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Dosso v. Azar

United States District Court, N.D. West Virginia

July 9, 2019

ALEX M. AZAR, II, Secretary of Health and Human Services of the United States of America, and SHENANDOAH COMMUNITY HEALTH CENTER, Defendants.



         Now before the Court is an Amended Report and Recommendation (R&R) submitted by Magistrate Judge Trumble. ECF No. 14.

         Pursuant 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.

         On June 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 without prejudice.

         I. Standard of Review

         Pursuant 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).

         Pursuant 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.

         II. Background

         The 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.

         Since 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.

         The 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.

         III. Applicable Law

         The 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).

         In this case, the Plaintiff's allegations arise out of treatment he received in West Virginia. Therefore, under West Virginia law, to prevail on a claim ...

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