United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE.
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.
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
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.
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
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)).
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)).
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).
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.
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. ...