Welch v. U.S. Dep't of Veterans Affairs

TONY PEREZ WELCH, Plaintiffs, v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Defendant.

Civil Action No.: 7:19cv48

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION

February 26, 2020

By: Michael F. Urbanski Chief United States District Judge

MEMORANDUM OPINION

Plaintiff Tony Perez Welch ("Welch"), filed this action pro se, on January 22, 2019, alleging multiple wrongs he claims were committed by the Veterans Affair Medical Center in Salem, Virginia ("Salem VAMC"). His allegations include medical battery, falsifying medical records, intentional infliction of emotion distress, and discrimination based on race, gender, and disability arising out of medical treatment he received at Salem VAMC from 2000 to 2015. ECF No. 1. The government moved to dismiss Welch's claims for lack of subject matter jurisdiction and for failure to state a claim under Fed. R. Civ. Proc. 12(b)(6). ECF No. 5. Welch subsequently moved for leave to file an amended complaint, ECF No. 14, and filed a motion for sanctions against the government for spoliation of evidence, ECF No. 21.

Pursuant to 28 U.S.C. § 636(b)(1)(B), the court referred both dispositive and non-dispositive matters to United States Magistrate Judge Robert S. Ballou. ECF No. 11. The magistrate judge dispensed with oral argument because he did not find it would aid the decisional process as regards the pending motions. On December 5, 2019, the magistrate judge filed a report recommending the court grant the government's motion to dismiss and deny Welch's motion to amend the complaint. No objections were filed.

For the reasons stated below, the court will ADOPT the report and recommendation to the extent consistent with this opinion, GRANT the government's motion to dismiss, and DENY Welch's motion to amend the complaint. The court also DENIES Welch's motion for sanctions.

I.

As a preliminary matter, the magistrate judge found that Welch's claims must be dismissed for lack of subject matter jurisdiction under Fed. R. Civ. Proc. 12(b)(1). Subject matter jurisdiction is a threshold issue. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 95-102 (1998). A motion to dismiss for lack of subject matter jurisdiction should be granted if material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). In making this determination, the court can "consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Id. (quoting Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991)).

A. Sovereign Immunity

The magistrate judge recommended that Welch's two intentional tort claims be dismissed for lack of lack subject matter jurisdiction on sovereign immunity grounds. Welch brings claims of "fraudulent concealment" of his medical condition as well as "assault" based on allegations of sexual harassment and battery. As an arm of the federal government, the Salem VAMC is subject to suit only if the federal government waives sovereignimmunity. United States v. Sherwood, 312 U.S. 584, 586 (1941); FDIC v. Meyer, 510 U.S. 471, 475 (1994) ("Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit."). Welch carries the burden of demonstrating unequivocal waiver of sovereign immunity. Welch v. United States, 409 F.3d 646, 650-51 (4th Cir. 2005).

The Federal Tort Claims Act contains a limited waiver of sovereign immunity. The FTCA waives the United States' sovereign immunity only to claims for personal injury "resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 2679(b)(1). The FTCA excepts from its waiver of sovereign immunity "[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." 28 U.S.C. § 2680(h). The FTCA does not include in its waiver of liability intentional torts such as misrepresentation or "fraudulent concealment" nor does it cover assault by a physician, because a federal employee who commits assault would no longer be acting within the scope of her employment.¹ Therefore, the court agrees with the magistrate judge that it lacks subject matter jurisdiction to hear these claims.

B. Administrative Exhaustion and Timeliness Under FTCA

Second, the magistrate judge found that for many of his claims, Welch has not satisfied the exhaustion requirements, requiring him to seek all available administrative remedies before turning to the judicial process. Under the FTCA, an individual must makean initial presentation of his tort claim to the appropriate federal agency within two years of the accrual of the cause of action. See 28 U.S.C. § 2401(b). Welch initiated his claim against the VAMC by filing a Standard Form 95 "Claim for Damage, Injury, or Death" ("SF-95") with the U.S. Department of Veterans Affairs ("VA") on January 25, 2017. ECF No. 6-1 at 2. Welch presented several claims including: misdiagnosis of a skin condition, denial of medical treatment, treatment by an unqualified physician, and concealment or coverup of staff shortage. ECF No. 24, 7-9. The agency concluded no wrongdoing under the FTCA. ECF No. 6-2. However, Welch's March 26, 2018 motion for reconsideration of the agency decision raised a litany of new claims, including "'black box warning,' sexual harassment, privacy violations, and violations of sundry state and federal laws." ECF No. 6-3. The magistrate judge concluded that all claims not pled in an initial filing with the agency pursuant to the FTCA are barred for lack of subject matter jurisdiction.

Third, the magistrate judge found several of Welch's claims to be barred as untimely. The initial presentation requirement under the FTCA also serves as the statute of limitations dictating timeliness for tort actions against the government. This limitation cannot be tolled or waived, Gould v. U.S. Dep't of Health & Human Servs., 905 F.2d 738, 742 (4th Cir. 1990), and accrues at the time of the plaintiff's injury. Id. at 747. A cause of action accrues under the FTCA when the plaintiff knows, or in the exercise of due diligence, should have known, of the existence of the injury and its cause. United States v. Kubrick, 444 U.S. 111, 123-25 (1979). A claim relating to medical treatment will accrue "even if the claimant does not know the precise medical reason for the injury, provided that he knows or should know that some aspect of the medical treatment caused the injury." Hahn v. United States, 313Fed. Appx. 582, 585 (4th Cir. 2008). Accordingly, The magistrate judge found that Welch's claim of sexual harassment occurred in 2012. ECF No. 24, at 8. Additionally, he found that Welch's claim for intentional infliction of emotional distress occurred in 2001. Id. The court agrees with the magistrate judge that all claims arising out of injuries that occurred more than two years prior to the filing of Welch's SF-85 are barred for lack of subject matter jurisdiction.

C. Expert Requirements Under VMMA

The magistrate judge found that the remaining claims Welch brings under the FTCA are barred by Virginia law. Welch's medical malpractice claims that remain fall under the Virginia Medical Malpractice Act ("VMMA"). These include misdiagnosis of his skin condition, denial of medical treatment, treatment by an unqualified physician, and concealment or cover up of staff shortage. ECF No. 24 at 9-11. The magistrate judge found that these allegations fall within the VMMA's definition of malpractice: "any tort action or breach of contract action for personal injuries or wrongful death, based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient." Va. Code. Ann.§ 8.01-581.1.

For malpractice claims, the VMMA requires a plaintiff to obtain certification from an expert witness that his claim has merit before serving process on the defendant. Va. Code Ann. § 8.01-20.1. The failure to comply is fatal to the claim. See Moody v. DeJesus, No. 7:08cv432, 2009 WL 187682, at *2 (W.D. Va. Jan 23, 2009); Bond v. United States, No. 1:08cv324, 2008 WL 4774004, at *2-3 (E.D. Va. Oct. 27, 2008); Parker v. United States, 475 F.Supp.2d 594, 597 (E.D. Va. 2007), aff'd, 251 Fed. Appx. 818 (4th Cir. 2007). The limitedexception to this requirement involves theories of liability where the "the alleged act of negligence clearly lies within the range of the jury's common knowledge and experience" and is rarely applicable. Beverly Enterprises-Virginia v. Nichols, 247 Va. 264, 441 S.E. 2d 1 (1994) (applying the common knowledge exception where a nursing home failed to prevent the choking death of a patient when they had previously been warned that the patient needed assistance while eating). Welch failed to procure an expert, and the magistrate judge found that his claims of negligence do fall within the limited exception to the VMMA's requirements. ECF No. 24 at 10-11. The court agrees that the malpractice claims are barred for failure to comply with the requirements of the VMMA.

Accordingly, the court accepts the magistrate judge's conclusions regarding the lack of subject matter jurisdiction for the FTCA claims and GRANTS defendant's motion to dismiss as to these claims.

II.

The magistrate judge also found that Welch's remaining claims were not sufficiently pled and should be dismissed under Fed. R. Civ. Proc. 12(b)(6). To survive a motion to dismiss, Welch must "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)). The plausibility standard requires more than "a sheer possibility that a defendant has acted unlawfully." Id....