Bethel v. United States ex rel. Veterans Administration Medical Center

495 F. Supp. 2d 1121, 2007 U.S. Dist. LEXIS 49738
CourtDistrict Court, D. Colorado
DecidedJuly 10, 2007
DocketCivil Action No. 05-cv-01336-PSF-BNB
StatusPublished
Cited by1 cases

This text of 495 F. Supp. 2d 1121 (Bethel v. United States ex rel. Veterans Administration Medical Center) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bethel v. United States ex rel. Veterans Administration Medical Center, 495 F. Supp. 2d 1121, 2007 U.S. Dist. LEXIS 49738 (D. Colo. 2007).

Opinion

ORDER ON RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE ENTERED MARCH 22, 2007

FIGA, District Judge.

This matter is before the Court on Plaintiffs’ Motion to Amend Complaint (Dkt.# 135), filed on February 14, 2007. On March 22, 2007, the Magistrate Judge issued a Recommendation that the Motion to Amend be denied (Dkt.# 159). Plaintiffs timely filed Objections to the Recommendation on April 5, 2007 (Dkt.# 167). The Magistrate Judge’s Recommendation, which is dispositive of a claim, is reviewed de ' novo. 28 U.S.C. § 636(b)(1); F.R.Civ.P. 72(b). Having reviewed de novo the underlying motion to amend, the Recommendation, and the record, the Court enters the following Order.

I. BACKGROUND

Plaintiffs filed this . action on July 15, 2005, for.damages under the Federal Tort Claims Act (“FTCA”) arising out of injuries sustained by David Bethel while undergoing surgery at the Veterans Administration Medical Center (‘VAMC”) in Denver, Colorado, on September 10, 2003. See generally Compl. (Dkt.# 1). Plaintiffs initially brought, among others, a claim for medical negligence against Dr. Robin Slover, one of Bethel’s treating anesthesiologists during the surgery. Id., ¶¶ 52-56. This Court issued an Order on September 28, 2006, dismissing Dr. Slover [1123]*1123from the case upon finding that she was not a federal employee at the time of the alleged negligence (Dkt.# 95). Plaintiffs now seek to amend the Complaint to add a claim against the United States for “Negligent Credentialing and Privileging,” alleging in pertinent part as follows:

62. On September 10, 2003, the defendant permitted Dr. Robin Slover to provide medical and surgical anesthesia services at the VA Hospital to Mr. Be-thel, despite having been on notice before that date that Dr. Robin Slover was not competent to provide anesthesia services, and despite concerns that she might cause injury to a patient.
63. The Defendant failed to properly investigate the concerns regarding Dr. Slover’s competence.
64. The United States, through its employees and agents at the VA Hospital, all of whom were acting within the scope and course of their employment or within their authority as agents, were negligent in their care and treatment of Mr. Bethel including, but not limited to, the following:
a. Allowing Robin Slover, M.D. to maintain privileges allowing her to perform the surgical anesthesia on Mr. Bethel;
b. Failing to timely and appropriately investigate Robin Slover, M.D. upon learning of concerns regarding her competency and concerns regarding patient safety;
c. Failing to monitor, proctor, suspend and/or otherwise limit Robin Slover, M.D.’s performance of surgical anesthesia at the VA Hospital prior to September 10, 2003, the date of Plaintiffs surgery.

Pl.s’ Tendered Am. Compl. (Dkt.# 136), ¶¶ 62-64. The Magistrate Judge recommended that plaintiffs’ motion to amend be denied as futile because the negligent credentialing claim would be subject to dismissal for failure to exhaust administrative remedies. Rec. at 9 (citing Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir.1999)).

II. ANALYSIS

The FTCA constitutes a limited waiver of the federal government’s sovereign immunity from private suit. Trentadue v. United States, 397 F.3d 840, 852 (10th Cir.2005). A plaintiff who sues under the FTCA must comply with the statute’s notice requirements, which are jurisdictional, cannot be waived, and must be strictly construed. Id. (citation omitted). “The jurisdictional statute, 28 U.S.C. § 2675(a), requires that claims for damages against the government [first] be presented to the appropriate federal agency by filing (1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim.” Id. (citations omitted). The purpose of the notice requirement is to “ ‘allow the agency to expedite the claims procedure and avoid unnecessary litigation by providing a relatively informal nonjudicial resolution of the claim.’”' Id. (quoting Mellor v. United States, 484 F.Supp. 641, 642 (D.Utah 1978)). In accordance with that purpose, although a plaintiffs administrative claim “need not elaborate all possible causes of action or theories of liability,” it must provide notice of the “facts and circumstances” underlying the plaintiffs claims. Id. at 853.

In this case, plaintiffs’ administrative claim, which was submitted to the Department of Veterans Affairs on October 12, 2004, states:

This is a claim for medical malpractice arising from substandard medical care provided to David Bethel prior to his undergoing a scheduled surgical procedure on 09/10/03. On 09/10/08, David Bethel was scheduled to undergo a surgical procedure known as a fistulectomy [1124]*1124at the V.A. Hospital in Denver, Colorado. Mr. Bethel was taken to the O.R. by Anesthesia with a surgical resident in attendance. Mr. Bethel was administered 2 mg. of Versed at which time he became agitated and was having obvious trouble breathing.
A decision was made by Anesthesia to induce Mr. Bethel and intubate him. Mr. Bethel was then given induction I.V. sedatives and paralyzed. The anesthesia resident was unable to visualize Mr. Bethel’s vocal cords to place an endotra-cheal tube. The staff anesthesiologist was likewise unable to visualize the vocal cords and it was discovered that the endotracheal tube had been placed in the esophagus and was removed. A bollard laryngoscope was then placed, again without visualization of the vocal cords. At this point, Mr. Bethel’s SA02 did not measure on the monitor and the nurse holding Mr. Bethel’s wrist was unable to get a pulse. External chest compressions were begun and Mr. Bethel was administered epinephrine bicarb. Chest compressions were continued while a staff anesthesiologist again attempted to place an endotracheal tube. Again, the attempted placement of the endotracheal tube was unsuccessful. After approximately ten minutes of chest compressions and two doses of epinephrine and atropine, Mr. Bethel’s pulse and blood pressure returned. Anesthesia was still unable to place an endotracheal tube and asked for surgical assistance in establishing an airway. A surgeon then tried to place a guidewire through the trachea and out the mouth for placement of the endotracheal tube. This attempted surgical intervention was also unsuccessful. The senior ENT resident then entered the O.R. and assisted the surgeon in an emergency tracheotomy. During the failed attempts to place an endotracheal tube, Mr. Bethel suffered cardiac arrest and a significant hypoxic event lasting between 10 and 20 minutes. (See attached Operative Report, dated 9/10/03, and, Discharge Summary, dated 11/5/03)

Pis’ Mot. to Amend, Ex. 1. The above-described basis of plaintiffs’ administrative claim revolves entirely around the details of the alleged negligent treatment of Mr.

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Bethel v. US EX REL. VETERANS ADMIN. MEDICAL CENTER
495 F. Supp. 2d 1121 (D. Colorado, 2007)

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Bluebook (online)
495 F. Supp. 2d 1121, 2007 U.S. Dist. LEXIS 49738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bethel-v-united-states-ex-rel-veterans-administration-medical-center-cod-2007.