United States District Court, W.D. Virginia, Abingdon Division
MARIANNE M. ANDES ESTATE, ET AL., Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
Andes, Pro Se Plaintiff; Sara Bugbee Winn, Assistant United
States Attorney, Roanoke, Virginia, for United States.
OPINION AND ORDER
P. Jones United States District Judge
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.
Complaint alleges the following facts, which I must accept as
true for the purpose of deciding the Motion to
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
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
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.
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.
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.
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. 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.
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.
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
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
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