United States District Court, W.D. Virginia, Roanoke Division
DUSTIN P. BLANKENSHIP, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
Glen E. Conrad Chief United States District Judge
Dustin Blankenship, a veteran, filed this action against the
United States pursuant to the Federal Tort Claims Act, 28
U.S.C. § 1346(b) and 28 U.S.C. § 2671, et
seq, as well as under state law, 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 the
United States' motion to dismiss for lack of subject
matter jurisdiction over the plaintiffs claims of negligence
on the part of the surgical team, and various other pre-trial
motions. For the following reasons, the motion to dismiss
will be granted.
February 8, 2010, Blankenship underwent "left knee
anthroscopy with medial meniscus repair and anterior cruciate
ligament reconstruction with bone-patella-bone
autograph" at SVAMC. Compl. ¶ 7. The surgery began
at 2:27 p.m. and concluded at 11:45 p.m., for a total of nine
hours and eighteen minutes. The complaint alleges that the
normal time for this type of surgery generally does not
exceed two hours. As a result of the alleged negligence that
occurred during the surgery, Blankenship suffered severe and
permanent injuries. See Id. ¶ 13.
December 4, 2014, and after exhausting his administrative
remedies, Blankenship filed suit against the surgeon, Dr.
Roberson, and the SVAMC surgical team. Blankenship alleges
that members of the SVAMC surgical team negligently failed to
supervise Roberson or otherwise breached their respective
duties of care. Compl. ¶ 25, 48-50. On May 22, 2015, the
court dismissed Blankenship's claims as to Roberson. The
court found it lacked jurisdiction under the Federal Tort
Claims Act ("FTCA") because Roberson was an
independent contractor. See Blankenship v. United
States. 111 F.Supp.3d 745, 753 (W.D. Va. 2015)
("[The FTCA] applies to only the negligence of United
States employees acting in the scope of their employment; it
does not apply to the negligence of independent contractors
providing services pursuant to contracts with the United
States."). The court also dismissed any claim against
the SVAMC surgical team to the extent Blankenship alleges
that the surgical team or hospital management failed to
properly oversee Roberson during Blankenship's surgery.
Id. at 750. Those supervisory actions, the court
stated, are '"embraced by the overarching
decision' to contract for Roberson's services in the
first place." Id., (quoting Williams v. United
States, 50 F.3d 299, 310 (4th Cir. 1995)).
court, however, retained subject matter jurisdiction over the
question of whether the SVAMC employees breached an
independent duty to Blankenship not related to the
surgical team's failure to supervise or control Roberson.
Id. at 750. On January 13, 2016, the court granted
in part and denied in part plaintiffs motion to compel and
enlarge discovery in relation to this question and the
question of whether the breach of that alleged independent
duty was the proximate cause of Blankenship's injuries.
The subsequent discovery produced expert opinions asserting
that the surgical nurses and assisting surgeon breached their
respective duties of care by not intervening appropriately.
The experts opined that the surgical team failed to
"alleviate the sources of known risk of injury present
during the surgery." Letter from Dr. James M. Farmer,
M.D., to Lenden Eakin, Dustin Blankenship (March 10, 2016)
[Farmer Letter]; see also Letter from Cathy T.
Rosenbaum, RN, to Lenden Eakin, Dustin Blankenship (August 6,
2015) [Rosenbaum Letter]. Specifically, the experts concluded
that the breaches of the standards of care occurred when the
surgical team neglected to inform Roberson of the risks
associated with keeping Blankenship in the leg clamp and
exposed to compression from the tourniquet for a prolonged
period of time. Additionally, the experts asserted that the
surgical team did not attempt to interrupt Roberson to
assuage these risks, nor did the surgical team alert
supervisors of Roberson's deficient performance. Farmer
Letter; Rosenbaum Letter; Dep. of Dr. Farmer 21-22; Dep. of
RN Rosenbaum 80. The expert testimony reveals, however, that
the only person with the ultimate decision making power and
responsibility to remove the leg clamp and the tourniquet was
Roberson. Dep. of Rosenbaum 68; Dep. of Dr. Farmer 26.
contract under which Roberson performed the surgery in
question states that the government "may evaluate the
quality of professional and administrative services provided
but retains no control over the medical, professional aspects
of services rendered." Contract between Department of
Veterans Affairs and LocumTenens.Com, LLC 12, Dkt. 16-3
[Roberson Contract]. The contract also vests Roberson with
the responsibility of ensuring that various medical and
safety regulations are being met. Id. (requiring
that Roberson perform "in accordance with established
principles and ethics of the medical profession" and
that Roberson would ensure that "JCAHO, Safety, AAMI,
OSHA, VA and other agency regulations are being met").
In fulfilling his contractual duties, Roberson was subject to
"professional or technical direction" only from the
SVAMC's Contracting Officer's Technical
Representative and the Chief of Service. Id.
12(b)(1) of the Federal Rules of Civil Procedure permits a
party to move for dismissal of an action for lack of subject
matter jurisdiction. The 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. 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. 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) (citations omitted).
claims arise under the Federal Tort Claims Act
("FTCA"). The FTCA constitutes an express waiver of
sovereign immunity and provides limited circumstances in
which the United States may be held liable for the negligence
of its employees. 28 U.S.C. § 1346(b)(1) (2012); see
McGhee v. United States, No. 7:13-cv-00123, 2014 WL
896748, at *2 (W.D. Va. Mar. 6, 2014). When the government is
performing a "discretionary function, " however,
the FTCA does not waive immunity. 28 U.S.C. § 2680(a).
This discretionary function exception applies when "(1)
the acts alleged to be negligent [are] discretionary, in that
they involve 'an element of judgment or choice' and
are not compelled by statute or regulation[, ] and (2) the
judgment or choice in question [is] grounded in
'considerations of public policy' or [is] susceptible
to policy analysis." Coulthurst v. United
States, 214 F.3d 106, 109 (2d Cir. 2000) (citing
United States v. Gaubert. 499 U.S. 315, 322-23
(1991), and Berkovitz v. United States, 486 U.S.
531, 536-37 (1988)); see Williams v. United States.
50 F.3d 299, 309 (4th Cir. 1995).
discretionary function exception applies, governmental
decisions are immune from liability, even if such decisions
are negligently made. Chaffin v. United States, 176
F.3d 1208, 1211 (9th Cir. 1999). A federal policy, however,
can remove an employee's actions from the scope of the
discretionary function exception. See Kennewick Irr.
Dist. v. United States, 880 F.2d 1018, 1026. A
government employee acts without discretion when the federal
policy embodies "a specific and
mandatory regulation or statute which creates clear
duties incumbent upon government actors." Id.
(emphasis in original).
case, the court previously dismissed Blankenship's claims
that are related to the supervision or oversight of Roberson.
Blankenship, 111 F.Supp.3d at 750
("Blankenship's negligent supervision claim, which
is premised on allegations that the SVAMC surgical team or
hospital management failed to properly oversee Roberson
during Blankenship's surgery, is likewise barred.").
As to the instant motion, the court continues to believe that
the surgical team's intervention, either by interrupting,
alerting superiors, or questioning Roberson's surgical
strategy, would amount to the supervision and oversight of
Roberson. Id; cf Williams, 50 F.3d at 310
(government's negligent inspection of an independent
contractor's work falls within the discretionary function
exception); Brandt v. United States, 443 F.Supp.2d
795, 798-99 (dismissing a claim of negligent supervision when
DVA employees allowed an independent contractor who did not
meet the contract requirements to perform an unfamiliar
procedure that resulted in the death of a patient);
Subrun v. United States. No. 10-1161 (JP), 2010 WL
3809856, at *4 (D.P.R. Sept. 28, 2010) (finding that the
Bureau of Prisons employees had discretion to determine when
to intervene in an altercation between prisoners). The SVAMC
had vested the power to direct Roberson's professional
services in the Contracting Officer's Technical
Representative and the Chief of Service-not the surgical
team. See Roberson Contract 12; see also United States v.
S.A. Empresa de Viacao Aerea Rio Grandense (VariR
Airlines), 467 U.S. 797, 819-820 (1984) ("When an
agency determines the extent to which it will supervise the
safety procedures of private individuals, it is exercising
discretionary regulatory authority of the most basic
kind."). The court believes that the decision as to
which individuals would supervise Roberson, and their
decision as to the extent of supervision, are grounded in
policy considerations and thus discretionary. See id;
Gibbons v. Fronton, 533 F.Supp. 2d. 499, 455-56
(S.D.N.Y. 2008) (negligent hiring and supervision claims
based on medical care provided by private company at DVA
facility barred by discretionary function exception because
decisions to contract with and supervise a private individual
were discretionary and "grounded in considerations of
public policy."). Moreover, plaintiff has failed to
identify a federal statute, regulation, or policy that would
have placed the supervision of Roberson outside the scope of
the discretionary function exception. Kennewick Irr.
Dist. v. United States, 880 F.2d 1018, 1026 (9th Cir.
1989) ("[A] ... standard operates to remove discretion
under the FTCA when it is embodied in a specific and
mandatory regulation or statute which creates clear
duties incumbent upon the governmental actors.")
(emphasis in original).
however, argues that the surgical team had an independent
duty to Blankenship to ensure that the standards of care, as
articulated by the Department of Veterans Affairs
("DVA") and general medical practice, were being
met. The duty to meet these standards, Blankenship contends,
is not discretionary and cannot be delegated. Therefore,