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Brotherton v. United States

United States District Court, E.D. Washington

August 28, 2017

PATRICK G. BROTHERTON, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER RE: MOTION TO DISMISS

          JUSTIN L. QUACKENBUSH SENIOR UNITED STATES DISTRICT JUDGE

         BEFORE 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.

         I. Introduction

         Plaintiff, 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."

         The 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.

         II. Factual Background

         As the 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).

         Plaintiff 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).

         On 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 ¶ 2.10-2.11).

         The 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.).

         Dr. 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.).

         Plaintiff 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, & 9).

         III. Standard of Review

         The 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 ...


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