United States District Court, S.D. West Virginia, Beckley Division
GEORGE W. JAMES, Individually and as Administrator of the Estate of Sheri L. James, Deceased, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER
C. BERGER UNITED STATES DISTRICT JUDGE
Court has reviewed the Defendant United States of
America's Motion to Dismiss, or, in the Alternative, for
Summary Judgment (Document 5) and supporting memorandum
(Document 6), the Plaintiff's Response to Defendant
United States of America's Motion to Dismiss, or, in the
Alternative, for Summary Judgment (Document 8), and the
Reply Memorandum in Support of Defendant United States of
America's Motion to Dismiss and/or for Summary
Judgment (Document 9). For the reasons stated herein,
the Court finds that the motion should be granted.
George W. James brought this action in his capacity as
Administrator of the Estate of his late wife, Sheri L. James.
Ms. James was a patient at Access Health, a federally-funded
facility in Beckley, West Virginia. She presented to her
doctor, Dr. Johnny Walker, on October 23, 2015, with a cyst
on her chest. On October 26, 2015, she returned and reported
to Dr. Walker that the cyst was worse. On October 28, 2015,
she returned and reported no improvement. She returned the
next day, and Dr. Walker noted that the infection appeared to
be resolving. He advised that she should remain on
antibiotics (which he had begun prescribing at her first
visit) and present to the ER if her symptoms acutely worsen.
James's condition worsened in the next days, with fever,
nausea, and vomiting. She presented at the Appalachian
Regional Healthcare, Inc. Emergency Department on November 1,
2015. An ER doctor ordered several injections and
prescriptions, drained the cyst, packed the wound, and
discharged Ms. James with a prescription. The next day, she
called Access Health. The person she spoke with documented
that she “was in ER BARH over weekend with cyst on
chest. She is still sick. Wanted to know if can get something
for upset belly.” (Compl. at ¶ 24) (Document 1.) A
nurse spoke with Ms. James and informed her that she would
obtain records and speak with the doctor. Dr. Amy Dowdy
prescribed Promethazine HCL 35 mg without requesting that Ms.
James come in for a visit or speaking directly to Ms. James.
Ms. James returned to the ER on November 3, 2015, where she
was diagnosed with “severe septic shock; increased LFTs
secondary to shock liver; acute renal failure with severe
metabolic acidosis; hyperkalemia and diarrhea.”
(Id. at ¶ 30.) She was transferred to West
Virginia University Hospital on November 4, and died on
Plaintiff asserts that Dr. Dowdy breached the standard of
care in her treatment of Ms. James, resulting in Ms.
James's death. The Plaintiff further asserts that Access
Health is vicariously liable for the negligence of Dr. Dowdy
and other employees.
Plaintiff filed the complaint on November 1, 2017. His
administrative tort claim was filed with the Department of
Health and Human Services (HHS) on November 14, 2016. HHS
sent a final denial letter to Plaintiff's counsel on
March 23, 2017, with a return receipt confirming that the
letter was delivered on March 27, 2017. The Plaintiff sent a
notice of claim and certificate of merit to Dr. Dowdy, in
compliance with West Virginia law, on November 4, 2016.
Because the Court has considered the limited documents
submitted related to the statute of limitations, the Court
considers the United States' motion as a motion for
well-established standard in consideration of a motion for
summary judgment is that “[t]he court shall grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a)-(c);
see also Hunt v. Cromartie, 526 U.S. 541, 549
(1999); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247 (1986); Hoschar v. Appalachian Power Co.,
739 F.3d 163, 169 (4th Cir. 2014). A “material
fact” is a fact that could affect the outcome of the
case. Anderson, 477 U.S. at 248; News &
Observer Publ'g Co. v. Raleigh-Durham Airport Auth.,
597 F.3d 570, 576 (4th Cir. 2010). A “genuine
issue” concerning a material fact exists when the
evidence is sufficient to allow a reasonable jury to return a
verdict in the nonmoving party's favor. FDIC v.
Cashion, 720 F.3d 169, 180 (4th Cir. 2013); News
& Observer, 597 F.3d at 576.
moving party bears the burden of showing that there is no
genuine issue of material fact, and that it is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex
Corp., 477 U.S. at 322-23. When determining whether
summary judgment is appropriate, a court must view all of the
factual evidence, and any reasonable inferences to be drawn
therefrom, in the light most favorable to the nonmoving
party. Hoschar, 739 F.3d at 169. However, the
non-moving party must offer some “concrete evidence
from which a reasonable juror could return a verdict in his
favor.” Anderson, 477 U.S. at 256. “At
the summary judgment stage, the non-moving party must come
forward with more than ‘mere speculation or the
building of one inference upon another' to resist
dismissal of the action.” Perry v. Kappos,
No.11-1476, 2012 WL 2130908, at *3 (4th Cir. June 13, 2012)
(unpublished decision) (quoting Beale v. Hardy, 769
F.2d 213, 214 (4th Cir. 1985)).
considering a motion for summary judgment, the court will not
“weigh the evidence and determine the truth of the
matter, ” Anderson, 477 U.S. at 249, nor will
it make determinations of credibility. N. Am. Precast,
Inc. v. Gen. Cas. Co. of Wis., 2008 WL 906334, *3 (S.D.
W.Va. Mar. 31, 2008) (Copenhaver, J.) (citing Sosebee v.
Murphy, 797 F.2d 179, 182 (4th Cir. 1986). If disputes
over a material fact exist that “can be resolved only
by a finder of fact because they may reasonably be resolved
in favor of either party, ” summary judgment is
inappropriate. Anderson, 477 U.S. at 250. If,
however, the nonmoving party “fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, ” then summary judgment
should be granted because “a complete failure of proof
concerning an essential element . . . necessarily renders all
other facts immaterial.” Celotex, 477 U.S. at
United States argues that it is entitled to summary judgment
because the Plaintiff did not file this suit within six
months after receiving notice of HHS's final denial of
the administrative tort claim. The Plaintiff concedes that he
“filed the Complaint more than six months after
receiving a final denial letter from the Department of Health
and Human Services.” (Resp. at 2.) He argues that the
intent of the Federal Tort Claims Act (FTCA) was not to
constrict the period for filing under the circumstances
presented herein, and stresses that the delay in filing
related to pre-suit settlement negotiations.
FTCA requires that tort claims against the United States
first be presented to the appropriate federal agency before
suit may be initiated in federal court. 28 U.S.C. §