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Williams v. United States

United States District Court, W.D. Oklahoma

March 31, 2017

ANGREA WILLIAMS, Plaintiff,
v.
UNITED STATES OF AMERICA, VIANMAR G. PASCUAL, M.D., and LAWTON INDIAN HOSPITAL, Defendants.

          ORDER

          TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE.

         Before the Court are motions to dismiss filed by Defendant United States of America [Doc. No. 7] and Defendant Lawton Indian Hospital [Doc. No. 9]. Plaintiff Angrea Williams has responded to both motions [Doc. Nos. 10, 14] and Defendants have replied [Doc. Nos. 13, 19]. The matter is fully briefed and at issue.[1]

         BACKGROUND

         This matter stems from Plaintiff's allegations of negligent care and treatment by Dr. Vianmar Pascual at the Lawton Indian Hospital (LIH). The following facts are taken from the Complaint and viewed in the light most favorable to Plaintiff. Ute Indian Tribe of the Uintah v. Myton, 835 F.3d 1255, 1261 (10th Cir. 2016). Plaintiff was admitted to LIH for a planned laparoscopic cholecystectomy (removal of the gall bladder). After her discharge, she returned to LIH with complaints of severe upper abdominal pain. Plaintiff was diagnosed with a possible duct injury and released. Plaintiff, however, continued to experience severe abdominal pain and went to the emergency room at Comanche County Memorial Hospital. A scan revealed that she had free fluid in her abdomen and elevated bilirubin levels of 4.7. Plaintiff was admitted to the hospital, where it was discovered she had sustained injuries to her biliary tree (liver, gall bladder, and bile ducts). She is now a candidate for a liver transplant.

         Plaintiff alleges the surgery perforated her ducts, which caused gross contamination of her abdominal cavity and liver. Plaintiff alleges Defendants were negligent in that: (1) Defendants failed to provide and/or maintain adequate facilities, equipment and procedures; (2) Defendants failed to exercise their responsibility to obtain consent and exercise due care to prevent Plaintiff's permanent injuries; and (3) Defendants' treatment fell below the applicable standards of care. Plaintiff also contends the doctrine of res ipsa loquitur is applicable to her allegations. For relief, Plaintiff asserts claims for pain and suffering, mental anguish, loss of earnings, permanent impairment, reasonable expenses of necessary medical care, and all other damages available under law.

         The United States contends Plaintiff's Complaint should be dismissed for four reasons: (1) Plaintiff has failed to state a plausible claim for negligence; (2) Plaintiff did not attach an “affidavit of merit” to her Complaint, as required under Oklahoma law; (3) insufficient service of process; and (4) failure to exhaust administrative remedies. LIH contends the Complaint should be dismissed because (1) it has sovereign immunity and (2) Plaintiff failed to attach the aforementioned “affidavit of merit” to her Complaint.

         STANDARD OF DECISION

         “To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The “plausibility” standard announced in Twombly and Iqbal is not considered a “heightened” standard of pleading, but rather a “refined standard, ” which the Tenth Circuit has defined as “refer[ring] to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (citing Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011); Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).

         The Tenth Circuit has further noted that “[t]he nature and specificity of the allegations required to state a plausible claim will vary based on context.” See id. (quoting Robbins, 519 F.3d at 1248). “Thus, [it has] concluded the Twombly/Iqbal standard is ‘a middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the Court stated will not do.' ” Id. (quoting Robbins, 519 F.3d at 1247). Accordingly, in deciding Twombly and Iqbal, there remains no indication the Supreme Court “intended a return to the more stringent pre-Rule 8 pleading requirements.” Khalik, 671 F.3d at 1191 (citing Iqbal, 556 U.S. at 678). It remains true that “[s]pecific facts are not necessary; the statement need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.' ” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555); see also al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009) (“Twombly and Iqbal do not require that the complaint include all facts necessary to carry the plaintiff's burden.”). Lastly, “[w]hile the 12(b)(6) standard does not require that Plaintiff establish a prima facie case in her complaint, the elements of each alleged cause of action help to determine whether Plaintiff has set forth a plausible claim.” Khalik, 671 F.3d at 1191 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002)).

         Where dismissal is granted for failure to state a claim, the Court should grant leave to amend freely “if it appears at all possible that the plaintiff can correct the defect.” Triplett v. Leflore County, Okla., 712 F.2d 444, 446 (10th Cir. 1983). Leave to amend is not automatic and may be properly denied where an amendment would be futile. Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir. 2004). “A court properly may deny a motion for leave to amend as futile when the proposed amended complaint would be subject to dismissal for any reason, including that the amendment would not survive a motion for summary judgment.” E.SPIRE Commc'ns, Inc. v. N.M. Pub. Regulation Comm'n, 392 F.3d 1204, 1211 (10th Cir. 2004) (internal quotation marks omitted).

         A motion to dismiss for lack of subject matter jurisdiction generally attacks the complaint's allegations in one of two ways: a facial attack or a factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995) (citation omitted). A facial attack questions the sufficiency of the complaint's allegations, and a factual attack questions the facts used to support the complaint's allegations. Id. at 1002-03. Here, LIH has made a facial attack in that it contends Plaintiff has wrongfully named it a defendant to this action and that the only proper defendant is the United States.

         DISCUSSION

         I. Sovereign Immunity

         Sovereign immunity is ordinarily a threshold jurisdictional issue that affects a court's authority to hear the merits of a case. Starkey ex rel. A.B. v. Boulder County Social Services, 569 U.S. 1244, 1259-60 (10th Cir. 2009). Accordingly, the Court addresses this issue first. “The concept of sovereign immunity means that the United States cannot be sued without its consent.” Iowa Tribe of Kansas and Nebraska v. Salazar, 607 F.3d 1225, 1232 (10th Cir. 2010) (quoting Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Jacks, 960 F.2d 911, 913 (10th Cir. 1992)). Courts lack subject matter jurisdiction over a claim against the United States where sovereign immunity has not been waived. Id. ...


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