United States District Court, W.D. Washington, Tacoma
[DKT. #S 4, 10, 16, 20, & 23]
RONALD B. LEIGHTON, District Judge.
THIS MATTER is before the court on the following motions: Defendant Sea Mar's Motion to Dismiss [Dkt. #4]; Plaintiff Olinghouse's Motion to Appoint Counsel [Dkt. # 10]; Defendant Bannon's Motion for Summary Judgment [Dkt. #16]; Olinghouse's Motion for an Extension of Time to Complete Discovery [Dkt. #20], and Defendants' responsive Motion to Stay Discovery pending the outcome of its dispositive Motion [Dkt. # 23].
Olinghouse suffered a burn on her left breast. On March 14, 2011, she went to Sea Mar and was treated by a Registered Nurse (ARPN), former Defendant Steward, who diagnosed a second degree burn. She returned three days later and saw a Physician's Assistant, Defendant Bannon, who also recorded a second degree burn, and that Olinghouse had "cellulitis/abscess" She prescribed Keflex and Tylenol and instructed Olinghouse to return on March 21, or to seek emergency treatment over the upcoming weekend if the swelling enlarged. [Dkt. #17, Ex A and B] The burn got worse and Olinghouse went to Capital Medical Center on March 19, where she was sent to Harborview. She was admitted and ultimately had to have a skin graft.
Sea Mar is a "federal employee" and the United States is the proper defendant. [ See Dkt. #s 3, 22]. The United States removed the case to this court under 28 U.S.C. §1441 and 1442. It seeks dismissal of Olinghouse's claims for failure to comply with the Federal Tort Claims Act's claims procedures, and argues that the time for complying has expired. Bannon seeks summary judgment, arguing that Olinghouse has not and cannot identify expert testimony in support of her claim that the medical care she received was below the standard of care:
Expert testimony is required to establish that any alleged breach of the standard of care proximately caused the claimed injuries.
Citing RCW 7.70.040 and Harris v Groth, 663 P.2d 113 (1983). Olinghouse argues that such expert testimony is not required "if the questioned practice of the professional is such a gross deviation for ordinary care that a lay person could easily recognize it." McLaughlin v. Cooke, 774 P.2d 1171 (1989). She claims that the claimed mis-diagnosis of her burns as "second degree" when they turned out to be "third degree" is such a deviation from the standard of care.
She also seeks an attorney and for additional time to conduct discovery. The Motions are addressed in turn.
A. The United States is dismissed.
The Untied States argues that Olinghouse's claims are subject to the Federal Tort Claims Act, and that she did not timely submit a claim under that statute. See 28 U.S.C. § 2675(a). It claims that the limitations period has expired and all of her claims against it must be dismissed. Olinghouse's Response [Dkt. #13] questions whether her failure to comply with the FTCA has a similar effect on her failure to train and failure to supervise claims. Unfortunately, the effect is the same, as the United States points out:
[T]he FTCA is limited waiver of sovereign immunity that renders the United States vicariously liable for the "negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 2679(b)(1). Accordingly, the text of the statute itself considers all the claimed acts of negligence made in this lawsuit.
[Dkt. #24 at 2].
The United States is correct; Olinghouse's failure to exhaust her administrative remedies under the FTCA is fatal to all of her negligence claims against the United States (which is, for purposes of this case, Sea Mar) The Motion to Dismiss [Dkt. #4] is GRANTED and Olinghouse's claims against the United States are DISMISSED with prejudice.
B. Olinghouse's motion for an attorney is denied.
An indigent plaintiff in a civil case has no constitutional right to counsel unless she may lose her physical liberty if she loses the litigation. See Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25 (1981). However, pursuant to 28 U.S.C. § 1915(e)(1), the Court has discretion to appoint counsel for indigent litigants who are proceeding in forma ...