Shields v. United States

436 F.Supp.3d 540

Conroy SHIELDS, Plaintiff,

v.UNITED STATES of America, Defendant.

No. 3:18-cv-01655 (JAM)

United States District Court, D. Connecticut.

Signed January 31, 2020

Daniel P. Scholfield, Monte E. Frank, Pullcom & Comley, LLC, Bridgeport, CT, for Plaintiff.

ORDER DENYING MOTION TO DISMISS

Jeffrey Alker Meyer, United States District Judge

This case asks whether a federal court in a medical malpractice action under the Federal Tort Claims Act ("FTCA") should apply the Federal Rules of Civil Procedure or should apply special state law pleading rules. Connecticut has a special pleading rule for medical malpractice actions. The Connecticut rule requires a plaintiff to file not just an ordinary complaint that states a claim for malpractice but also to attach to the complaint a detailed written opinion from a third-party health care provider to corroborate the plaintiff's claim. See Conn. Gen. Stat. § 52-190a.

I don't doubt the good intentions behind the Connecticut law to discourage baseless claims of medical malpractice. But the law imposes heightened pleading requirements that the FTCA does not require and that also conflict with the Federal Rules of Civil Procedure. Therefore, I decline to apply Connecticut's special pleading rule and will deny the Government's motion to dismiss the complaint.

BACKGROUND

The complaint alleges the following facts, which I accept as true for the purposes of the Government's motion to dismiss. Doc. #13. Conroy Shields is a veteran of the U.S. Army. In 1995, Shields began complaining of back pain, and tests conducted that year by the West Haven Veterans Administration ("VA") Medical Center revealed damage in the area of the L4-L5 vertebrae. Despite this evidence of injury, and aware of the risks of not operating, the VA doctors refused to operate. Although Shields complained many times of back pain, and the VA conducted many MRIs showing back damage, the VA never showed those MRIs to Shields and consistently refused to operate on his back.

In 2016, the VA finally showed Shields an MRI revealing not only extensive back injury, but also the presence of exposed nerves, indicating that Shields was at risk of permanent paralysis. The VA still refused to conduct back surgery or any treatment other than pain relief, so Shields went to another hospital and had surgery. But by that time osteoarthritis had already set in. Now Shields will be in pain for the remainder of his life because of the VA's delay in properly treating his back.

Shields filed an administrative claim for malpractice with the VA, but the claim was denied. He followed by filing this lawsuit. Doc. #1. He has twice amended his complaint, Docs. #11 and #13, and he now sues the United States for medical malpractice under the FTCA.¹

The Government moves to dismiss pursuant to Fed. R. Civ. P. 12 on grounds that Shields has not complied with Connecticut's special pleading requirements for a medical malpractice claim. See Conn. Gen. Stat. § 52-190a. Because the terms and operation of Connecticut's law are fundamental to this ruling, I will describe its pleading requirements in some detail.

Connecticut law provides that no civil action shall be filed for medical malpractice "unless the attorney or party filing the action ... has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant." Conn. Gen. Stat. § 52-190a(a). To implement this duty of inquiry, the law imposes an explicit good faith certification requirement: that "[t]he complaint ... shall contain a certificate of the attorney or party filing the action ... that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant." Ibid.

In addition to this good faith certification, the law provides that "[t]o show the existence of such good faith, the claimant or the claimant's attorney ... shall obtain a written and signed opinion of a similar health care provider ... that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." Ibid. The plaintiff or his attorney "shall attach a copy of such written opinion" to the good faith certificate. Ibid.²

Thus, section 52-190a imposes three interlocking requirements on a plaintiff who wishes to file a medical malpractice action: (1) that the plaintiff make a reasonable inquiry to determine if there are grounds for a good faith belief that there has been medical negligence; (2) that the complaint "contain" a certification of the plaintiff or the plaintiff's attorney that the reasonable inquiry gave rise to a good faith belief that there was medical negligence; and (3) that the plaintiff "attach" to the certification a copy of the detailed third-party medical opinion.

I will refer to the Connecticut law as a "medical certification of merit" requirement, by which I mean primarily the law's requirement that a complaint include a corroborating medical opinion from a similar health care provider. The law provides that the failure of a plaintiff to obtain and file this medical opinion as part of the complaint is grounds for dismissal of the action. See Conn. Gen. Stat. § 52-190a(c).

The Connecticut Supreme Court has noted "that the purpose of § 52–190a and its requirement of a good faith certificate was to prevent the filing of frivolous medical malpractice actions." Morgan v. Hartford Hosp. , 301 Conn. 388, 398, 21 A.3d 451 (2011). It has ruled that both the good faith certificate as well as the medical provider opinion are "akin to a pleading that must be attached to the complaint in order to commence properly the action." Ibid.

Following the Government's filing of its motion to dismiss, I appointed pro bono counsel for Shields because I questioned whether the pleading requirements of section 52-190a should apply in a federal court action. I noted that "[f]ederal courts are divided on the issue of whether such a state law certification requirement applies in federal court, and the Second Circuit has not decided the issue. See Cornelius v. ECHN Rockville Gen. Hosp. , 2014 WL 2986688, at *1 (D. Conn. 2014) (discussing divided authority on this issue)." Doc. #21. After supplemental briefing and oral argument, the Government's motion to dismiss is now ripe for decision.

DISCUSSION

The question here is whether Connecticut's medical certification of merit requirement applies to actions that are filed in federal court against the United States under the FTCA. It is an important question, not just to the parties but also because about half the States impose similar certification requirements for medical malpractice actions. See Benjamin Grossberg, Uniformity, Federalism, and Tort Reform: The Erie Implications of Medical Malpractice Certificate of Merit Statutes , 159 U. PA. L. REV. 217, 222-25 (2010) (surveying state statutes). Across the country courts are divided about whether these kinds of state law certification requirements should be given effect in a federal court. See generally 19 Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE & PROCEDURE § 4511, at 253 (3d ed.) (discussing split of authority).

Sometimes this issue arises in federal diversity cases, i.e. , malpractice actions that end up in a federal court because the plaintiff is a citizen of a different State than the defendant medical provider. And other times the issue arises, as it does here, in the context of a medical malpractice claim against the United States under the FTCA. This difference in jurisdictional context is important. For diversity cases, the extent to which state law applies in federal court turns on consideration of the choice-of-law rules announced in the famous case of Erie R. Co. v. Tompkins , 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and its progeny.³ By contrast, the FTCA itself instructs the federal courts about the law that they should apply.

The FTCA says that when the United States is sued in tort "[t]he United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. Similarly, it waives the Government's sovereign immunity for personal injury tort claims "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b).

The FTCA's reference to the "law of the place" is a reference to state law, and so "the FTCA directs courts to consult state law to determine whether the government is liable for the torts of its employees." Liranzo v. United States , 690 F.3d 78, 86 (2d Cir. 2012). But does this mean that a federal court must give effect to all of a State's laws—not only substantive rules of liability but also procedural filing rules? Or does the FTCA recognize limits on the scope of what state laws should apply in a federal court?

As I understand it, the Government's position is that the FTCA requires a federal court to adopt all of state law (whether dubbed "substantive" or "procedural"), at least so far as necessary to ensure that the Government is no worse off at the end of the day than a private medical defendant would be if sued for the same conduct. The Government's position amounts to what might be called an "equality of outcome determinative" approach: that Congress allows for a waiver of sovereign immunity only if the Government may be assured of exactly the same treatment as a private party defendant would receive if sued for malpractice in a Connecticut state court, and therefore that the Government is entitled to the benefit of all the same laws that might protect a private defendant if the action were filed under state law in a state court.

It seems to me that the Government's approach would lead to no limit on what state law procedural rules could be enforced in a federal...