Clutter-Johnson v. United States

242 F. Supp. 3d 477, 2017 WL 1017602, 2017 U.S. Dist. LEXIS 35458
CourtDistrict Court, S.D. West Virginia
DecidedMarch 13, 2017
DocketCivil Action No. 1:16-04041
StatusPublished
Cited by2 cases

This text of 242 F. Supp. 3d 477 (Clutter-Johnson v. United States) is published on Counsel Stack Legal Research, covering District Court, S.D. West Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clutter-Johnson v. United States, 242 F. Supp. 3d 477, 2017 WL 1017602, 2017 U.S. Dist. LEXIS 35458 (S.D.W. Va. 2017).

Opinion

MEMORANDUM OPINION AND ORDER

David A. Faber, Senior United States District Judge

I. INTRODUCTION

This is a medical malpractice case filed against the United States by Plaintiff Melissa Clutter-Johnson under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. Plaintiffs case falls into two parts: First, she claims that doctors, for whom the United States was responsible, negligently inserted a Mirena® intrauterine device (“IUD”) on September 29, 2009, that resulted in her becoming pregnant with twins in September 2012. The parties agree that this is a claim for wrongful pregnancy as opposed to wrongful birth. Plaintiff also maintains that she was dam[479]*479aged by the failure of her doctors to locate and remove the IUD during her delivery by Cesarean section of twin daughters on May 10, 2013, and during further medical treatment and surgeries that resulted from failure to remove the IUD.

The United States has moved for dismissal of the wrongful pregnancy count under Rule 12 of the Federal Rules of Civil Procedure or, in the alternative, for summary judgment under Rule 56. The United States contends that Plaintiffs wrongful pregnancy claim is barred by the applicable statute of limitations, 28 U.S.C. § 2401(b). The United States agrees .that the remaining claim is not time-barred.

For the reasons discussed below, the motion for summary judgment is granted with regard to the claim for wrongful birth.

II. FACTUAL BACKGROUND

Plaintiff, Melissa Clutter-Johnson, had a Mirena® IUD implanted1 on September 28, 2009 as a means of birth control. See Doc. No. 1. The procedure took place at Community Health Systems, Inc., d/b/a Access Health-OB-GYN (“Access Health”), a federally-funded medical facility in Beckley, West Virginia. Id.' When properly placed, the IUD prevents pregnancy for five years. According to Plaintiff, a nurse twice attempted to insert the IUD. After the nurse was unsuccessful, Dr. Marcia A. Khalil and/or another nurse then inserted the IUD. Id.

In September 2012, three years after the placement of the IUD, Plaintiff became pregnant with twin daughters. Id. She returned to Access Health on October 24, 2012, where Dr. Gina Jereza-Harris attempted to remove the IUD. Dr. Jereza-Harris was unsuccessful and informed Plaintiff that if the IUD were not removed, then Plaintiff faced a 50% risk of pregnancy loss in the second trimester. Id. On November 14, 2012, Plaintiff received an MRI at Webster County Memorial Hospital and had a consultation with Dr. David Chaffin' at Cabell Huntington Hospital on Dr. Jereza-Harris’ referral. Id. Dr. Chaf-fin determined that the IUD was not embedded and, as a result, might become dislodged on its own. Id. Specifically, Dr. Chaffin’s consultation notes from the November 14, 2012, appointment contain the following statement:

The location of the IUD entirely within the cervical canal, associated with the extreme difficulty with attempts at- removal (breaking strings twice) leads me to conclude that the IUD was placed ONLY within the canal initially and that the arms of the IUD had no opportunity to extend. Now, attempts at removal result[ ] in the arms extending and preventing removal. However, this also suggests that the IUD has not become embedded and if cervical dilation occurs the IUD may actually fall out.

See Doc. No. 1. The remainder of Plaintiffs pregnancy was uneventful. Id. She gave birth to twin girls by Cesarean section on May 10, 2013. Id. Drs. Khalil and Jereza-Harris performed the cesarean section and again attempted to remove the IUD but were unable to do so. Id. A few days after birth, it became apparent that one of the twin children, G.E.J., suffers from congenital defects. Id. According to Plaintiff, G.E j. has Duane Syndrome, congenital scoliosis, ventricular septal defect, and cranial nerve defect. Id. She has had and will continue to require numerous surr geries and other medical treatment. Id. Her sister, I.A.J., appears to be a healthy child without birth defects. Id.

[480]*480Plaintiff herself has also undergone additional medical treatment related to the IUD. Id. A number of other doctors attempted to remove the IUD but, like the doctors at Access Health, were either unable to locate or to extricate the IUD. Id. In December 2014, a year and a half after Plaintiff gave birth to her twin daughters, she underwent surgery at Princeton Community Hospital and the IUD was removed successfully. Id. Plaintiff filed a claim before the appropriate administrator, the United States Department of Health and Human Services (“HHS”), on May 8, 2015, see Doc. No. 8, and thereby invoked her administrative remedies. Her administrative claim was denied on December 28, 2015. This civil action followed on April 28, 2016.

III. APPLICABLE LEGAL STANDARDS

A. Motion to Dismiss For Failure to State a Claim

“The purpose of a Rule 12(b)(6) motion is to test the [legal] sufficiency of a complaint; importantly, [a Rule 12(b)(6) motion] does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Edwards v. City of Goldsboro, 178 F.3d 281, 243-44 (4th Cir. 1999) (citations and internal quotation marks omitted). A Rule 12(b)(6) defense asserts that even if all the factual allegations in a complaint are true, they still remain insufficient to establish a cause of action. This court is also mindful that “[w]hether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim depends on whether the allegations in the complaint suffice to establish that ground, not on the nature of the ground in the abstract.” Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).

Related to this, Federal Rule of Civil Procedure 8(a)(2) requires that “a pleading ... contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Fed. R. Civ. P. 8(a)(2)). The purpose of Rule 8(a)(2) is to ensure that “the defendant [receives] fair notice of what the ... claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A plaintiff must allege “‘enough facts to state a claim to relief that is plausible on its face’ ” and “ ‘raise a right to relief above the speculative level.’” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

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Cite This Page — Counsel Stack

Bluebook (online)
242 F. Supp. 3d 477, 2017 WL 1017602, 2017 U.S. Dist. LEXIS 35458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clutter-johnson-v-united-states-wvsd-2017.