United States District Court, E.D. Virginia, Richmond Division
A. Gibney, Jr. United States Distriqt Judge
se plaintiff, Glenn Miller, filed a complaint under the
Federal Tort Claims Act ("FTCA"),  alleging that
staff at the Hunter Holmes McGuire Medical Center
("VAMC") negligently punctured his heart while
implanting a defibrillator. The defendant has moved to
dismiss, or in the alternative, for summary judgment.
Essentially, the defendant argues that Miller has not
identified an expert witness to support his claim as required
by Virginia law. VAMC points out that federal law requires
Miller to comply with Virginia's negligence rules;
otherwise, this Court lacks jurisdiction over his case.
Because the Court lacks subject matter jurisdiction, the
Court grants the defendant's motion to dismiss. The
Court, however, will allow Miller to obtain the required
expert opinion and amend his complaint certifying that he has
experiencing two cardiac arrests, Miller underwent surgery at
VAMC on July 16, 2015 to implant a defibrillator. During the
surgery, as VAMC staff inserted the defibrillator "lead,
" the lead punctured Miller's heart. (Compl., at 6.)
The puncture caused heavy bleeding, and the doctors rushed
him into emergency open-heart surgery. Fortunately, VAMC
staff repaired the puncture to Miller's heart and stopped
the bleeding. The puncture, however, caused Miller a
prolonged recovery, as well as work- and family-related
filed his complaint under the FTCA, claiming that VAMC staff
acted negligently in implanting his defibrillator, and
requesting $2.5 million in damages. The defendant moved to
dismiss, or in the alternative, for summary
government, the United States enjoys sovereign immunity
unless it consents to a suit. United States v.
Sherwood, 312 U.S. 584, 586 (1941). "[T]he terms of
its consent to be sued in any court define that court's
jurisdiction to entertain the suit." Id. Courts
should "strictly construe" alleged waivers of
sovereign immunity "in favor of the sovereign."
Lane v. Pena, 518 U.S. 187, 192(1996).
the United States does waive its sovereign immunity,
plaintiffs "must comply with the terms and conditions of
the waiver or their suits are barred." James v.
United States, 143 F.Supp.3d 392, 396 (E.D. Va. 2015).
Through the FTCA, the United States waived sovereign immunity
for certain personal injury claims. Id.
Specifically, a plaintiff may bring tort claims against the
United States only when "a private person would be
liable to the claimant in accordance with the law of the
place where the act or omission occurred." 28 U.S.C.
§ 1346(b)(1). Thus, state law determines the federal
government's liability under the FTCA. Baxter v.
United States, No. 1:15-cv-633, 2016 WL 3618363, at *3
(E.D. Va. July 6, 2016). In this case, the relevant act or
omission occurred in Virginia, so the law of Virginia, and
specifically the Virginia Medical Malpractice Act
("VMMA"), governs liability. Sowers v. United
States, 141 F.Supp.3d 471, 476-477 (E.D. Va. 2015).
VMMA says that to file a medical malpractice action in
Virginia, a plaintiff must obtain an expert opinion stating
that his medical care "deviated from the applicable
standard of care and the deviation was a proximate cause of
the injuries claimed." Va. Code Ann. § 8.01-20.1.
If a plaintiff does not obtain such an expert opinion prior
to serving process on the defendant, the Court may dismiss
the case. Parker v. United States, 475 F.Supp.2d
594, 596 (E.D. Va. 2007), affd, 251 Fed.Appx. 818
(4th Cir. 2007). Furthermore, a defendant may request a
certification form affirming that the plaintiff obtained the
necessary expert opinion before serving his complaint, and
the plaintiff must fulfill the request within ten business
days. Va. Code Ann. §8.01-20.1.
statute does not require expert certification when "the
alleged act of negligence clearly lies within the range of
the jury's common knowledge and experience." Va.
Code Ann. § 8.01-20.1. This exception, however, only
applies in "rare instances, " because normally the
facts in a medical malpractice claim require more than common
knowledge and experience to understand. Parker, 475
F.Supp.2d at 597 (citing Beverly Enterprises-Virginia v.
Nichols, 441 S.E.2d 1, 3 (1994)). More often than not, a
plaintiffs claim rests on professional medical judgment, so
the lawsuit requires expert testimony to resolve it.
case, the complaint does not indicate that Miller obtained an
expert opinion in compliance with the VMMA. After Miller
served the complaint, and pursuant to the VMMA, the defendant
sent written notice to Miller on July 6, 2017, requesting a
certification form for his expert
opinion. According to the defendant, the parties
remained in contact for two weeks, and Miller seemed to say
he would provide the expert certification. Miller instead
sent medical records to the defendant, which did not include
an expert certification. The Court and the defendant to date
have not received a written expert certification from the
plaintiff. The VMMA provided Miller with ten business days to
comply with the defendant's request; those ten business
days have elapsed many times over. Va. Code Ann. §
case does not qualify as one of the "rare
instances" requiring no expert certification.
Parker, 475 F.Supp.2d at 597. Miller alleges that
VAMC doctors negligently implanted a defibrillator in his
body. Laymen do not know the correct procedures and standard
of care for such a surgery from their "common knowledge
and experience, " and clearly would require professional
medical judgment to decide the case. Id.
the United States waived sovereign immunity under the FTCA
only to the extent a tort claim could advance under
applicable state law. Virginia law requires a plaintiff in a
medical malpractice suit to obtain an expert opinion prior to
serving the defendant, and Miller has not certified that he
obtained such an opinion. Because the United States retains
its sovereign immunity, the Court does not have subject
matter jurisdiction over this case. The Court therefore
grants the defendant's motion to dismiss. Nevertheless,
the Court will allow the plaintiff thirty days to amend his
complaint to certify that he has obtained an expert opinion.