United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL UNITED STATES DISTRICT JUDGE.
the court is the Motion to Dismiss of defendant United States
of America. [Doc. 6]. For the reasons set forth below, the
motion is granted in part as to plaintiff39;s medical
negligence claims. Plaintiff39;s remaining negligent hiring
and supervision claims are dismissed sua sponte for lack of
subject matter jurisdiction.
lawsuit arises out of the alleged failure of plaintiff39;s
physicians to inform him of and treat a pancreatic tumor that
was first identified in September 2016. The complaint
contains the following allegations.[1"
name="FN1" id="FN1">1] Plaintiff David Spinazzola
is a veteran of the United States Air Force who served from
1971 to 1976. [Doc. 2, p. 2 ¶ 8]. In December 2015, Mr.
Spinazzola sought treatment for abdominal discomfort at the
Ernest Childers Department of Veterans Affairs Outpatient
Clinic (“Childers VA”) in Tulsa, Oklahoma.
[Id., ¶ 10]. Mr. Spinazzola39;s
gastroenterologist performed a physical examination and
ordered an ultrasound. [Id., ¶¶ 10-11].
Mr. Spinazzola was told that the results of the abdominal
ultrasound were negative. [Id., ¶ 12].
months later, Mr. Spinazzola reported to Jodie Popp, a
Physician39;s Assistant at the Childers VA, that his
abdominal discomfort continued. [Id., pp. 2-3
¶¶ 13-14]. Ms. Popp ordered an abdominal C.T. scan,
which was performed on September 15, 2016. [Id., p.
3 ¶¶ 14, 16]. A radiologist reviewed the C.T. scan,
determined that a tumor was growing on Mr. Spinazzola39;s
pancreas, and concluded that immediate follow-up was needed.
[Id., ¶ 17]. Ms. Popp did not report the
results of the C.T. scan to Mr. Spinazzola, nor did she
follow-up with Mr. Spinazzola on a course of treatment.
[Id., ¶¶ 18-19]. “Mr. Spinazzola,
believing the results of the C.T. scan were negative based on
the failure of the V.A. to notify him of a positive result,
continued to suffer severe symptoms of the tumor growing in
his abdomen, including pain, nausea, and weight loss.”
[Id., ¶ 21].
Spinazzola finally learned of the tumor when his
pulmonologist ordered a chest x-ray performed on May 5, 2017.
[Id., p. 4 ¶¶ 23-24]. The x-ray revealed a
mass on Mr. Spinazzola39;s pancreas which was confirmed
that same day by a second C.T. scan to be a tumor.
[Id., ¶ 24]. At a June 30, 2017 meeting, the VA
allegedly “admitted they had failed to notify Mr.
Spinazzola of the tumor on his pancreas after the September
2016 C.T. scan.” [Id., ¶ 26]. Mr.
Spinazzola underwent surgery to remove the tumor on August
11, 2017. [Id., ¶ 27]. Mr. Spinazzola alleges
that he “suffered physical pain and suffering, mental
anguish and emotional distress, lost earnings and wages, and
will suffer additional damages moving forward as a result of
the V.A.39;s delay in treating the tumor first identified
in September 2016.” [Id., ¶ 29].
Spinazzola filed this lawsuit on March 29, 2019 for (1)
medical negligence, (2) negligent hiring, and (3) negligent
supervision. [Id., pp. 5-6 ¶¶ 30-46].
Defendant filed the instant motion to dismiss pursuant to
Fed.R.Civ.1');">p. 12(b)(6) “for failure to state a claim
upon which relief can be granted as Plaintiff39;s Complaint
is time-barred.” [Doc. 6, 1');">p. 1].
Federal Tort Claims Act (“FTCA”) “is a
limited waiver of sovereign immunity, making the Federal
Government liable to the same extent as a private party for
certain torts of federal employees acting within the scope of
their employment.” Lopez v. United States of
America, 823 F.3d 970');">823 F.3d 970, 975-76 (10th Cir. 2016) (quoting
United States v. Orleans, 425 U.S. 807');">425 U.S. 807, 813 (1976)).
Section 2401(b) of the FTCA “bars any tort claim
against the United States unless it is presented to the
appropriate federal agency within two years of the
claim39;s accrual, and filed within six months after notice
of denial of the claim by that agency.” In re
Franklin Savings Corp., 385 F.3d 1279');">385 F.3d 1279, 1287 (10th Cir.
2004) (citing 28 U.S.C. § 2401(b)). “Section
2401(b) is not a jurisdictional requirement.”
United States v. Kwai Fun Wong, 135 S.Ct. 1625');">135 S.Ct. 1625, 1633
(2015). Rather, “timeliness is an affirmative defense,
” and “[i]f the allegations . . . show that
relief is barred by the applicable statute of limitations,
the complaint is subject to dismissal for failure to state a
claim.” Chance v. Zinke, 898 F.3d 1025');">898 F.3d 1025, 1034
(10th Cir. 2018) (quoting Jones v. Bock, 549 U.S.
199, 215 (2007)).
“[a] 12(b)(6) motion must be converted to a motion for
summary judgment if ‘matters outside the pleading[s]
are presented to and not excluded by the court.39;”
GFF Corp. v. Associated Wholesale Grocers, Inc., 130
F.3d 1381, 1384 (10th Cir. 1997) (quoting Fed.R.Civ.P.
12(b)). “[C]onversion to summary judgment when a
district court considers outside materials is to afford the
plaintiff an opportunity to respond in kind. When a complaint
refers to a document, and the document is central to the
plaintiff39;s claim, the plaintiff is obviously on notice
of the document39;s contents, and this rationale for
conversion to summary judgment dissipates.”
Id. at 1385. For that reason, “if a plaintiff
does not incorporate by reference or attach a document to its
complaint, but the document is referred to in the complaint
and is central to the plaintiff39;s claim, a defendant may
submit an indisputably authentic copy to the court to be
considered on a motion to dismiss.” Id. at
1384 (citing cases).
the case here. The United States attached five exhibits to
its motion, three of which the court may consider without
treating the motion as one for summary judgment:
plaintiff39;s Standard Form 95, Claim for Damage, Injury or
Death (“SF-95”) dated October 18, 2017 [Doc.
6-1]; (2) plaintiff39;s second SF-95 received December 12,
2018 [Doc. 6-4]; and (3) a letter from the VA dated January
3, 2019. [Doc. 6-5]. These documents are essential to show
whether Mr. Spinazzola “has complied with and otherwise
satisfied the prerequisites established under the
[FTCA].” [See Doc. 2, p1');">p. 1-2 ¶ 4
(referencing all three documents)]. Plaintiff does not
dispute the contents or authenticity of these exhibits,
attaching all three to his response brief. [See
Docs. 8-1, 8-3, 8-4]. For these reasons, the three documents
are not “outside the pleadings” for purposes of
defendant39;s 12(b)(6) motion and the court may consider
them without treating the motion to dismiss as one for
summary judgment. GFF Corp., 130 F.3d at 1385;
Prager v. LaFaver, 180 F.3d 1185');">180 F.3d 1185, 1189 (10th Cir.
1999) (“[I]f a defendant attaches to a 12(b)(6) motion
materials referred to by the plaintiff and central to his
claim, the court has discretion to consider such
an action may be brought against the United States for money
damages for personal injury caused by the negligent act or
omission of a government employee, plaintiffs “shall
have first presented the claim to the appropriate Federal
agency and his claim shall have been finally denied by the
agency in writing and sent by certified or registered
mail.” 28 U.S.C. § 2675(a). To that end, Mr.
Spinazzola sent his first SF-95 to the VA in October 2017
alleging medical negligence:
Mr. Spinazzola's treating physicians failed to inform him
of, or treat, a pancreatic tumor after it was first
identified in September of 2016. Mr. Spinazzola continued in
doctors' care for another year, which resulted in
additional needless pain and suffering, before the tumor was
ultimately identified. Doctors then performed a
Pancreaticoduodenectomy. Doctors confirmed that the tumor