1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MANOLITO CASTILLO, Case No.: 19cv00200 JAH-RBB
12 Plaintiff, ORDER DENYING DEFENDANT’S 13 v. MOTION TO DISMISS [Doc. No. 62] 14 UNITED STATES OF AMERICA, 15 Defendant. 16 17 18 Pending before the Court is Defendant’s motion to dismiss for failure to establish 19 jurisdiction. Defendant contends Plaintiff’s action is jurisdictionally barred pursuant to the 20 discretionary function exception to the waiver of sovereign immunity under the Federal 21 Tort Claims Act (“FTCA”). The discretionary function exception precludes: 22 Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such 23 statute or regulation be valid, or based upon the exercise or performance or the 24 failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved 25 be abused. 26 28 U.S.C.A. § 2680(a). Application of the discretionary function exception requires a 27 two-step analysis. First, the Court must determine whether the challenged conduct 28 involves an element of judgment or choice. Berkovitz v. U.S., 486 U.S. 531, 536 (1988). 1 Soldano v. United States, 453 F.3d 1140, 1145 (9th Cir. 2006). If a “federal statute, 2 regulation, or policy specifically prescribes a course of action” to which the employee must 3 adhere, the first step of the analysis is not met, and the exception does not apply. Fang v. 4 United States, 140 F.3d 1238, 1241 (9th Cir. 1998) (quoting Berkovitz, 486 U.S. at 536). 5 If the conduct involves judgment or choice, the next step of the test requires the court to 6 determine whether the judgment or decision is “grounded in social, economic, and political 7 policy.” Soldano v. U.S., 453 F.3d 1140, 1145 (2006). The court looks to “the nature of 8 the conduct, rather than the status of the actor” in making this determination. United States 9 v. Gaubert, 499 U.S. 315, 322 (1991). The element is met if the nature of the conduct is 10 susceptible to policy analysis. Fang, 140 F.3d at 1241. The government has the burden to 11 demonstrate applicability of the discretionary function. Whisnant v. United States, 400 12 F.3d 1177, 1181 (9th Cir. 2005). 13 Defendant argues the discretionary function exception applies because the Veterans 14 Affairs (“VA”) San Diego Health Care System’s conduct in choosing to schedule 15 Plaintiff’s appointment up to 30 days after the “return to clinic” date satisfies both prongs 16 of the test. Defendant contends, there is no federal statute, policy, or regulation that 17 specifically mandates the manner in which the Department of Veterans Affairs (“DVA”) 18 must schedule follow-up appointments. Rather, Defendant maintains, the DVA 19 implemented a scheduling policy based on availability of appointments within specific time 20 parameters which permits schedulers to schedule appointments up to 30 days after the 21 health care provider’s return to clinic date without having to consult with a health care 22 provider. Defendant further maintains the DVA’s policy was driven by how to allocate 23 limited resources to provide health care to large numbers of patients. Defendant argues, 24 even if Plaintiff could show these procedures and resource allocation choices were 25 improper or negligent, such a showing would be irrelevant under the bar to suit for 26 discretionary acts. 27 28 1 Defendant maintains Dr. Therese Nguyen’s order did not require Plaintiff to return 2 to clinic on a specific day and the scheduler properly exercised her discretion in providing 3 Plaintiff an appointment up to 30 days after the return to clinic date. Defendant argues 4 Plaintiff’s action, which arises from his allegations that the VA did not schedule him for a 5 retina clinic appointment by April 29, 2016, is barred by the discretionary function 6 exception and, therefore, the Court should dismiss the action in its entirety and enter 7 judgment in favor of the United States. 8 Plaintiff argues the discretionary function exception does not apply in this case 9 because VA policy procedures prescribe a course of action for Dr. Nguyen to follow to 10 make sure that the VA schedulers followed her nondiscretionary order that Plaintiff return 11 for further examination by April 29, 2016. Relying on the testimony of Melissa Piroutek, 12 the VA clinical Section Chief, Plaintiff maintains the VA scheduling policy only gives the 13 schedulers discretion to book a return to clinic appointment up to 30 days after the clinically 14 indicated date ordered by the provider when the provider does not instruct “yes overbook” 15 in order to meet the clinically indicated date. Plaintiff maintains, according to the 16 testimony of Ms. Piroutek, the VA’s policies and procedures require a provider to either: 17 (1) specifically order that the patient return to clinic on a specified date and instruct the 18 scheduler to overbook if necessary to make the appointment, or (2) provide a “return to 19 clinic/”clinically indicated date” and check “yes overbook” on the order to instruct the 20 scheduler to overbook if necessary to meet that date, if she intends to have a patient return 21 to the clinic within 30 days. He contends his negligence claims are based on Dr. Nguyen’s 22 failure to follow the VA procedures to have him return by April 29, 2016. Plaintiff argues 23 the VA scheduler would have had no discretion to deviate from the time frame had Dr. 24 Nguyen acted within the standard of care by scheduling a return appointment for a specific 25 date or ordering an overbook. Plaintiff maintains Defendant’s entire immunity argument 26 depends on one provision in the VA scheduling policies and procedures that would not 27 have applied had Dr. Nguyen followed the other procedures to make sure Plaintiff returned 28 1 by April 29, 2016, for the examination and optical coherence tomography (“OCT”) she and 2 Dr. Ferreyra ordered. 3 In reply, Defendant contends Dr. Nguyen properly ordered a return to clinic visit for 4 one month without an overbook because she, as an optometrist, did not have the ability to 5 order an ophthalmology appointment without authorization from Dr. Ferreyra. Defendant 6 maintains Plaintiff asserts Dr. Ferreyra ordered him to return in 30 days for further 7 examination, an OCT and possible anti-VEGF treatment but, Defendant argues the record 8 does not show any such order from Dr. Ferreyra. Instead, Defendant maintains, Dr. 9 Ferreyra agreed with Dr. Nguyen’s plan and the evidence demonstrates Dr. Ferreyra did 10 not instruct Dr. Nguyen to overbook. Because Dr. Nguyen was not negligent and she was 11 unable to issue an overbook order, Defendant argues Plaintiff’s attempt to cast Dr. 12 Nguyen’s order as negligence must fail. Defendant further argues the additional provisions 13 of the VA policy regarding what a provider is required to do upon which Plaintiff relies do 14 not apply to Dr. Nguyen in the circumstance of this matter. 15 Additionally, Defendant contends the discretionary function exception applies 16 because, in this case, there was no policy or procedure which required specifically when 17 Plaintiff’s appointment should take place and the judgment that the scheduler exercised 18 was of the kind that the discretionary function exception was designed to protect. 19 Plaintiff contends it is Dr.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MANOLITO CASTILLO, Case No.: 19cv00200 JAH-RBB
12 Plaintiff, ORDER DENYING DEFENDANT’S 13 v. MOTION TO DISMISS [Doc. No. 62] 14 UNITED STATES OF AMERICA, 15 Defendant. 16 17 18 Pending before the Court is Defendant’s motion to dismiss for failure to establish 19 jurisdiction. Defendant contends Plaintiff’s action is jurisdictionally barred pursuant to the 20 discretionary function exception to the waiver of sovereign immunity under the Federal 21 Tort Claims Act (“FTCA”). The discretionary function exception precludes: 22 Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such 23 statute or regulation be valid, or based upon the exercise or performance or the 24 failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved 25 be abused. 26 28 U.S.C.A. § 2680(a). Application of the discretionary function exception requires a 27 two-step analysis. First, the Court must determine whether the challenged conduct 28 involves an element of judgment or choice. Berkovitz v. U.S., 486 U.S. 531, 536 (1988). 1 Soldano v. United States, 453 F.3d 1140, 1145 (9th Cir. 2006). If a “federal statute, 2 regulation, or policy specifically prescribes a course of action” to which the employee must 3 adhere, the first step of the analysis is not met, and the exception does not apply. Fang v. 4 United States, 140 F.3d 1238, 1241 (9th Cir. 1998) (quoting Berkovitz, 486 U.S. at 536). 5 If the conduct involves judgment or choice, the next step of the test requires the court to 6 determine whether the judgment or decision is “grounded in social, economic, and political 7 policy.” Soldano v. U.S., 453 F.3d 1140, 1145 (2006). The court looks to “the nature of 8 the conduct, rather than the status of the actor” in making this determination. United States 9 v. Gaubert, 499 U.S. 315, 322 (1991). The element is met if the nature of the conduct is 10 susceptible to policy analysis. Fang, 140 F.3d at 1241. The government has the burden to 11 demonstrate applicability of the discretionary function. Whisnant v. United States, 400 12 F.3d 1177, 1181 (9th Cir. 2005). 13 Defendant argues the discretionary function exception applies because the Veterans 14 Affairs (“VA”) San Diego Health Care System’s conduct in choosing to schedule 15 Plaintiff’s appointment up to 30 days after the “return to clinic” date satisfies both prongs 16 of the test. Defendant contends, there is no federal statute, policy, or regulation that 17 specifically mandates the manner in which the Department of Veterans Affairs (“DVA”) 18 must schedule follow-up appointments. Rather, Defendant maintains, the DVA 19 implemented a scheduling policy based on availability of appointments within specific time 20 parameters which permits schedulers to schedule appointments up to 30 days after the 21 health care provider’s return to clinic date without having to consult with a health care 22 provider. Defendant further maintains the DVA’s policy was driven by how to allocate 23 limited resources to provide health care to large numbers of patients. Defendant argues, 24 even if Plaintiff could show these procedures and resource allocation choices were 25 improper or negligent, such a showing would be irrelevant under the bar to suit for 26 discretionary acts. 27 28 1 Defendant maintains Dr. Therese Nguyen’s order did not require Plaintiff to return 2 to clinic on a specific day and the scheduler properly exercised her discretion in providing 3 Plaintiff an appointment up to 30 days after the return to clinic date. Defendant argues 4 Plaintiff’s action, which arises from his allegations that the VA did not schedule him for a 5 retina clinic appointment by April 29, 2016, is barred by the discretionary function 6 exception and, therefore, the Court should dismiss the action in its entirety and enter 7 judgment in favor of the United States. 8 Plaintiff argues the discretionary function exception does not apply in this case 9 because VA policy procedures prescribe a course of action for Dr. Nguyen to follow to 10 make sure that the VA schedulers followed her nondiscretionary order that Plaintiff return 11 for further examination by April 29, 2016. Relying on the testimony of Melissa Piroutek, 12 the VA clinical Section Chief, Plaintiff maintains the VA scheduling policy only gives the 13 schedulers discretion to book a return to clinic appointment up to 30 days after the clinically 14 indicated date ordered by the provider when the provider does not instruct “yes overbook” 15 in order to meet the clinically indicated date. Plaintiff maintains, according to the 16 testimony of Ms. Piroutek, the VA’s policies and procedures require a provider to either: 17 (1) specifically order that the patient return to clinic on a specified date and instruct the 18 scheduler to overbook if necessary to make the appointment, or (2) provide a “return to 19 clinic/”clinically indicated date” and check “yes overbook” on the order to instruct the 20 scheduler to overbook if necessary to meet that date, if she intends to have a patient return 21 to the clinic within 30 days. He contends his negligence claims are based on Dr. Nguyen’s 22 failure to follow the VA procedures to have him return by April 29, 2016. Plaintiff argues 23 the VA scheduler would have had no discretion to deviate from the time frame had Dr. 24 Nguyen acted within the standard of care by scheduling a return appointment for a specific 25 date or ordering an overbook. Plaintiff maintains Defendant’s entire immunity argument 26 depends on one provision in the VA scheduling policies and procedures that would not 27 have applied had Dr. Nguyen followed the other procedures to make sure Plaintiff returned 28 1 by April 29, 2016, for the examination and optical coherence tomography (“OCT”) she and 2 Dr. Ferreyra ordered. 3 In reply, Defendant contends Dr. Nguyen properly ordered a return to clinic visit for 4 one month without an overbook because she, as an optometrist, did not have the ability to 5 order an ophthalmology appointment without authorization from Dr. Ferreyra. Defendant 6 maintains Plaintiff asserts Dr. Ferreyra ordered him to return in 30 days for further 7 examination, an OCT and possible anti-VEGF treatment but, Defendant argues the record 8 does not show any such order from Dr. Ferreyra. Instead, Defendant maintains, Dr. 9 Ferreyra agreed with Dr. Nguyen’s plan and the evidence demonstrates Dr. Ferreyra did 10 not instruct Dr. Nguyen to overbook. Because Dr. Nguyen was not negligent and she was 11 unable to issue an overbook order, Defendant argues Plaintiff’s attempt to cast Dr. 12 Nguyen’s order as negligence must fail. Defendant further argues the additional provisions 13 of the VA policy regarding what a provider is required to do upon which Plaintiff relies do 14 not apply to Dr. Nguyen in the circumstance of this matter. 15 Additionally, Defendant contends the discretionary function exception applies 16 because, in this case, there was no policy or procedure which required specifically when 17 Plaintiff’s appointment should take place and the judgment that the scheduler exercised 18 was of the kind that the discretionary function exception was designed to protect. 19 Plaintiff contends it is Dr. Nguyen’s conduct in failing to use the VA procedure to 20 have him return by April 29, 2016, that fell below the standard of care and resulted in his 21 injuries. Dr. Nguyen testified that she was familiar with the “overbook” procedure and 22 utilized it to have Plaintiff seen on March 25, 2016, in optometry. TR 202:7-19; 202:24- 23 203:6 (Doc. No. 56). After her review of the OCT and photos during the March 25th 24 optometry visit with Plaintiff, Dr. Nguyen’s developed a plan to have Plaintiff return for 25 ophthalmology-retinal assessment within a month. TR 212: 1-5 (Doc. No. 56). She 26 testified that she was able to enter the order based on her plan but she was unable to 27 schedule appointments with ophthalmology so she consults and defers to ophthalmology 28 to make the appointments. TR 243:9-21 (Doc. No. 56). She further testified that if she 1 consults with ophthalmology and they tell her to overbook, she will do so. TR 204:4-8; 2 204:13-19; 212:6-7 (Doc. No. 56). Dr. Ferreyra did not indicate she should overbook. 3 Progress Notes, Joint Exh. 27. Based upon Dr. Ferreyra’s notes, Dr. Nguyen entered an 4 order on the VA computer system for Plaintiff to be seen by the ophthalmology clinical in 5 one month, and the order indicated “no” to overbook. TR 218:14-219:1; 222:8-13 (Doc. 6 No. 56); VA Appointment Log, Joint Exh. 14. 7 Dr. Nguyen’s testimony demonstrates she had the ability to put in an order for an 8 appointment with ophthalmology and utilized the computer system to do so following her 9 consultation with Dr. Ferreyra. Because she did not order an overbook, the scheduler could 10 schedule Plaintiff up to 30 calendar days after the return to clinic date. Outpatient 11 Scheduling Standard Operating Procedures, Joint Exh. 19. There is a procedure for 12 providers to follow if they would like a patient to be seen by the return to clinic date. TR 13 305:20-306:1 (Doc. No. 57). However, there is no rule, regulation or policy dictating when 14 a provider can or should overbook. Dr. Nguyen’s conduct of ordering Plaintiff’s visit to 15 ophthalmology by April 29, 2016, without an overbook, was based on her judgment and 16 she relied on the consultation as part of that decision. 17 However, the judgment used by Dr. Nguyen in determining whether to overbook so 18 Plaintiff could be seen no later than the return to clinic date was that as a medical 19 professional rather than based on governmental policy. The exercise of non-governmental 20 discretion including professional judgment in the administration of medical care by 21 government employees is not subject to the discretionary function exception. Fang 140 22 F.3d at 1242 (“[T]he United States is not immune from claims which challenge the actual 23 administration of medical care by its employees when the claims do not concern actions 24 which are the product of judgment driven by the consideration of competing policy-based 25 choices.”). 26 // 27 // 28 // 1 The Court finds the discretionary function exception does not bar Plaintiff's action. 2 || Accordingly, the motion to dismiss is DENIED. 3 |}DATED: May 31, 2022
5 4 NA. bd ynited States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28