Summary
In Sciolino, the Plaintiff wife filed one Form 95 on behalf of herself and her husband concerning an injury caused by the Veterans Affairs Medical Center.
Summary of this case from MacDonald v. United StatesOpinion
No. 98-CV-0450E(M).
March 15, 2001.
Brian P. Fitzgerald, Esq., Napier, Fitzgerald Kirby for Plaintiff.
Mary K. Roach, Esq., Asst. United States Attorney for Defendant.
MEMORANDUM and ORDER
Plaintiff Clohe Sciolino, individually and on behalf of her husband Anthony, filed this action pursuant to the Federal Torts Claim Act, 28 U.S.C. § 2671-2680 ("the FTCA"), July 17, 1998 alleging that the pharmacy at the Buffalo Veterans Affairs Medical Center ("the V.A.M.C.") had negligently filled Anthony's prescription for 1mg. tablets of Coumadin with 2.5mg. tablets resulting in an overdose which caused him serious injuries and ultimately led to a coma. Plaintiff also raised a derivative claim. Defendant moved, pursuant to Rules 12(b)(1), 12(h)(3) and 56(b) of the Federal Rules of Civil Procedure, November 29, 2000 to dismiss (1) plaintiff's claims that the V.A.M.C. hospital was negligent in treating Anthony after he had overdosed and (2) her derivative claim on the basis that this Court lacks subject matter jurisdiction over such because they were not properly asserted in the administrative claim.
This claim is only raised in plaintiff's interrogatory responses.
A Standard Form 95 ("SF-95") administrative claim was filed with the Department of Veterans Affairs on behalf of plaintiff by her legal representative, Brian P. Fitzgerald, Esq. This form list both "Anthony V. Sciolino and his wife Clohe Sciolino" as claimants, both of their birthdates are given and it is signed by Fitzgerald on behalf of both. The factual basis of their claim, stated in its entirety, is that:
Plaintiff submitted two administrative claim forms which are identical except for the date of claim. The first is dated August 15, 1997 and the second November 10, 1997.
"Anthony V. Sciolino has been under the care of the V.A.M.C., Buffalo, for heart related problems. The outpatient clinic prescribed Coumadin, which he has been taking for approximately one year, and he has been followed by the Coumadin Clinic with blood tests every six weeks. On his last refill, which was filled at the V.A.M.C. pharmacy on 6/20/97, he was prescribed 1mg. per day and 2mg. on Saturday and Sunday. He began taking the Coumadin as prescribed. On July 22, 1997 he was hospitalized at the V.A.M.C. with bleeding. It was discovered that the Prescription for 1mg. tablets was filled with 2-1/2mg. Tablets. The pharmacy admitted the mistake. Within 24 hours of being admitted to the V.A.M.C., Anthony V. Sciolino developed complications and had to be resuscitated. After the resuscitation he remained unconscious. His unconscious state has persisted to the present." Def.'s Statement of Undisputed Facts Exs. A B (SF-95s).
The total amount of damages claimed in the SF-95 was $5,000,000. After receiving this administrative claim, Joseph G. Moreno, Esq., Regional Counsel of the Department of Veterans Affairs, wrote to Fitzgerald stating that it had received the "Administrative Tart Claim of Anthony V. Sciolino and Clohe Sciolino" and requesting a "copy of a medical opinion supporting the allegation of malpractice." Def.'s Statement of Undisputed Facts Ex. F (Moreno December 4, 1997 Letter). Plaintiff never responded to this letter, but filed the present action July 17, 1998. In her complaint plaintiff raised two causes of action — viz., (1) negligence on the part of the V.A.M.C. pharmacy in filling the prescription for Coumadin and (2) a derivative claim. Plaintiff claimed damages in the amount of $5,000,000 on the first cause of action and $1,000,000 on the second. On August 17, 1998 Moreno wrote to Fitzgerald stating that the Department of Veterans Affairs was denying the "claim of Clohe Sciolino, Individually and as Wife of Anthony Sciolino, against the Department of Veterans Affairs in the amount of $5,000,000, alleging that while a patient at the Buffalo VA Medical Center he was given an inappropriate amount of [C]oumadin for heart related problems which resulted in serious complications ***." Def.'s Statement of Undisputed Facts Ex. G (Moreno August 17, 1998 Letter).
During discovery, defendant served interrogatories on the plaintiff, one of which requested that she "[s]et forth specifically what negligent and careless acts or acts constituting malpractice were allegedly performed by defendant, United States of America, its agents, servants and employees." In her response to such plaintiff stated that:
"Upon information and belief, the defendant, United States of America, and/or its agents, servants, and/or employees, was negligent, careless, and unskillful, and deviated from the applicable standard of care, in wrongfully failing to fill Anthony Sciolino's relevant prescription with Coumadin tablets containing one milligram of Warfarin, as had been prescribed, and instead filled his relevant prescription with Coumadin tablets each containing two and one-half milligrams of Warfarin. See also, paragraphs 8-11 of the Complaint. Additionally, upon information and belief, upon admission to the V.A. hospital on July 22, 1997, defendant, by its agents, servants and employees, failed to properly diagnose, treat and care for Anthony Sciolino with regard to the overdose of Coumadin from which he was suffering and failed to render appropriate and careful monitoring." Def.'s Statement of Undisputed Facts Ex. H (Pls.' Response to Def.'s First Set of Interrogs. ¶ 2.).
After receiving this response, defendant served a second set of interrogatories, requesting that plaintiff state "the manner in which defendant, by its agents, servants and employees failed to properly diagnose, treat and care for Anthony Sciolino with regard to the overdose of Coumadin" and "failed to render appropriate and careful monitoring to Anthony Sciolino." Plaintiff responded by stating that, upon information and belief,
"the defendant by its agents, servants and employees failed to properly diagnose, treat and care for Anthony Sciolino in that they failed to properly and adequately assess the symptoms from which he was suffering when he arrived at the emergency room, they failed to properly and adequately assess the significance of his chest pain, they failed to properly and adequately assess the degree to which he was prone to severe hemorrhage, they failed to properly and adequately assess his unstable medical condition, they failed to properly and adequately assess his bleeding in a timely manner, they failed to a CT scan or other tests to assess his bleeding in a timely manner, they failed to properly restrain him and/or monitor him in that on July 22, 1997, he was left unattended with the bed in the highest raised position and he fell out of bed, they failed to adequately and timely treat his Coumadin overdose upon arrival so that he subsequently suffered a severe intracranial bleed and stroke which resulted in left side paralysis, they failed to properly, adequately and carefully monitor his condition throughout the night of 7/22-23/97 until the time of 6:15 a.m. when he was found unresponsive and dropped his pulse, they failed to properly and adequately assess his condition, including his medical condition and the Coumadin overdose such that he went into cardiac arrest on the morning of 7/23/97." Def.'s Statement of Undisputed Facts Ex. I (Pls.' Response to Def.'s Second Set of Interrogs.).
Discovery in this case closed November 5, 1999. On November 29, 2000 defendant filed the present motion seeking to dismiss the claim of medical malpractice relating to Anthony's treatment at the V.A.M.C. raised by plaintiff in her interrogatory responses and the derivative claim on the basis that they had not been raised in the administrative claim filed with the Department of Veterans Affairs and that, consequently, this Court lacks subject matter jurisdiction over them.
"The FTCA is a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private employer for certain torts of `employees' acting within the scope of their employment." B A Marine American Foreign Shipping, 23 F.3d 709, 712 (2d Cir.) cert. denied 513 U.S. 961(1994). A plaintiff may not file suit before first exhausting his administrative remedies. McNeil v. United States, 508 U.S. 106, 107(1993).
"[A]n administrative claim need not meet formal pleading requirements. All that is necessary is that a claim be specific enough to serve the purposes intended by Congress in enacting § 2675(a) — to ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States. Toward this end, the government requires all claimants to submit Standard Form 95, a one page claim form requesting a `description of accident' and the `nature and extent of injury.'" Johnson by Johnson United States, 788 F.2d 845, 848-849 (2d Cir.) cert. denied 479 U.S. 914(1986).
"An action shall not be instituted upon a claim upon the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant 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. The failure of any agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. ***." 28 U.S.C. § 2675(a).
Internal citations and quotation marks omitted.
"Section 2675(a) does not require formal pleadings or that a valid legal claim be alleged but only the basic elements of notice of accident and injury and a sum certain representing damages so that the agency may investigate it. Although these requirements are jurisdictional and must be adhered to strictly," they should not be extended so as "to require that a ground of liability cannot be maintained unless factual elements uniquely related to that theory were first presented in the administrative claim." Id. at 849. A "Notice of Claim filed pursuant to the FTCA must provide enough information to permit the agency to conduct an investigation and to estimate the claim's worth. A claim must be specific enough to serve the purpose of the FTCA to enable the federal government to expedite the fair settlement of tort claims" — Romulus v. United States, 160 F.3d 131, 132 (2d Cir. 1998) — and must include a sum certain Adams by Adams v. U.S. Dept. of Housing Urban Dev., 807 F.2d 318, 320 (2d Cir. 1986).
"For purposes of the provisions of 28 U.S.C. § 2401(b), 2672, and 2675, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury or death alleged to have occurred by reason of the incident; and the title and legal capacity of the person signing, and is accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative." 28 C.F.R. § 14.2(a).
Internal citations and quotation marks omitted.
Defendant seeks to dismiss plaintiff's claim for medical malpractice relating to Anthony's treatment in the V.A.M.C. hospital for his Coumadin overdose for lack of subject matter jurisdiction, on the basis that it was never raised in their administrative claim. In her administrative claim, plaintiff stated that "[w]ithin 24 hours of being admitted to the V.A.M.C., Anthony V. Sciolino developed complications and had to be resuscitated. After the resuscitation he remained unconscious. His unconscious state has persisted to the present." Def.'s Statement of Undisputed Facts Exs. A and B (SF-95s). It is presumably this statement about "complications" that prompted the Department of Veterans Affairs to request a copy of a medical opinion supporting the allegation of malpractice" — Def.'s Statement of Undisputed Facts Ex. F (Moreno December 4, 1997 Letter) — because such would not be required to substantiate the claim that the pharmacy negligently refilled his prescription, only a claim that the physicians treating the overdose committed medical malpractice. This Court accordingly finds the administrative claim plaintiff submitted to the Department of Veterans Affairs to be sufficient to satisfy the requirements of section 2675(a) necessary to confer subject matter jurisdiction over such claim on this Court. See, e.g., Dundon v. United States, 559 F. Supp. 469, 476-477 (E.D.N.Y. 1983).
This Court notes that defendant would be liable for Anthony's injuries regardless of whether they were caused solely by the pharmacy's alleged negligence resulting in the overdose of Coumadin or were exacerbated by the alleged malpractice of the doctors treating him for such at the V.A.M.C. hospital because it is an "unassailable proposition of New York law `that a wrongdoer is liable for the ultimate result, though the mistake or even negligence of the physician who treated the injury may have increased the damage which would otherwise have followed from the original wrong.'" Modave v. Long Island Jewish Medical Center, 501 F.2d 1065, 1072 (2d Cir. 1974) (quoting Milks v. McIver, 264 N.Y. 267, 270(1934)).
Defendant also seeks to dismiss the derivative claim on the basis that this Court lacks subject matter jurisdiction over it because it was not properly asserted in the administrative claim, An administrative claim containing the names, dates of birth and signatures of both a principal claimant and his spouse, alleging that serious injury has been sustained by the principal claimant, is sufficient to place the United States on notice that a derivative claim is being brought by the named spouse regardless of whether a separate set of facts regarding the derivative claim and/or a separate sum certain are alleged for such spouse. See, e.g., Hanlon United States, 134 F.R.D. 42, 43 (E.D.N.Y. 1991); Casey v. United States, 635 F. Supp. 221, 225-226 (D. Mass. 1986); Hardiman v. United States, 752 F. Supp. 52, 53-54 (D.N.H. 1989); Loper v. United States, 904 F. Supp. 863, 865-866 (N.D. Ind. 1995); but see e.g. Willie v. United States, No. 92-CV-1143, 1993 WL 184149, at *6 (N.D.N.Y. 1993).
The other cases relied on by defendant are easily distinguishable. Rispoli v. United States, 576 F. Supp. 1398, 1403 (E.D.N.Y. 1993) (spouse not listed in SF95, only in separate affidavit and no response to government's request for sum certain); Fol v. United States, 548 F. Supp. 1257, 1258 (S.D.N.Y. 1982) (spouse not listed as claimant in SF95); Wisner v. United States, 154 F.R.D. 39, 40 (N.D.N.Y. 1994) (same); Heaton v. United States, 383 F. Supp. 589, 591 (S.D.N.Y. 1974) (spouse did not sign SF95 as claimant); Dandero v. United States, 775 F. Supp. 144, 146 (D. De. 1991) (loss of consortium mentioned in claim, but spouse not listed as claimant).
The administrative claim filed listed both Anthony and Clohe as claimants, gave both of their dates of birth, was signed by Fitzgerald as claimants' representative and alleged that Anthony had sustained serious injuries. Included with the administrative claim form was a letter signed by "Clohe Sciolino, Individually and as spouse of Anthony V. Sciolino" which stated that "Please be advised that we, Anthony V. Sciolino and Clohe Sciolino, have appointed the law firm of Napier, Fitzgerald Kirby, Brian P. Fitzgerald, Esq., of Counsel, as our legal representative to act on our behalf and present a claim in this matter." Compl. Exs. C and D. Therefore the Department of Veterans Affairs received sufficient notice of Clohe's derivative claim under the FTCA and this Court accordingly has subject matter jurisdiction to consider such. In her complaint plaintiff claimed $5,000,000 on behalf of Anthony for the negligence claim and an additional $1,000,000 for her derivative claim; however because section 2675(b) of the FTCA states that "[a]n action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the Federal agency ***" and plaintiff only claimed a total of $5,000,000 in her SF95 administrative claim, she, individually and on behalf of Anthony, is limited to a maximum aggregate recovery of $5,000,000.
Accordingly, it is hereby ORDERED that defendant's motion to dismiss plaintiff's medical malpractice and derivative claims for lack of subject matter jurisdiction is denied.