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Spinazzola v. United States

United States District Court, N.D. Oklahoma

November 15, 2019

DAVID SPINAZZOLA, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          OPINION AND ORDER

          GREGORY K. FRIZZELL UNITED STATES DISTRICT JUDGE.

         Before 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 plaintiff's medical negligence claims. Plaintiff's remaining negligent hiring and supervision claims are dismissed sua sponte for lack of subject matter jurisdiction.

         I. Background

         This lawsuit arises out of the alleged failure of plaintiff'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. Spinazzola'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].

         Several months later, Mr. Spinazzola reported to Jodie Popp, a Physician'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. Spinazzola'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].

         Mr. 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. Spinazzola'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.'s delay in treating the tumor first identified in September 2016.” [Id., ¶ 29].

         Mr. 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 Plaintiff's Complaint is time-barred.” [Doc. 6, 1');">p. 1].

         II. Legal Standard

         The 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 claim'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)).

         Generally, “[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.'” 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 plaintiff's claim, the plaintiff is obviously on notice of the document'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 plaintiff'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).

         Such is 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: plaintiff's Standard Form 95, Claim for Damage, Injury or Death (“SF-95”) dated October 18, 2017 [Doc. 6-1]; (2) plaintiff'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 defendant'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 materials.”).

         III. Analysis

         Before 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 grew ...

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