therefore, the United States,

not any individual government employee or agency, is the only proper defendantin an FTCA

lawsuit. See 28 U.S.C. § 2679(a); Webb v. Hamidulfah, 281 F.App'x 159, 161, n. 4 (4th Cir.

2008) (per curiam) (unpublished) (United States is the only proper defendant in FTCA claim);

Hoimes v. Eddy, 341 F.2d 477, 480 (4th Cir. 1965) (per curiam) (federal agency cannot be

sued pursuant to the FTCA).

In regard to plaintiff's substantive claims, the FTCA waives the federal government's

sovereign immunity for claims based on the negligence of its employees. 28 U.S.C.

§ 1346(b6)(1). More specifically, “[t]he statute permits the United States to be held liable in tort

inthe same respect as a private person would be liable under the law of the place where the

act occurred.” Medina, 259 F.3d at 223. Nevertheless, in order for an action brought under

the FTCA to be deemed timely, it must be “begun within six-months after the date of mailing,

by certified mail or registered mail, of notice of final denial of the claim by the agency to which

it was presented.” 28 U.S.C. § 2401(b}. Moreover, this limitations period is to be strictly

construed, such that, “[i]fan action is not filed as the statute requires, the six-month time period

may not be extended.” Tuttle v. United States Postal Service, 585 F. Supp. 55 (M.D. Pa.

1983) (citing United States v. Kubrick, 444 U.S. 111. 117-18 (1979)).

Despite the foregoing, a failure of the plaintiff fo properly abide by the relevant

limitations period may be excused under the doctrine of equitable tolling “where the defendant

has wrongfully deceived or misled the plaintiff in order to conceal the existence of a cause of

action.” Kokotis v. United States Postal Service, 223 F.3d 275, 280-81 (4th Cir. 2000)

(quoting English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987)). As such, the

doctrine of equitable tolling is “based on the view that a defendant should not be encouraged

to engage in misconduct that prevents the plaintiff from filing his or her claim on time.”

Kokotis, 223 F.3d at 281 (internal citations omitted). Nonetheless, the lawis well-settled that

“{o]ne who fails to act diligently cannot invoke equitable principles to excuse the lack of

diligence.” Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1129 (4th Cir. 1987) (quoting

Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984)).

FTCA liability is governed by state law. Rayonier Inc. v. United States, 352 U.S.315

(1957); Myrick v. United States, 723 F.2d 1158 (4th Cir. 1983) (In FTCA action, federal

courts apply the substantive law of the state in which the act or omission giving rise to the

action occurred). In West Virginia, a plaintiff alleging medical negligence must comply with

the West Virginia Medical Professional Liability Act (“MPLA”), W. Va. Code § 55-7B-1 et □□□□

Dreenen v. United States, 2010 WL 1650032, *2 (4th Cir. 2010); Callahan v. Cho, 437

F.Supp.2d 557, 561 (E.D. Va. 2006); Stanley v. United States, 321 F.Supp.2d 805, 808-09

(N.D. W.Va. 2004) (Keeley, J.).

The plaintiff bears the burden of proving negligence and that the lack of skill on the part

of the physician proximately caused the injuries suffered. See W. Va. Code §§ 55-7B-7

(noting that the applicable standard of care and a defendant's failure to meet the standard of

care, if at issue, shall be established in medical professional liability cases by the plaintiff).

Ordinarily, a claim of medical negligence must be supported by expert testimony.

Osborne v. United States, 166 F.Supp.2d 479, 497 (S.D. W.Va. 2001) (Haden, C.J.).

Specifically, where a medical negligence claim involves an assessment of whether the plaintiff

was properly diagnosed and treated, or whether the health care provider was the proximate

cause of the plaintiff's injuries, expert testimony is required. Banfi v. American Hosp. for

Rehabilitiation, 207 W.Va. 135, 529 $.E.2d 600, 605-06 (2000).

This expert testimony must be presented to support even a prima facie claim of

medical negligence, unless the physician’s “lack of care or skill is so great and gross that

expert testimony is unnecessary." Osborne, 166 F. Supp. 2d at 498, n.13. Additionally, “[he

physician is not bound to provide the patient with the highest degree of care possible. The

mere fact a patient is not cured by the physician's treatment does not establish or raise a

presumption of negligence.” Id.

In West Virginia, a prospective plaintiff must complete certain prerequisites, including

providing a certificate of merit, before he files a medical negligence or malpractice lawsuit.

See W. Va. Code § 55-7B-6 (entitled “prerequisites for filing an action against a health care

provider’). This statute "imposes special requirements that must be met before a suit can be

filed.” Stanley v. United States, 321 F.Supp.2d 805, 808 (N.D. W.Va. 2004) (Keeley, J.)

(emphasis in original). The certificate of merit is a pre-filing requirement and a “necessary

prerequisite” to maintain a medical professional liability lawsuit. Jd. at 808-809. A

prospective plaintiff must meet the MPLA certificate of merit requirement in addition to the

FTCA administrative exhaustion requirement. Stanley, 321 F.Supp.2d at 805-09.

The screening certificate of merit is a statement from a medical expert opining that the

applicable standard of care was breached. W.Va. Code § 55-7B-6{b). Requiring a

prospective plaintiff to consult an expert and provide a screening certificate before he sues

a healthcare provider serves fo limit frivolous medical negligence and malpractice lawsuits.

Stanley, 321 F. Supp. 2d at 809.

Generally, a court must dismiss a medical professional liability lawsuit where the

prospective plaintiff fails to provide a certificate of merit before he files the case. Lancaster

v. USP Hazelton, 2017 WL 3448187, at *4(N.D. W.Va. Aug. 11, 2017) (Groh, CJ.) {citations

omitted). The certificate requirement may be excused only if “the cause of action is based

upon a well-established legal theory of liability which does not require expert testimony

supporting a breach of the applicable standard of care.” W.Va. Code § 55-7B-6(c). Even

then, the plaintiff must still file a statement setting forth the basis of alleged liability. fd.

The West Virginia Supreme Court of Appeals has stated as follows regarding the type

of negligence claims where expert testimony is not required because the relevant medical

diagnosis and treatment is within the common knowledge and understanding of a layperson:

In medical malpractice cases where lack of care or want of skillis so gross, so

as to be apparent, or the alleged breach relates to noncomplex matters of

diagnosis and treatment within the understanding of lay jurors by resort to

common knowledge and experience, failure to present experttestimony on the

accepted standard of care and degree of skill under such circumstances is not

fatal to a plaintiff's prima facie showing of negligence.

Banfi, 207 W.Va. 135, 140-41, 529 S.E.2d 600, 606 (2000) (citations omitted). “[T]ypically

expert testimony is required to prove claims of medical negligence when the alleged

misconduct involves a complex medical decision rather than a maiter involving nonmedical,

routine, or ministerial care.” Banfi, 207 W.Va. at 143, 529 S.E.2d. at 608. “Whether a

defendant has properly diagnosed and/or treated a patient entrusted to his/her care

necessitates expert testimony because such a question is outside the common knowledge

of the typical jury.” fd.

DISCUSSION

Here, plaintiff presented his initial Administrative Claim TRT-MXR-2018-04448 on May

2, 2018, thereby invoking his administrative remedies. Subsequently, the BOP denied his

claim on September 26, 2018, and advised plaintiff that he had six months from that date

within which to file suit in federal court. As identified by Magistrate Judge Mazzone, plaintiff

had until March 26, 2018, to file his claim under the aforementioned statutory time frame.

However, he did not file his claim until March 29, 2019, after the six-month deadline had

expired. While plaintiff asserts in his Written Objections to the Report and Recommendations

that the Administrative Agency received his tort claim form prior to May 2, 2018,

documentation from the U.S. Department of Justice [Doc. 1-6] clearly indicates that the

administrative claim was in fact received on May 2, 2018. As such, the claim was timely

denied by the BOP on September 26, 2018, and plaintiffs objection concerning the

applicable statute of limitations is overruled.

Plaintiff also objects to Magistrate Judge Mazzone's finding that his failure to timely file

the subject FTCA claim should not be excused by the doctrine of equitable tolling. As noted

above, the law is well-settled that “[o]ne who fails to act diligently cannot invoke equitable

principles to excuse the lack of diligence.” Felty v. Graves-Humphreys Co., 818 F.2d 1126,

1129 (4th Cir. 1987) (quoting Baldwin County Welcome Center v. Brown, 466 U.S. 147,

151 (1984)). Further, “[a] statute can be equitably tolled only if a plaintiff shows that (1) he

pursued his claim with reasonable diligence and (2) extraordinary circumstances prevented

him from filing on time.” Lucas v. United States, 664 F.App'x 333, 335 (4th Cir. 2016) (citing

Holland v. Florida, 560 U.S. 631, 649 (2010)). Having reviewed Magistrate Judge

Mazzone’s findings concerning the inapplicability of equitable tolling, this Court agrees that

the record contains no evidence establishing any extraordinary circumstances warranting an

application of equitable tolling here. As such, plaintiffs objection concerning Magistrate

Judge Mazzone’s findings in that respect is overruled.

Finally, plaintiff objects to Magistrate Judge Mazzone's findings concerning his

noncompliance with W.Va. Code § 55-7B-6. As noted in the R&R, plaintiff's statement in lieu

of providing the statutorily required screening certificate is inadequate. As noted above, a

court must dismiss a medical professional liability lawsuit where the prospective plaintiff fails

to provide a certificate of merit before he files the case. Lancaster v. USP Hazelton, 2017

WL 3448187, at*4(N.D. W.Va. Aug. 11,2017) (Groh, CJ.) (citations omitted). The certificate

requirement may be excused only if “the cause of action is based upon a well-established

legal theory of liability which does not require expert testimony supporting a breach of the

applicable standard of care.” W.Va. Code § 55-7B-6(c). As noted by Magistrate Judge

Mazzone, plaintiff simply asserts that his treatment providers breached the standard of care

that a reasonable and prudent person would have exercised. Plaintiff makes no indication

concerning what condition he believes was negligently treated, nor does he assert a specific

basis for the alleged liability of the medical providers. Infact, the only diagnosis demonstrated

by a physician in this matter is provided by Dr. Susan Long, who performed a

esophagogastroduodenoscopy with biopsy on plaintiff at St. Joseph's Hospital on March 5,

2018. The postoperative diagnosis was GERD, gastritis, pre-plyloric ulcer, duodenitis,

perineal abscess, and hemorrhoids. (Doc. 1-7 at 20].

As stated by Magistrate Mazzone, the diagnoses and treatment of these conditions are

not within the understanding of lay jurors by resort to common knowledge and experience.

See O’Neil v. U.S., 2008 WL 906470 (S.D. W.Va. Mar. 31, 2008) (Johnston, J.) (finding that

plaintiff was not excused from filing a screening certificate of merit because the treatment and

diagnosis of Graves disease, hyperthyroidism, congestive heart failure, and cardiomyopathy

are not within the understanding of lay jurors by resort to common knowledge and experience).

As such, this Court finds that plaintiff was not excused from filing a screening certificate of

merit pursuant to the aforementioned code, and plaintiff's objection concerning the same is

overruled.

Upon careful review of the record before this Court and the aforementioned applicable

law, itis the opinion of this Court that the Report and Recommendation [Doc. 20] should be,

and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate

judge's report. Accordingly, plaintiff's Complaint [Doc. 1] is hereby DISMISSED WITHOUT

PREJUDICE. Having so found, plaintiffs Motion for a Preliminary Injunction [Doc. 17] is

DENIED AS MOOT.

Itis so ORDERED.

The Clerk is directed to mail a copy of this Order to the pro se plaintiff and to transmit

copies to all counsel of record herein.

DATED: October #¥, 2020.

PRESTON BAILEY

UNITED STATES DISTRICT JUDGE

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