United States District Court, W.D. Virginia, Roanoke Division
DUSTIN P. BLANKENSHIP, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
GLEN E. CONRAD, Chief District Judge.
Plaintiff Dustin Blankenship, an Iraqi war veteran, filed this action against the United States, seeking to recover for injuries he sustained during a knee surgery performed at the Salem Veterans Affairs Medical Center ("SVAMC") in Salem, Virginia. The case is now before the court on two motions to dismiss filed by the United States. For the following reasons, those motions will be granted in part and denied in part.
Factual and Procedural Background
The following facts, taken from Blankenship's complaint, are accepted as true for purposes of considering the motions to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Katyle v. Perm Nat'l Gaming, Inc., 637 F.3d 462, 466 (4th Cir. 2011).
Dr. Charles Roberson, an orthopedic surgeon, performed a "left knee arthroscopy with medial meniscus repair and anterior cruciate ligament reconstruction with bone-patella-bone autograph" on Blankenship at the SVAMC on February 8, 2011. Compl. ¶¶ 7, 12, Docket No. 1. Blankenship alleges that he has suffered severe and permanent injuries as a result of errors made during that surgery. See id. ¶¶ 59-62.
On December 12, 2012, Blankenship filed suit against Roberson, an independent contractor, alleging medical malpractice. See Case No. 7:12-CV-00602. On February 3, 2013, Blankenship filed an administrative claim with the Department of Veterans Affairs ("DVA"), seeking compensation for his injuries. Compl. ¶ 4. The court stayed Blankenship's case against Dr. Roberson pending resolution of his administrative claim on April 3, 2013. See 7:12-CV-00602 at Docket No. 18.
On November 18, 2014, the DVA denied Blankenship's claim. Compl. ¶ 4. Thereafter, Blankenship filed this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2401(b), 2671-2680, alleging that the DVA was negligent in hiring, retaining, and supervising Dr. Roberson. Compl. ¶¶ 31-50. Blankenship also alleges that members of the SVAMC surgical team negligently failed to supervise Dr. Roberson or otherwise breached their respective standards of care. Id . ¶¶ 14-30. Blankenship seeks $2, 000, 000 in compensatory damages, plus attorneys' fees and costs.
The court granted Blankenship's motion to consolidate this case with his case against Dr. Roberson on December 15, 2014. See Docket No. 14. The United States has now moved to dismiss the case against it pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. These motions have been fully briefed and were argued on March 26, 2015. They are now ripe for review.
Standards of Review
Federal Rule of Civil Procedure 12(b)(1) allows for dismissal of an action over which the court lacks subject matter jurisdiction. A plaintiff bears "the burden of proving that subject matter jurisdiction exists." Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). When evaluating a motion to dismiss pursuant to Rule 12(b)(1), a court can "regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Id . (internal quotation marks omitted). A court should grant the motion "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id . (internal quotation marks omitted). When a defendant asserts multiple defenses, "questions of subject matter jurisdiction must be decided first, because they concern the court's very power to hear the case.'" Owens-Illinois, Inc. v. Meade, 186 F.3d 435, 442 n.4 (4th Cir. 1999).
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). When considering a motion to dismiss, the court must accept the well-pled facts in the complaint as true and make all reasonable inferences in the plaintiffs favor. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The court need not accept as true any legal conclusions disguised as factual allegations, however. See Ashcroft v. Iqbal, 556 U.S. 662, 679-81 (2009). The plaintiffs allegations need not be detailed, but he must offer more than "labels and conclusions" or a "formulaic recitation of the elements of [the] cause of action" in order to survive a motion to dismiss. Twombly, 550 U.S. at 555. Ultimately, the complaint's allegations must "be enough to raise a right to relief above the speculative level." Id.
I. Rule 12(b)(1) Motion to Dismiss
The United States argues that the court lacks subject matter jurisdiction over Blankenship's claim, both to the extent that it seeks to recover for the alleged negligence of Dr. Roberson and to the extent that it seeks to recover for the alleged negligence of the SVAMC ...