United States District Court, N.D. West Virginia
MEMORANDUM ORDER ADOPTING AMENDED REPORT AND
GROH CHIEF UNITED STATES DISTRICT JUDGE.
before the Court is an Amended Report and Recommendation
(R&R) submitted by Magistrate Judge Trumble. ECF No. 14.
to this Court's Local Rules and 28 U.S.C. §
1915(e)(2)(B), this action was referred to Magistrate Judge
Trumble for a preliminary review to determine whether the
Plaintiff's complaint sets forth any viable claims. ECF
No. 4. On May 14, 2019, Magistrate Judge Trumble issued his
R&R, recommending that the Court dismiss the
Plaintiff's complaint without prejudice and deny as moot
his application to proceed in forma pauperis. ECF
No. 7. The Plaintiff filed objections to that R&R on June
10, 2019. ECF No. 12. In light of the information provided
within those objections, the Court declined to adopt the
R&R and referred the matter back to Magistrate Judge
Trumble for submission of an amended R&R. ECF No. 13.
18, 2019, Magistrate Judge Trumble issued an amended R&R.
ECF No. 14. Therein, Magistrate Judge Trumble recommended
that the Plaintiff be afforded 90 days to file a screening
certificate of merit as required by West Virginia Code §
55-7B-6. If the Plaintiff failed to file the screening
certificate of merit within 90 days, Magistrate Judge Trumble
recommended that the Plaintiff's complaint be dismissed
Standard of Review
to 28 U.S.C. § 636(b)(1)(C), this Court is required to
conduct a de novo review of those portions of the
magistrate judge's findings to which objection is made.
However, this Court is not required to review, under a de
novo or any other standard, the factual or legal
conclusions of the magistrate judge to which no objections
are made. Thomas v. Arn, 474 U.S. 140, 150 (1985).
Failure to file objections in a timely manner constitutes a
waiver of de novo review and a plaintiff's right
to appeal this Court's order. 28 U.S.C. §
636(b)(1)(C); Snyder v. Ridenour, 889 F.2d 1363,
1366 (4th Cir. 1989); United States v. Schronce, 727
F.2d 91, 94 (4th Cir. 1984).
to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the
Federal Rules of Civil Procedure, objections to Magistrate
Judge Trumble's amended R&R were due within fourteen
days after being served with a copy of the same. The amended
R&R was sent to the Plaintiff by certified mail on June
18, 2019. ECF No. 14. The Plaintiff filed his objections on
July 1, 2019. ECF No. 14. Accordingly, the Court will review
the portions of the amended R&R to which the Plaintiff
objects de novo.
Plaintiff's complaint alleges medical malpractice under
the Federal Tort Claims Act (“FTCA”). ECF No. 1.
Specifically, the Plaintiff alleges that that Defendants were
negligent in connection with his medical care at the
Shenandoah Community Health Center (“SCH”).
Id. at 2.
2012, the Plaintiff has been “treated, followed, and
monitored” at the SCH, mostly for high blood pressure.
Id. at 5. On or about September 22, 2015, the
Plaintiff's treating physician referred him to a
specialist for “a total life-altering and potentially
life-threatening medical condition” he developed while
under the care of the Defendants. Id. The Plaintiff
alleges that his medical records showed “steadily
increasing and abnormal lab test results” two full
years before the Defendants informed the Plaintiff and
referred him to a specialist. Id. at 6.
Specifically, the Plaintiff claims that the records
demonstrated “visibly and distinguishably marked in
red, abnormal and progressively rising creatinine levels,
over a course of more than two years during which Defendants
said nothing and took no action until Plaintiff developed a
kidney disease.” ECF No. 12 at 5. The Plaintiff alleges
that his kidney disease was preventable but, due to the lack
of care, is now irreversible. Id.
Plaintiff alleges that the Defendants failure to inform him
of his abnormal test results was a breach of the
Defendants' duty of care to the Plaintiff. ECF No. 1 at
7. The Plaintiff further alleges that SCH medical staff was
not properly trained and/or supervised, and that the
Defendants negligently hired and retained “incompetent,
inexperienced, unqualified and/or inadequately trained
operators, administrators, employees, agents and
staff.” Id. at 8. As a result, the Plaintiff
claims he has suffered “serious and permanent personal
injuries, ” “has incurred medical expenses and
other damages, ” and “was forced to endure pain,
suffering, and mental anguish.” Id. at 10. On
this basis, the Plaintiff seeks monetary damages and any
other relief that the Court deems proper. Id. at 11.
FTCA creates a legal remedy for monetary damages for
“personal injury or death caused by the negligent or
wrongful act or omission” of a federal employee acting
within the scope of his employment “if 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, the FTCA
does not create a new cause of action, but rather
“permits the United States to be held liable in tort in
the same respect as a private person would be liable under
the law of the place where the act occurred.” Edina
v. United States, 259 F.3d 220, 223 (4th Cir. 2001).
case, the Plaintiff's allegations arise out of treatment
he received in West Virginia. Therefore, under West Virginia
law, to prevail on a claim ...