United States District Court, E.D. Washington
PATRICK G. BROTHERTON, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
ORDER RE: MOTION TO DISMISS
L. QUACKENBUSH SENIOR UNITED STATES DISTRICT JUDGE
THE COURT is Defendant' Motion to Dismiss (ECF No. 5).
Response and Reply briefs have been filed. (ECF No. 9 &
11). The court heard oral argument on the Motion on August
25, 2017. Plaintiff was represented by Jess Casey and
Marshall Casey. Assistant United States Attorney Rudolf
Verschoor appeared on behalf of Defendant. This Order
memorializes and supplements the court's oral rulings.
Patrick Brotherton, filed this lawsuit against Defendant, the
United States of America, on March 15, 2017. Plaintiff brings
two claims relating to medical care in January, 2014.
Plaintiff asserts failure to secure informed consent in
violation of RCW 7.70.050 and medical negligence under RCW
7.70.040. These claims are asserted on the basis of care
provided by "Dr. Sim or the VA medical personnel."
The VA is the U.S. Department of Veterans Affairs. Plaintiff
alleges "the actions of all medical providers described
herein were done within the scope of their employment with
the United States of America, as part of the VA."
Defendant (hereafter "Government") argues the court
lacks jurisdiction and Plaintiff has failed to state a claim.
The Government contends the surgery was elective surgery
performed by a "private orthopedic surgeon", not by
VA personnel. The Government contends the court lacks
jurisdiction over a claim against a physician not employed by
the VA or otherwise a federal government employee. The
Government alleges VA personnel, including Dr. Sim, who did
not perform the surgery, had no duty to secure informed
consent. Additionally, the Government argues Count II fails
to state a plausible claim for negligence.
court is reviewing a Motion to Dismiss, the facts set forth
herein are largely taken from the Complaint. However, the
court may consider additional evidence concerning factual
questions bearing on the jurisdictional issue. Plaintiff has
been receiving medical care through the VA medical system for
several years. (Complaint 2.1). Plaintiff alleges VA care
providers knew he was planning to have elective surgery on
his right ankle as an old injury from a fall made his ankle
painful and resulted in an inability to walk normally.
(Id. at ¶ 2.1-2.2). Plaintiff alleges VA care
providers knew the surgery had been delayed "because he
had an ulcer on his left toe which was not healing
normally" and because Plaintiff is diabetic.
(Id. at ¶ 2.2-2.3).
alleges that on January 10, 2014, he informed Dr. Sim, his
primary care physician at the VA, that he had surgery
scheduled for January 17, 2014, and he was instructed to have
a blood test. (Id. at ¶ 2.4). Plaintiff claims
the blood test, taken on January 13, 2014, showed an A1C 9.6
which was too high for elective surgery. (Id. at
¶ 2.5). Plaintiff claims both he and Dr. Sim were
informed of the lab result, but Plaintiff "was not told
that he should not proceed with the surgery."
(Id. at ¶ 2.6).
January 17, 2014, a "contract orthopedic surgeon"
Dr. Craig Barrow performed the surgery on Plaintiff's
right ankle. (Id. at ¶ 2.9). The ankle did not
heal properly after surgery and on March 19, 2014, Dr. Barrow
performed a below the knee amputation. (Id. at
factual information provided by the Government in support of
its Motion to Dismiss includes a Declaration of Dr. Scott
Nye, the Chief of Staff at the Mann-Grandstaff VA Medical
Center in Spokane, Washington. (ECF No. 5-1). Dr. Nye
acknowledges Plaintiff was a patient at the VA and because
the VA did not have the capacity for the surgery Plaintiff
"was referred out to the community". (Id.
at ¶ 2). Dr. Nye states: "Dr. Barrow is not and was
not a VA employee or U.S. Government employee" on
January 17, 2014 and the VA "did not have a contract
with Dr. Barrow." (Id. at ¶ 4). Dr. Nye
further avers, "no VA health care personnel took part in
Mr. Brotherton's surgery." (Id.).
Daniel Sim has filed a Declaration stating he is a primary
care physician employed by the VA, and Plaintiff was under
his care beginning in August 2008. (ECF No. 5-6). Dr. Sim
states he is "not a surgeon", does not perform
surgeries, and "was not involved in any way with Mr.
Brotherton's surgery on his ankle." (Id.).
has also provided evidence outside the pleadings in the form
of the Declaration of Dr. James Leo. (ECF No. 9-1). Dr. Leo
is offered as an expert witness who has reviewed
Plaintiff's medical records. Dr. Leo opines, inter
alia, that a reasonably prudent primary care physician
in the State of Washington "who receives a test showing
hemoglobin A1C of 9.6%, and who was aware or should have been
aware that the patient was having elective surgery on his
ankle, " is in violation of the standard of care if he
approves the patient for surgery, does not advise against the
surgery, or fails to contact the potential surgeon and
"alert the surgeon to the problems of healing signified
by the A1C tests." (ECF No. 9-1, ¶¶ 7, 8,
Standard of Review
Government's Motion to Dismiss asserts both lack of
subject matter jurisdiction, and failure to state a claim. As
the Supreme Court has discussed, these are distinct concepts,
and courts sometimes “obscure the issue by stating the
court is dismissing for lack of jurisdiction when some
threshold fact has not been established, without explicitly
considering whether the dismissal should be for lack of
subject matter jurisdiction or failure to state a
claim.” Arbaugh v. Y&H Corp., 546 U.S.
500, 511 (2006). If subject-matter jurisdiction turns on
contested facts, the trial judge may be authorized to ...