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Andes v. United States

United States District Court, W.D. Virginia, Abingdon Division

August 5, 2019


          Roy L. Andes, Pro Se Plaintiff; Sara Bugbee Winn, Assistant United States Attorney, Roanoke, Virginia, for United States.


          James P. Jones United States District Judge

         In this civil action under the Federal Tort Claims Act, a pro se plaintiff alleges that a doctor and two technologists employed by the U.S. Department of Veterans Affairs (“VA”) committed medical malpractice while treating his wife at VA facilities in Virginia and Tennessee. The government has moved to dismiss the Complaint because the plaintiff failed to file a certificate of good faith, as required by Tennessee law governing medical malpractice claims. For the reasons that follow, I will partially grant the Motion to Dismiss and dismiss the claim regarding alleged malpractice in Tennessee. However, the claim regarding alleged malpractice in Virginia will not be dismissed.


         The Complaint alleges the following facts, which I must accept as true for the purpose of deciding the Motion to Dismiss.[1]

         On June 10, 2016, Marianne M. Andes had an appointment with Dr. Lillian Burke at the VA's Community Based Outpatient Clinic (“CBOC”) in Bristol, Virginia. Roy L. Andes, Mrs. Andes' husband and a plaintiff in this case, also attended the appointment, which was Mrs. Andes' first with Dr. Burke. During the appointment, Dr. Burke reviewed Mrs. Andes' general health issues, which included high blood pressure, diabetes, and stage four kidney disease.

         On July 8, 2016, Mrs. Andes had a second appointment with Dr. Burke at the Bristol CBOC, which Mr. Andes also attended. At the start of the appointment, Dr. Burke stated that she wanted to order an MRI scan for Mrs. Andes. Mr. Andes asked Dr. Burke whether the MRI scan would be with or without contrast dye, and Dr. Burke responded that it would be done both with and without the dye. Mr. and Mrs. Andes both informed Dr. Burke that Mrs. Andes could not have the scan with contrast dye because of her age and health issues, particularly her kidney disease. However, Dr. Burke stated that using contrast dye would not pose any risk. Mr. Andes asked Mrs. Andes about undergoing the MRI scan without contrast dye, to which Mrs. Andes agreed. Mr. Andes then told Dr. Burke that they would proceed with the scan, but without contrast dye. Dr. Burke did not respond verbally, but to Mr. Andes, she seemed to agree.

         On July 13, 2016, Mr. Andes received a letter from Dr. Burke with results from lab work done for Mrs. Andes on July 8. In the letter, Dr. Burke stated that Mrs. Andes should see a kidney specialist and that she had arranged for Mrs. Andes to have an ultrasound of her kidneys. Mr. Andes alleges that Dr. Burke was aware of Mrs. Andes' stage four kidney disease at the time of the lab results and letter.

         Mrs. and Mr. Andes went to the James H. Quillen Veterans Affairs Medical Center (“the VAMC”), located in Johnson City, Tennessee, on August 22, 2016, for Mrs. Andes' MRI scan. During the procedure, an MRI technologist, Kristi Street, approached Mr. Andes in the waiting room and told him that Dr. Chris Payne wanted to speak with him. Dr. Payne told Mr. Andes, “[W]e have made a terrible mistake - We have put something in your wife's body that will stay there for the rest of her life.” Compl. 6, ECF No. 2. Mr. Andes asked how this had happened, and Dr. Payne told him that they had not been able to find Mrs. Andes' records. Dr. Payne told them that the contrast dye would bind to Mrs. Andes' organs and cells in a short amount of time but that after two years, her risk of developing nephrogenic systemic fibrosis would be slight, and VA would pay for her to see a dermatologist and nephrologist for two years.

         Shortly after the MRI scan, Mr. and Mrs. Andes received a letter showing that the scan had been done with and without contrast dye, and the contrast media was gadolinium. Dr. Burke also called Mrs. Andes and stated, among other things, “I probably should not have ordered the contrast, but I didn't know the VA's protocol.” Compl. Attach. 3, at 4, ECF No. 2-3.

         Within two weeks of the MRI scan, Mrs. Andes began having pain in her head and body, her skin turned red and was itchy and burning, and her body began to take on fluids and swell. Mr. Andes took her to the emergency room at the VAMC on September 6, 2016, but they did not have a room for her, and Mr. and Mrs. Andes went home that day. On September 8, they returned for an appointment with Dr. David Joseph, a nephrologist.[2] During the appointment, Mrs. Andes had a possible heart attack. Dr. Joseph admitted her, and between September 8 and September 14, doctors at the VAMC treated her for fluid retention, removing 40 to 50 pounds of excess fluid. She also developed congestive heart failure during this time. Mrs. Andes returned home with Mr. Andes on or around September 14, and from that time, Mr. Andes worked with Dr. Joseph to manage her symptoms and medications.

         On October 25, 2016, Mr. Andes requested copies of all of Mrs. Andes' medical records. Among these records, Mr. Andes received a copy of a work order that Dr. Burke had entered on July 8, after the appointment with Mrs. Andes. The work order requested an MRI scan with and without contrast dye. The records also included a MRI screening questionnaire that Mrs. Andes had completed on the day of the MRI scan. On the questionnaire, Mrs. Andes had indicated that she had kidney disease and allergies to contrast media. Kristi Street, the MRI technologist working with Mrs. Andes, had signed the form, attesting that she had reviewed it with Mrs. Andes.

         By March of 2017, Mrs. Andes' health was deteriorating rapidly. She was admitted to a local hospital on March 20, and on March 22, doctors advised Mr. Andes that they could not do anything more for her. Mrs. Andes passed away on March 23, 2017.

         Mr. Andes, proceeding pro se as the spouse and personal representative of the Estate of Marianne M. Andes, filed the present Complaint against the United States under the Federal Tort Claims Act (“FTCA”). He alleges that Dr. Burke was negligent in ordering the MRI scan with contrast dye in light of her knowledge of Mrs. Andes' kidney disease, and that MRI technologists Krista Street and Kayla Rosenbaum were negligent in conducting the procedure with contrast dye in light of Mrs. Andes' responses to the MRI screening questionnaire and without obtaining Mrs. Andes' informed consent to administering the contrast dye. Mr. Andes also alleges that Dr. Burke and registered nurse Beverly Chulik created false medical records to minimize or cover up their conduct. The United States has moved to dismiss the Complaint, arguing that Mr. Andes has not satisfied the requirements for medical malpractice actions under Tennessee law. The Motion to Dismiss is ripe for decision.[3]


         Federal courts do not have jurisdiction over actions against the United States unless Congress has expressly waived the United States' sovereign immunity. See United States v. Sherwood, 312 U.S. 584, 586-87 (1941). The FTCA waives the United States' sovereign immunity and makes the government liable for tort claims “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. The government's liability is to be determined “in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). Thus, “[t]he statute permits the United States to be held ...

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