Brown v. United States

1

BLANCHE A. BROWN, Plaintiff, v. UNITED STATES, et al., Defendants.

Civil Action No. 21-829-RGA

United States District Court, D. Delaware

March 9, 2023

Blanche A. Brown, Atglen, Pennsylvania. Pro Se Plaintiff.

David C. Weiss, United States Attorney, and Jacob Laksin and Shamoor Anis, Assistant United States Attorneys, Wilmington Delaware. Counsel for Defendant United States.

Colleen D. Shields, Esquire, and Alexandra Rogin, Esquire Eckert Seamans Cherin & Mellott LLC, Wilmington, Delaware. Counsel for Defendant Thomas Jefferson Oral & Maxillofacial Surgery

MEMORANDUM OPINION

ANDREWS, U.S DISTRICT JUDGE:

Plaintiff Blanche A. Brown appears pro se. She commenced this lawsuit on June 7, 2021. (D.I. 1). The thirty-three page Amended Complaint is the operative pleading. (D.I. 4). Before the Court is a motion to dismiss (D.I. 37) filed by the United States (“the Government”). The motion has been fully briefed. (D.I. 37, 43, 44, 45, 46).

I. BACKGROUND

I take the factual allegations of the Amended Complaint as true and construe them in the light most favorable to Plaintiff. For purposes of this factual narrative, I have considered Plaintiffs administrative claims against the United States Department of Veterans Affairs (“the VA”) in parsing her allegations. (D.I. 40). I have also considered Plaintiffs briefing (D.I. 43, 44, 46) in response to the Government's motion to dismiss to help contextualize and clarify the allegations in the Amended Complaint, which are difficult to follow.

Plaintiff is a 100% disabled veteran and beneficiary of Veterans Administration benefits. (D.I. 4 at ¶ 5). Her disability is due to a cardiac condition. (Id. at ¶ 13).

In May 2019, Plaintiff fractured a molar eating food purchased at the Wilmington VA Medical Center (“the Wilmington VAMC”). (D.I. 40 at 3). In June 2019, she visited the Wilmington VAMC, where a dental assistant insisted on placing x-ray plates in her mouth, rather than performing 3-D imaging, and caused her to break a molar on the other side of her mouth. (Id.; D.I. 4 at ¶¶ 25, 51).^[1] The dentist at the Wilmington VAMC recommended extracting the initial broken molar. (D.I. 4 at ¶ 14). In July 2019, Plaintiff saw a third-party endodontist, who concluded that the molar could not be restored and recommended that it be surgically removed as soon as possible by an oral surgeon. (Id. at ¶ 15). The endodontist also concluded that it would be a complex procedure, rather than a routine extraction. (Id.). Specifically, Plaintiff was told it would be “a complex procedure requiring sedation, cutting and sutures.” (Id. at ¶ 24).

During an August 2019 assessment appointment at the Wilmington VAMC, Plaintiff requested a pre-operative meeting with an oral surgeon to discuss the procedure, her concerns, and what to expect. (Id. at ¶ 16). Plaintiff expressed her preference that a licensed oral surgeon, not a trainee, perform the procedure. (Id. at ¶ 18). She also requested a guarantee of hospital admission and an overnight stay following the procedure, which she believed would be an extensive surgery, because of her medical conditions, including her cardiac condition, anxiety, and susceptibility to infections; her history of bleeding during other surgeries; the likely effects of anesthesia, and the danger of making the one-hour drive home on a dangerous interstate highway following surgery that would involve bleeding, throbbing, pain, and blurred vision. (Id. at ¶ 17). A dental assistant stated that Plaintiff had no choice as to who performed the procedure. (Id. at ¶ 18). The VA dentist did not refute this declaration, and told Plaintiff she could take up her concerns with the attending oral surgeon, who would have the final say. (Id.).

On August 23, 2019, Plaintiff presented at the Wilmington VAMC for what she believed was a consultative appointment and saw Dr. G. Joel Funari, a licensed oral surgeon and independent contractor with the Wilmington VAMC. (Id. at ¶ 19). Dr. Funari is affiliated with Thomas Jefferson University Hospital, which is a training partner of the VA's Graduate Medical Education (“GME”) training program. (Id. at ¶ 4).^[2] During the appointment, Dr. Funari advised Plaintiff that he and a trainee were prepared to perform the extraction. (Id. at ¶¶ 19, 20). Plaintiff thought the appointment was a consultation only and, because she believed the tooth extraction was a complex procedure, she reiterated her preference that a licensed provider, rather than a trainee, perform the procedure. (Id. at ¶¶ 19-21). Dr. Funari did not conduct even a cursory examination of the molar and, after mischaracterizing the procedure as routine, he baselessly denied and disparaged Plaintiffs request for guaranteed admission and an overnight stay. (Id. at¶¶ 20-22). The Wilmington VAMC Dental Chief, and other VAMC employees, “stood by with their hands in their pockets and watched (allowing) [Dr. Funari] to run roughshod over [Plaintiff] and make decisions about [her] care-absent input from Plaintiff and to [Plaintiffs] detriment.” (Id. at ¶ 22). Plaintiff asserts, “Wilmington VAMC administrators effectively abdicated their own authority and responsibility-and improperly conferred patient treatment authority to [Dr. Funari]- even though the decision was based on unlawful retaliation.” (Id.) (capitalization altered).

Dr. Funari's medical notes in Plaintiffs chart refer to Plaintiffs demand for an overnight hospitalization for the procedure because of a bleeding problem due to leukopenia and a complicated medical history. (Id. at ¶ 23). The notes state that there was no medical indication to admit Plaintiff to the hospital for a routine extraction. (Id.).

Dr. Funari instructed Plaintiff to contact her primary medical care team at Lebanon VAMC who then made a referral to her cardiologist. (Id. at ¶ 25). A Wilmington VAMC dentist saw no problem with Dr. Funari's notes. (Id.). Plaintiff's emergency dental issue was not addressed even after she was medically cleared, and, two years later, in June 2021, it remained untreated. (Id.). However, in more recent filings, Plaintiff has stated that the initial molar she broke while eating in the Wilmington VAMC cafeteria in May 2019, which was the tooth at issue during the August 2019 encounter with Dr. Funari, was safely extracted in December 2021, and the VA provided roundtrip transportation. (D.I. 44 at 10 n.4; D.I. 50 at 2 n.2). The molar that was cracked by the Wilmington VAMC dental assistant during x-rays in June 2019 “is not yet completely repaired.” (D.I. 50 at 2 n.2) (capitalization altered).

The Amended Complaint contains seventeen counts. The captions of a count are not always consistent with the body of the count. And it is not always clear which Defendants are supposed to be a defendant in each count. The Court takes a broad reading of what Plaintiff claims: Count 1, unlawful discrimination, in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; Section 1557 of the Patient Protection and Affordable Care Act, 42 U.S.C. § 18116, the Federal Tort Claims Act, 28 U.S.C. § 1346(b), and the United States Constitution; (2) Count 2, violation of the Thirteenth Amendment to the United States Constitution; (3) Count 3, violation of the Fourteenth Amendment to the United States Constitution; (4) Count 4, retaliation for Plaintiff expressing preferences related to the dental extraction in violation of the First Amendment to the United States Constitution; (5) Count 5, negligence and gross negligence under the Federal Tort Claims Act and Delaware law; (6) Count 6, discrimination for failure to accommodate Plaintiff's disabilities in violation of the Rehabilitation Act and the Affordable Care Act; (7) Count 7, discrimination in federal programs and retaliation in violation of the Rehabilitation Act and the Affordable Care Act; (8) Count 8, privacy violations under 5 U.S.C. § 552a, HIPAA, and invasion of privacy under Delaware law; (9) Count 9, negligence perse in violation of federal statutes, regulations and policies under the Federal Tort Claims Act; (10) Count 10, negligent entrustment in violation of the Federal Tort Claims Act and Delaware law; (11) Count 11, negligent breach of the implied covenant of good faith and fair dealing in violation of the Federal Tort Claims Act and Delaware law; (12) Count 12, tortious interference with, and breach of, contract in violation of Delaware law; (13) Count 13, negligent misrepresentation in violation of the Federal Tort Claims Act and Delaware law; (14) Count 14, breach of fiduciary duty in violation of the Federal Tort Claims Act and Delaware law; (15) Count 15, negligent training of a VA Clinic dental assistant Brenda; (16) Count 16, negligent infliction of emotional distress in violation of the Federal Tort Claims Act and Delaware law; and (17) Count 17, intentional infliction of emotional distress and willful misconduct and grave indifference in violation of the Federal Tort Claims Act and Delaware law.

Plaintiff seeks costs, compensatory, consequential, and punitive damages and injunctive, mandamus, and declaratory relief.

The Government moves for dismissal pursuant to Rule 12(b)(1), for lack of subject matter jurisdiction, and Rule 12(b)(6), for failure to state a claim. Plaintiff opposes the motion to dismiss.

II. LEGAL STANDARDS

A. Rule 12(b)(1)

Rule 12(b)(1) of the Federal Rules of Civil Procedure permits the dismissal of an action for lack of subject matter jurisdiction. A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. See Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial attack contests the sufficiency of the pleadings, whereas a factual attack contests the sufficiency of...