United States District Court, W.D. Virginia, Roanoke Division
WILLIAM A. HENAHAN, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
Glen E. Conrad Chief United States District Judge.
William A. Henahan filed this action against the United
States of America (the "government") pursuant to
the Federal Tort Claims Act ("FTCA"), 28 U.S.C.
§§ 1346(b), 2401(b), 2671-2680, seeking to recover
for injuries he sustained during a surgery performed at the
Veterans Affairs Medical Center in Durham, North Carolina
("Durham VAMC"). The case is presently before the
court on various motions from the government. For the
following reasons, the government's motion for partial
dismissal as to claims against the health care providers at
the Veterans Affairs Medical Center in Salem, Virginia
("Salem VAMC") will be granted, its motion to
dismiss allegations that North Carolina laws are
unconstitutional will be granted in part and denied in part,
and its motion seeking a court order that North Carolina
substantive law applies will be granted.
following facts, taken from plaintiffs complaint, are
accepted as true for purposes of the motion to dismiss. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
A. Henahan is a 65-year-old Vietnam War veteran. On or about
July 26, 2011, Henahan received an elevated prostate-specific
antigen ("PSA") test at the Salem VAMC. On or about
July 29, 2011, a prostate biopsy confirmed that Henahan had
"prostate cancer Gleason grade 6-9." Compl. ¶
19. In August of 2011, he was also diagnosed with
adenocarcinoma of the prostate. Henahan received another PSA
test in October of 2011, which again revealed abnormal
results. Chin-Ti Lin, M.D., a urologist at the Salem VAMC,
was aware of Henahan's elevated PSA tests but did not
offer radiohormonal therapy or cryotherapy for his
adenocarcinoma. The Salem VAMC referred Henahan to the Durham
VAMC for surgery, and on January 5, 2012, Dr. Erin McNamara,
a resident surgeon, saw Henahan at the Durham VAMC.
complaint alleges that Henahan has an extensive medical
history of "diabetes mellitus type II with neuropathy,
hypertension, respiratory distress, hepatitis C, kidney
disease, anxiety disorder, post-traumatic stress disorder,
and mood disorder, all of which mitigated against a
significant surgery." Id. ¶ 29. Henahan
did not receive any treatment for his prostate cancer between
August of 2011 and February of 2012.
February 8, 2012, an MRI performed on Henahan revealed
"no evidence of extracapsular extension of the disease
and no significant lymphadenopathy." Id. ¶
33. Dr. Stephen Freedland at the Durham VAMC evaluated
Henahan and recommended that Henahan proceed with a radical
prostatectomy. Dr. Freedland was undertaking a clinical study
on radical prostatectomy at the time.
February 15, 2012, Dr. Freedland and Dr. McNamara, a resident
surgeon, performed a radical prostatectomy with
"extended bilateral pelvic lymphadenectomy" on
Henahan at the Durham VAMC. Id. ¶ 35. During
the surgery, Dr. Freedland and Dr. McNamara placed a surgical
clip across Henahan's right ureter, and Henahan
experienced extensive blood loss. The next day, Henahan was
"profoundly hypoxic with fluid overload, liver
dysfunction, renal failure, cardiopulmonary insufficiency!;,
] and a distended abdomen." Id. ¶ 38. He
subsequently required a blood transfusion.
the course of several days, Henahan's urine output
declined and his serum creatinine levels increased,
indicating a urine leak and kidney complications. A renal
ultrasound also revealed hydonephrosis. On February 22, 2012,
medical providers at the Durham VAMC removed Henahan's
drain, placed a stitch at the drain site, and discharged him.
the course of several months, Henahan continued to suffer
from abdominal pain and complications. On June 12, 2012, an
antegrade urogram revealed that Henahan's right ureter
was obstructed. On July 23, 2012, he underwent a right
ureteral reconstruction with "ileal ureter, cystoscopy
with dilation of the bladder neck contracture, and
appendectomy." Id. ¶ 63. Henahan remained
hospitalized for a week. After his discharge, he had to
return to the emergency department on multiple occasions
because of catheter difficulties and infections. On August 7,
2012, Henahan was also diagnosed with
"vancomycin-resistant enterococci." Id.
October of 2012, a cystoscopy performed on Henahan revealed
bladder neck closure with a "very dense and hard"
contracture. Id. ¶ 82. On October 29, 2012,
Henahan underwent a "transurethral resection" of
his bladder neck. Id. ¶ 84. He continues to be
catheter-dependent and suffers from pain, infection,
incontinence, mental distress, and associated illnesses. He
also will require future medical treatment for his
January 11, 2013, Henahan filed an administrative claim,
through an executed Standard Form 95, with the Department of
Veterans Affairs (the "DVA"). In that claim,
Henahan explained that he had undergone a radical
prostatectomy at the Durham VAMC. He then alleged that Drs.
Freedland and McNamara failed to appropriately perform his
surgery. Specifically Henahan claimed that they violated
their standard of care by: (1) failing to take proper
precautions in his care; (2) placing the surgical clip across
his right ureter; and (3) failing to identify the surgical
clip's improper location and remove it before closure of
the surgical site. In addition, he alleged that the employees
at Durham VAMC failed to timely and properly assess,
identify, and treat his condition. He sought compensation for
his injuries in the amount of $2, 000, 000.00.
April of 2013 and December of 2013, Henahan's counsel and
the DVA discussed Henahan's claim and settlement options.
These letters provided additional information as to the
circumstances surrounding Henahan's surgery and the
"investigation, diagnosis, and treatment of his
obstruction and urine leak." Ex. 3 to Def s Mot. to
Dismiss, Docket No. 4-3. In a letter dated May 20, 2013,
Henahan's counsel reiterated that the primary source of
Henahan's injuries was the "damage to his ureter
during the course of a certain surgical procedure at the
Durham facility." Ex. 4 to Def s Mot. to Dismiss, Docket
No. 4-4. In a letter dated September 13, 2013, the DVA stated
that it completed its investigation into Henahan's
administrative claim, in which Henahan alleged that "VA
healthcare providers at the Durham [VAMC] negligently placed
a clip across his right ureter during his retropubic
prostatectomy, " and that "VA healthcare providers
negligently failed to timely and properly identify and treat
Mr. Henahan's condition." Ex. 5 to Def s Mot. to
Dismiss, Docket No. 4-5. In that letter, the DVA proposed a
settlement amount and invited Henahan to provide a
counter-offer, if he believed that his claim was worth more.
The DVA indicated that, to date, Henahan had not provided a
theory of the case that warranted a higher settlement amount.
On October 24, 2013, Henahan's counsel rejected the
DVA's offer. In support of the ...