Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gallegos v. Wood

United States District Court, D. New Mexico

August 25, 2017

TERESSA JANETTE GALLEGOS, Individually and as Personal Representative of the ESTATE OF JOSEPH ORAN VAN WINKLE, Deceased; and MARY ANN VAN WINKLE, Plaintiffs,
v.
MAUREEN WOOD, M.D., MEDICAL DOCTOR ASSOCIATES, LLC; and the UNITED STATES OF AMERICA, Defendants.

          Doug Perrin The Perrin Law Firm Santa Fe, New Mexico Attorney for Plaintiffs

          Melissa A. Brown Remo Gay Brown & Gay, P.C. Albuquerque, New Mexico Attorneys for Defendants Maureen Wood, M.D. and Medical Doctor Associates, LLC

          Damon P. Martinez United States Attorney Ruth Fuess Keegan Assistant United States Attorney Albuquerque, New Mexico Attorneys for Defendant United States of America

          MEMORANDUM OPINION AND ORDER [1]

THIS MATTER comes before the Court on (i) the Plaintiffs' Motion for Extension of Deadlines to Identify Expert Witnesses, filed July 14, 2016 (Doc. 142)(“Motion to Extend”); and (ii) Defendant United States of America's Motion to Dismiss for Lack of Subject Matter Jurisdiction Claims Based on a Pharmacists' [sic] Purported Failure to Follow VAMC Protocals [sic], filed September 23, 2016 (Doc. 167)(“Third MTD”). The Court held a hearing on January 25, 2017. The primary issues are: (i) whether the Court, under rule 16(b) of the Federal Rules of Civil Procedure, should extend the deadline for the Plaintiffs to designate testifying expert witnesses to August 3, 2016, and the deadline for the Defendants to designate such witnesses to September 6, 2016; and (ii)

         whether the Court, pursuant to rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, should dismiss any negligence claim that Defendant Maureen Wood, M.D. may assert against Defendant United States of America based on an allegation that an outpatient pharmacist failed to follow internal Veterans Administration Medical Center (“VA” or “VAMC”)[2] pharmacy protocols in filling prescriptions that Wood ordered for Joseph Oran Van Winkle[3] upon his discharge from the emergency department at the Raymond G. Murphy Veterans Affairs Medical Center in Albuquerque, New Mexico, on May 13, 2012. To resolve the second issue, the Court must determine: (i) whether Wood, as well as Plaintiffs Teressa Janette Gallegos and Mary Ann Van Winkle, have exhausted their administrative remedies as the Federal Tort Claims Act of 1946, 28 U.S.C. §§ 1346(b), 2671-2680 (“FTCA”), requires; and (ii) whether, if Wood and the Plaintiffs exhausted their administrative remedies, New Mexico law recognizes a negligence cause of action analogous to Wood's negligence claim such that the FTCA waives the United States' sovereign immunity from suit.

         The Court concludes, first, that there is good cause under rule 16(b) to grant a brief two-week extension for the parties to designate testifying expert witnesses. Thus, the Court grants the Motion to Extend. Second, as for the Third MTD, the Court concludes that neither Wood nor the Plaintiffs have exhausted their administrative remedies under the FTCA for Wood's claim that an outpatient pharmacist failed to comply with internal VA protocols in filling prescriptions that Wood ordered for J. Van Winkle. Consequently, the FTCA does not waive the United States' sovereign immunity, and the Court lacks subject-matter jurisdiction over the VA-protocol claim. Pursuant to rule 12(b)(1), therefore, the Court grants the Third MTD and dismisses the VA-protocol claim for lack of subject-matter jurisdiction. Because it lacks jurisdiction, the Court does not reach the issue whether there is a state-law cause-of-action analogue for Wood's negligence claim.

         FACTUAL BACKGROUND

         The Court takes its facts from the Plaintiff's First Amended Complaint for Wrongful Death Damages due to Medical Malpractice, filed June 30, 2014 (Doc. 41)(“2014 Complaint”), and the Letter from Doug Perrin to Department of Veteran Affairs Regarding Joseph Van Winkle and Ann Van Winkle (dated April 2, 2013), filed October 17, 2014 (Doc. 52-2)(“April 2 Letter”).[4] The Court accepts as true all non-conclusory factual statements in these sources.

         1. The Alleged Medical Malpractice.

         On May 7, 2012, J. Van Winkle sought treatment for abdominal pain at the Albuquerque VA's emergency department. See 2014 Complaint ¶ 3, at 2. Wood, an internal medicine physician, diagnosed J. Van Winkle with septic shock[5] and admitted him to the hospital's intensive care unit. See 2014 Complaint ¶ 4, at 2. Wood's medical notes state that she administered two antibiotics intravenously; J. Van Winkle never received either treatment, however, and pharmacy records indicate that at least one of the drugs was never ordered. See 2014 Complaint ¶ 12, at 4; April 2 Letter at 1.

         On May 8, 2012, two of J. Van Winkle's blood cultures tested positive for staphylococcus aureus.[6] See 2014 Complaint ¶ 6, at 2. The laboratory report included a list of antibiotics that could effectively treat staphylococcus aureus. See 2014 Complaint ¶ 6, at 2. Wood concluded, however, that the laboratory results were “false positive[s], ” and prescribed cefepime/maxipime[7] and cefazolin/ancef, [8] antibiotics which were not on the laboratory report's list and which are ineffective against staphylococcus aureus. See 2014 Complaint ¶ 6, at 2-3; April 2 letter at 2. According to her notes dated May 10, 2012, Wood intended to change the cefepime/maxipine prescription to clindamycin, [9] another antibiotic not listed in the laboratory report, but the switch “was never ordered nor administered.” 2014 Complaint ¶ 7, at 3. Moreover, cefazolin/ancef was not administered until May 13, 2012, five days after Wood prescribed it. See 2014 Complaint ¶ 7, at 3. In any event, clindamycin and cefazolin/ancef are ineffective against staphylococcus aureus. See 2014 Complaint ¶ 7, at 3.

         Two other individuals were involved in J. Van Winkle's care. See 2014 Complaint ¶¶ 8-9, at 3. An unnamed Albuquerque VA pharmacist or representative of the pharmacy department (the “Unnamed Pharmacist”) allegedly “accompanied Dr. Wood on her rounds of patients every day.” 2014 Complaint ¶ 8, at 3. Dr. Christopher Quintana, a physician serving as a postdoctoral fellow at the Albuquerque VA, assisted Wood in her treatment of J. Van Winkle. See 2014 Complaint ¶ 9, at 3. Quintana received notice from the laboratory that J. Van Winkle's urine, as well as his blood, had tested positive for staphylococcus aureus. See 2014 Complaint ¶ 9, at 3.

         The Albuquerque VA discharged J. Van Winkle from its intensive care unit on May 13, 2012. See 2014 Complaint ¶ 11, at 3. Upon J. Van Winkle's discharge, Wood prescribed a five-day oral regimen of ciprofloxacin[10] and cephalexin/keflex.[11] See April 2 Letter a 2. Wood incorrectly noted in her discharge summary that J. Van Winkle's “shock resolved on the fourth day of the hospital course.” 2014 Complaint ¶ 11, at 3. J. Van Winkle's condition continued to deteriorate, however, and, on June 5, 2012, he was admitted to Artesia General Hospital in Artesia, New Mexico, with dehydration and continued infection. See 2014 Complaint ¶ 13, at 4. J. Van Winkle's treating physician at that hospital, Dr. Jorge Abalos, then ordered him to return to the Albuquerque VA. See 2014 Complaint ¶ 13, at 4.

         On June 12, 2012, physicians at the Albuquerque VA diagnosed J. Van Winkle with severe right-sided infectious endocarditis.[12] See 2014 Complaint ¶ 14, at 4. The infection resulted in bacterial growth on one of J. Van Winkle's heart valves and severe damage to his circulatory system. See 2014 Complaint ¶ 14, at 4.

         On June 23, 2012, Albuquerque VA officials held a meeting with J. Van Winkle, his wife, and his daughter. See 2014 Complaint ¶ 15, at 4; April 2 Letter at 2. During the meeting, the Albuquerque VA informed the family that a panel reviewing J. Van Winkle's medical records had concluded that the oral antibiotics regimen that Woods prescribed was “not adequate or appropriate to treat [J. Van Winkle's] infection and that he should have been given intravenous antibiotics for four to six weeks.” 2014 Complaint ¶ 15, at 4. See April 2 Letter at 2. The panel further found that the growth on Van Winkle's heart valve had resulted from Wood's failure to provide J. Van Winkle with the appropriate antibiotics. See 2014 Complaint ¶ 15, at 4.

         By the time the meeting took place between J. Van Winkle's family and Albuquerque VA officials, J. Van Winkle's medical situation was “very dire.” April 2 Letter at 2. J. Van Winkle remained hospitalized at the Albuquerque VA until July 27, 2012. See April 2 Letter at 2. J. Van Winkle died on September 10, 2013. See 2014 Complaint ¶ 16, at 4. His daughter, Gallegos, is now the Personal Representative of his Estate. See 2014 Complaint ¶ 16, at 4.

         2. Administrative Correspondence.

         On April 2, 2013, the Plaintiffs mailed a “Tort Claim” letter to the Department of Veterans Affairs' Office of Regional Counsel. See April 2 Letter at 1. The letter describes J. Van Winkle's treatment at the Albuquerque VA, and the nature and extent of his injury, and includes a demand for $600, 000.00. See April 2 Letter at 1-3. The letter focuses on Wood's conduct, averring that “[w]hat should have been treated simply and effectively turned into a very complex, dangerous situation, as a result of the negligence of Dr. Wood in misdiagnosis[.]” April 2 Letter at 3. The letter also makes one reference to unidentified “multiple physicians who followed Mr. Van Winkle.” April 2 Letter at 2. The letter uses passive voice, however, to avoid attributing actions to specific individuals. See April 2 Letter at 2-3 (“Zosyn was never ordered . . . .”); id. (“Van Winkle was discharged . . . .”); id. (“Upon discharge, Mr. Van Winkle was given . . . .”). Finally, the letter includes a lengthy list of “witnesses, ” including J. Van Winkle's family and over one hundred medical providers. See April 2 letter at 4.

         The VA's Office of Regional Counsel replied to this initial claim in a letter dated June 19, 2013. See Letter from Melinda Frick to Doug Perrin Regarding Administrative Tort Claim (dated June 19, 2013), filed October 17, 2014 (Doc. 52-3)(“First VA Letter”). The letter disputes that J. Van Winkle “suffered injury as a result of multiple acts of negligence by . . . Wood, ” arguing that Wood is not a “Government employee” liable under the FTCA, but rather an “independent contract physician” and an employee of a separate company, Medical Associates. First VA Letter at 1. The letter then asserts that the VA investigated whether J. Van Winkle “received good care from his other VA-employed providers, ” and concluded that “there was nothing VA employees acting in the course and scope of their employment . . . did or failed to do that caused any injury to Mr. Van Winkle.” First VA Letter at 1-2.

         The Plaintiffs[13] replied to the First VA Letter on December 2, 2013. See Letter from Doug Perrin to Bonita Ortiz Regarding Administrative Tort Claim (dated December 2, 2013), filed October 17, 2014 (Doc. 52-4)(“December 2 Letter”). In the letter, the Plaintiffs explain that, after mailing the April 2 Letter, they discovered “that a pharmacist or representative of the pharmacy department at the VA Hospital in Albuquerque accompanies physicians on their rounds of patients everyday [sic].” December 2 Letter at 1. The letter surmises from this discovery “that a pharmacist should . . . have been with Dr. Wood and other treating physicians when Mr. Van Winkle was being seen in rounds in each day”; that the pharmacist “should have known that the drugs being given to Mr. Van Winkle did not properly ‘match up' with his condition”; that “the pharmacist should have known the results of the culture”; and that, as a result, the pharmacist “should have known that Mr. Van Winkle was receiving the wrong drugs for his condition.” December 2 Letter at 1. The letter concludes that the Unnamed Pharmacist's failure to warn the treating physicians about these problems lengthened the time required for a proper diagnosis, thereby allowing J. Van Winkle's condition to worsen. See December 2 Letter at 1.

         The Plaintiffs followed with a one-sentence letter on December 9, 2013, stating that the December 2 Letter “should be regarded as and is intended as an amendment to” the April 2 Letter. Letter from Doug Perrin to Bonita Ortiz Regarding Administrative Tort Claim (dated December 9, 2013) at 1, filed October 17, 2014 (Doc. 52-5). The VA's Office of Regional Counsel promptly replied: “There is no provision to amend a tort claim after this office has adjudicated the claim and issued a final decision.” Letter from Benita Ortiz to Doug Perrin Regarding Administrative Tort Claim (dated December 9, 2013) at 1, filed October 17, 2014 (Doc. 52-6).

         The next day, on December 10, 2013, the Plaintiffs mailed a letter requesting that the VA's Office of Regional Counsel reconsider its denial of their tort claim. See Letter from Doug Perrin to Department of Veterans Affairs Regarding Administrative Tort Claim (dated December 10, 2013), filed October 17, 2014 (Doc. 52-7)(“December 10 Letter”). The Plaintiffs contend that: (i) the VA failed to provide documentation that Wood is not its employee and that, regardless, Wood might qualify as an employee under the functional test articulated in Woodruff v. Covington, 389 F.3d 1117 (10th Cir. 2004); and (ii) the pharmacy employees failed to exercise ordinary care or meet their professional obligations in the performance of their duties. See December 10 Letter at 1.

         The Plaintiffs submitted a final letter on April 23, 2014. See Letter from Doug Perrin to Department of Veterans Affairs Regarding Estate of Joseph Oran Van Winkle, Deceased (dated April 23, 2014), filed October 17, 2014 (Doc. 52-8)(“Final Letter”). The Final Letter restates the same factual allegations as the Plaintiffs' earlier letters, with one exception: it alleges that Quintana, who assisted Wood “in the care and treatment of Mr. Van Winkle, ” had notice of a positive urine test result for staphylococcus aureus but failed to convey that information to Wood. Final Letter at 1.

         PROCEDURAL BACKGROUND

         The Plaintiffs commenced this action on September 25, 2013, in the First Judicial District Court, County of Santa Fe, New Mexico. See Plaintiffs' Original Complaint for Wrongful Death Damages Due to Medical Malpractice, filed in Federal Court November 4, 2013 (Doc. 10-1)(“2013 Complaint”). The 2013 Complaint asserts two causes of action against two Defendants: (i) a negligence claim against Wood, see 2013 Complaint ¶¶ 14-15, at 4; and (ii) a negligence claim against Medical Doctor Associates, LLC (“Medical Associates”), based on a theory of respondeat superior, see 2013 Complaint ¶¶ 16-17, at 4-5. On November 4, 2013, Wood and Medical Associates removed the case to federal district court pursuant to 28 U.S.C. §§ 1332(a) and 1441(a). See Defendants Maureen Wood, M.D. and Medical Doctor Associates, LLC's Notice of Removal, filed November 4, 2013 (Doc. 10).

         The Plaintiffs filed an amended Complaint on June 30, 2014, adding the United States as a Defendant. See 2014 Complaint at 1. The 2014 Complaint asserts three causes of action: (i) a negligence claim against Wood for “failing to properly diagnose” J. Van Winkle, “failing to review the chart and recognize and properly treat the staph aureus infection, ” and “discharging Mr. Van Winkle prematurely, and without sufficient proper antibiotic coverage, ” 2014 Complaint ¶¶ 17-18, at 5; (ii) a negligence claim, based on a theory of respondeat superior, against Medical Associates for its “failure to properly and adequately investigate Dr. Wood's credentials and abilities, monitor her activities and supervise her, ” 2014 Complaint ¶¶ 19-20, at 5; and (iii) a negligence claim, based on a theory of respondeat superior, against the United States for its agents' “failure to recognize the wrong medications being given and their failure to notify Dr. Wood of the positive culture and drugs to which the staph aureus was susceptible, ” 2014 Complaint ¶¶ 21-22, at 5. The 2014 Complaint alleges that Quintana and an Unnamed Pharmacist are the United States' agents. See 2014 Complaint ¶¶ 8-10. The 2014 Complaint seeks damages for J. Van Winkle's pain and suffering, physical impairment, disfigurement, medical expenses, and mental anguish. See 2014 Complaint ¶ 24, at 6. Moreover, M. Van Winkle seeks damages for mental anguish and loss of consortium, while Gallegos seeks damages for loss of consortium, loss of her father's “society and guidance, ” and wrongful death. 2014 Complaint ¶ 24, at 6.

         1. The First Motion to Dismiss.

         The United States filed a motion to dismiss the 2014 Complaint on October 17, 2014. The Court will discuss the United States' motion and its responsive briefings. The Court will then discuss the hearing that it held on the motion on December 18, 2014.

         a. The First MTD.

         The United States moved to dismiss the 2014 Complaint on October 17, 2014, asserting that the Court lacks subject-matter jurisdiction, because the Plaintiffs have failed to exhaust their administrative remedies as § 2675 of the FTCA requires. See Motion to Dismiss for Lack of Subject Matter Jurisdiction at 1, filed October 17, 2014 (Doc. 52)(“First MTD”). The United States explains that the FTCA waives its sovereign immunity in limited circumstances, and that, before filing suit, a claimant must “file[] an administrative claim with the appropriate agency . . . within two years from the time the claim accrues.” First MTD at 5 (citing 28 U.S.C. § 2675; D'Addabbo v. United States, 316 F. App'x 722, 724 (10th Cir. 2008)(unpublished)). The United States asserts that “the claimant must wait either until the administrative agency finally denies the claim or until at least six months have passed after the claim was filed.” First MTD at 5 (citing 28 U.S.C. § 2675).

         Here, the United States says, the April 2 Letter does not exhaust the Plaintiffs' administrative remedies, because it does not notify the VA of the claims that the 2014 Complaint asserts against Quintana and an Unnamed Pharmacist. See First MTD at 6, 9-11. Next, the United States contends that, although the Final Letter provides notice of the Plaintiffs' claim against Quintana, it does not exhaust the Plaintiffs' administrative remedies, because (i) the VA has not finally decided the claim; and (ii) the Plaintiffs filed the 2013 Complaint and the 2014 Complaint within six months of mailing the letter. See First MTD at 6, 11-12. The United States argues that, similarly, Gallegos' claims are premature, because she did not provide notice of any claims until the Final Letter, and (i) the VA has not made a decision as to the Final Letter; and (ii) six months have not elapsed since the Final Letter's submission. See First MTD at 12. Last, the United States contends that the Plaintiffs' allegations against the Unnamed Pharmacist are barred, because the Plaintiffs never filed a notice of claim as to the Unnamed Pharmacist and because two years have elapsed since the events giving rise to this litigation. See First MTD at 12.

         b. The First MTD Wood/MDA Response.

         Wood and Medical Associates filed a response to the First MTD on October 31, 2014. See Response of Defendants Maureen Wood, M.D., and Medical Doctor Associates, LLC, to Motion to Dismiss for Lack of Subject Matter Jurisdiction [Doc. 52] Filed by Defendant the United States of America, and Application for Relief Pursuant to Fed.R.Civ.P. 56(d), filed October 31, 2014 (Doc. 55)(“First MTD Wood/MDA Response”). Wood and Medical Associates concede that they would ordinarily be “hard-pressed to demonstrate standing” to oppose the First MTD, but contend that, because the First MTD “attempts to establish certain facts as true, ” they feel compelled to “oppose the entry of what might well otherwise amount to partial summary judgment.” First MTD Wood/MDA Response at 2-3. Turning to substance, they assert that the Court may have subject-matter jurisdiction, because, under a “functional test, ” Wood may be a VA employee. First MTD Wood/MDA Response at 4 (citing United States v. Orleans, 425 U.S. 807 (1976); Woodruff v. Covington, 389 F.3d 117 (10th Cir. 2004)). Accordingly, they request discovery regarding the VA's treatment protocols, personnel policies, and other information pertinent to the functional test's application. See First MTD Wood/MDA Response at 7.

         c. The First MTD Plaintiffs' Response.

         The Plaintiffs responded to the First MTD on November 7, 2014. See Plaintiffs' Response to Defendant United States of America's Motion to Dismiss for Lack of Subject Matter Jurisdiction, filed November 7, 2014 (Doc. 57)(“First MTD Plaintiffs' Response”). The Plaintiffs first argue that they provided sufficient notice regarding their allegations against the Unnamed Pharmacist in the December 2 Letter. See First MTD Plaintiffs' Response at 2-3. The Plaintiffs assert that that letter constitutes a new notice of claim, rather than an amendment or supplement to the April 2 Letter. See First MTD Plaintiffs' Response at 2-3 (admitting that they “called [the letter] the wrong thing (an amendment), ” but contending that “that should not change the substance”). Finally, they note that the VA denied their claim on December 9, 2013, and that they requested reconsideration the next day. See First MTD Plaintiffs' Response at 2-3.

         The Plaintiffs do not advance a similar argument regarding their allegations against Quintana. See First MTD Plaintiffs' Response at 1-2. They allow that they gave notice of their claims against him on April 23, 2014, and that they prematurely filed suit on June 30, 2014, before the FTCA's six-month waiting period had elapsed. See First MTD Plaintiffs' Response at 4-5. They state, however, that, because the six-month window has now expired, the Court should allow them to amend their 2014 Complaint and that any dismissal should be without prejudice to refilling. See First MTD Plaintiffs' Response at 2.

         d. The First MTD Reply.

         The United States replied to the Plaintiffs and to Wood and Medical Associates on November 20, 2014. See Reply to Responses of Defendants Maureen Wood, M.D. and Medical Doctor Associates, LLC and to Plaintiffs' Response to Motion to Dismiss for Lack of Subject Matter Jurisdiction, filed November 20, 2014 (Doc. 60)(“First MTD Reply”). The United States argues that Wood and Medical Associates lack standing to oppose the First MTD, noting that they have not asserted any cross-claims and that they have no legal interest which a decision on the First MTD would affect. See First MTD Reply at 1-2. Next, they contend that Wood's employment status is irrelevant to the First MTD, because the Plaintiffs assert claims against the United States based on Quintana's and an Unnamed Pharmacist's actions and not on Wood's actions. See First MTD Reply at 3. According to the United States, the issue is “whether Plaintiffs exhausted their administrative remedies” and not whether the United States is liable. First MTD Reply at 3.

         The United States then addresses all possible notices of claims against it. See First MTD Reply at 4-5. First, the United States argues that the April 2 Letter “did not provide the Agency with notice of the claims raised in the [2014] Complaint, ” and that, accordingly, it had no “opportunity to investigate and possibly settle the claim” before the litigation commenced. First MTD Reply at 4. Second, the United States argues that the December 2 Letter is not a new or independent notice of claim, noting that the Plaintiffs explicitly labeled the letter “as a ‘supplement' to the notice of claim dated April 2, 2013, and later referenced it as an ‘amendment.'” First MTD Reply at 4. Third, the United States contends that, even if the December 2 Letter is a new notice of claim, (i) the VA has not issued a denial; and (ii) even if the VA has issued a denial, the Plaintiffs request that the VA reconsider the wrong claim in their December 10 Letter. See First MTD Reply at 5. In the United States' view, the VA “alerted Plaintiffs that the supplement or amendment to the December 2, 2013 notice of claim had no effect and took no further action.” First MTD Reply at 5. The United States maintains, however, that, to the extent the Plaintiffs interpret the message as a denial, they failed to seek reconsideration within six months as 28 U.S.C. § 2401(b) requires. See First MTD Reply at 5. The United States admits that the December 10 Letter requests reconsideration, but argues that the letter “specifically stated that it was requesting reconsideration of the claim the VA had denied on June 19, 2013.” First MTD Reply at 5-6. Finally, the United States contends that amendments cannot cure the Plaintiffs' failure to exhaust their administrative remedies for their claims against Quintana. See First MTD Reply at 6-7.

         e. The First MTD Hearing.

         The Court held a hearing on the First MTD on December 18, 2014. See Transcript of Motion Hearing (taken December 18, 2014)(“2014 Tr.”).[14] The Court queried whether the parties are “just quibbling over the heading” on the December 2 Letter. 2014 Tr. at 6:11-12 (Court). In response, the United States maintained that the Plaintiffs failed to request that the VA reconsider the December 2 Letter. See 2014 Tr. at 6:13-15 (Keegan). The Plaintiffs demurred, allowing that they might have “mess[ed] up a two-car parade, ” but asserting that their errors are not fatal to the suit. 2014 Tr. at 11:1-6 (Perrin). The Plaintiffs posited that the United States had sufficient information about their allegations against an Unnamed Pharmacist to investigate the underlying facts by December 2, 2013. See 2014 Tr. at 11:6-13 (Perrin). The Plaintiffs contended, moreover, that, even if they failed to give proper notice as to their allegations against Quintana, the Court should not dismiss the case, because (i) the Court has diversity jurisdiction over Wood; and (ii) as a practical matter, any separate lawsuit would only be consolidated into the present case. See 2014 Tr. at 12:17-13:17 (Perrin).

         Wood and Medical Associates then argued. See 2014 Tr. at 14:2 (Gay). They admitted that they are unsure whether they have standing to discuss jurisdiction, see 2014 Tr. at 14:2-6 (Gay), but justified their opposition to the First MTD by characterizing it as a motion for summary judgment, see 2014 Tr. at 20:24-21:3 (Gay). Turning to substance, they noted that the Plaintiffs, in a lengthy list attached to the April 2 Letter, mentioned Quintana and a possible responsible pharmacist. See 2014 Tr. at 14:6-15:9 (Gay). They added that the United States' First VA Letter states that the VA “wanted to be sure that Mr. Van Winkle received good care from his other VA providers.” 2014 Tr. at 15:13-16:9 (Gay). They concluded that, “[c]learly, the VA looked at the entire case . . . . This is a denial of the claim as to all VA employees.” 2014 Tr. at 16:10-14 (Gay).

         In rejoinder, the United States explained that the VA reviewed J. Van Winkle's medical records, but did not discuss them with Quintana or the Unnamed Pharmacist, because “they were not the doctors or responsible medical providers of Mr. Van Winkle.” 2014 Tr. at 25:9-18 (Keegan). The United States also disputed that the list appended to the April 2 Letter included Quintana. See 2014 Tr. at 25:21-27:5 (Keegan)(referencing Ham v. United States, 2008 WL 818197, at *4 (W.D. Pa. 2008)(McVerry, J.)). Finally, the United States reiterated the argument from its briefing that Wood's employment status is irrelevant, because it is “not a claim against the United States.” 2014 Tr. at 32:10-16 (Keegan).

         2. The 2015 Litigation, the Second Motion to Dismiss, and the Consolidation.

         The Plaintiffs commenced a separate action against the United States in federal district court on March 4, 2015. See Plaintiffs' Original Complaint for Wrongful Death Damages Due to Medical Malpractice at 1, filed March 4, 2015 (Doc. 1 in Gallegos v. United States, No. CIV 15-0184 JB/KBM)(“2015 Complaint”). The 2015 Complaint largely repeats the 2013 Complaint's and 2014 Complaint's factual accounts, but focuses on the Plaintiffs' allegations against Quintana and the Unnamed Pharmacist. See 2015 Complaint ¶¶ 16-18, at 4. The United States moved to dismiss this second action on May 15, 2015. See Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim and Memorandum in Support at 1, filed May 15, 2015 (Doc. 6 in Gallegos v. United States, No. CIV 15-0184 JB/KBM)(“Second MTD”)).

         a. The Second MTD.

         The United States' Second MTD advances two primary arguments: (i) that the Plaintiffs fail to state a claim under circumstances in which a private person would be liable, i.e., that there is no “private person” analogue for the Plaintiffs' claims; and (ii) that the Plaintiffs have not exhausted their administrative remedies, because they provided insufficient notice of their allegations against Quintana and the Unnamed Pharmacist. Second MTD at 8. Regarding the first argument, the United States explains that the FTCA's limited grant of subject-matter jurisdiction hinges on “whether a private person could be subject to state law liability under similar circumstances.” Second MTD at 10 (citing United States v. Olson, 546 U.S. 43, 44 (2005)). Here, the United States contends, the Court lacks subject-matter jurisdiction, because “New Mexico does not recognize a duty of care of a private person under analogous circumstances.” Second MTD at 11. See id. at 11-12 (defining the relevant duty as an individual's duty “to interfere with medical care provided by his supervisor”). The United States posits, moreover, that other states have declined to impose a duty under similar circumstances. See Second MTD at 12-13 (citing, e.g., Buttersworth v. Swint, 186 S.E. 770, 772 (Ga. 1936)). The United States elaborates that the 2015 Complaint does not allege that Quintana and an Unnamed Pharmacist “assumed the care of Mr. Van Winkle, ” or that they “had the right or ability to control either Dr. Wood or Mr. Van Winkle.” Second MTD at 13. The United States also cites public policy arguments, including the New Mexico Legislature's limitations on malpractice liability. See Second MTD at 13-14.

         With respect to the notice issue, the United States advances largely the same arguments as its First MTD. Compare First MTD at 10-12, with Second MTD at 16-21. The United States reiterates that: (i) the April 2 Letter does not provide proper notice, because it did not mention any pharmacist; (ii) the December 2 Letter neither amends the April 2 Letter nor serves as a new claim; and (iii) the Plaintiffs failed to request reconsideration of the December 2 Letter or file suit within six months. See Second MTD at 16-21. The United States also adds that the Plaintiffs' decision to amend the 2013 Complaint in the initial litigation effectively rendered their December 2 Letter denied. See Second MTD at 21. Finally, the United States argues that this suit, “filed more than six months after Plaintiffs deemed the agencies' action (or inaction) as a denial, is untimely.” Second MTD at 21.

         b. The Consolidation.

         The 2015 Complaint effectively created two parallel proceedings within the District of New Mexico based on the same facts. Compare 2014 Complaint at 1-7, with 2015 Complaint at 1-5. The Plaintiffs moved to consolidate the two proceedings on May 22, 2015. See Plaintiffs' Motion to Consolidate, filed May 22, 2015 (Doc. 8 in Gallegos v. United States, No. CIV 15-0184 JB/KBM). The Court granted the request on June 16, 2015, and combined the two proceedings. See Order on Plaintiffs' Motion to Consolidate [Doc. 8], filed June 16, 2015 (Doc. 11 in Gallegos v. United States, No. CIV 15-0184 JB/KBM).

         c. The Second MTD Response.

         The Plaintiffs responded to the Second MTD on June 30, 2015. See Plaintiffs' Response to Defendant United States of America's Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim, filed June 30, 2015 (Doc. 68)(“Second MTD Response”). The Plaintiffs explain that they filed the 2015 Complaint in response to the United States' argument that joinder was premature, “to remove any doubt as to the appropriateness of the joinder and the timing of it.” Second MTD Response at 4. The Plaintiffs aver that, “[a]pparently, the position of the United States is that the only person working at the VA Medical Center who owed a duty to Mr. Van Winkle was the physician who was not an employee of the United States.” Second MTD Response at 4. The Plaintiffs state that this position is “preposterous, ” Second MTD Response at 4, and advance several arguments regarding Quintana's and the Unnamed Pharmacist's duties, see Second MTD Response at 5-7.

         First, the Plaintiffs aver that Quintana had a duty to “provid[e] information about the positive cultures to Dr. Wood, ” which would have “helped [Wood], and helped the patient.” Second MTD Response at 5. The Plaintiffs add that doctors in New Mexico have a “duty to ‘possess and apply the knowledge and to use the skill and care ordinarily used by reasonably well-qualified doctors . . .' in treating, making a diagnosis of, or caring for a patient.” Second MTD Response at 5 (quoting N.M. Rul. Amend. Civ. UJI 13-1101). This duty, the Plaintiffs assert, applies regardless whether Quintana was subordinate to Wood. See Second MTD Response at 5. The Plaintiffs apply a similar analysis to the Unnamed Pharmacist's duties to J. Van Winkle, arguing (i) that the Unnamed Pharmacist “possessed information which Dr. Wood did not have” about J. Van Winkle's condition; (ii) that the Unnamed Pharmacist “knew or should have known that Mr. Van Winkle was receiving the wrong drugs for his condition”; and (iii) that “disclosure from the pharmacist [of] what he or she knew” could have “improved Dr. Wood's treatment.” Second MTD Response at 6.

         The Plaintiffs then contend that they have complied with the FTCA's notice requirements. See Second MTD Response at 7-8. The Plaintiffs repeat their earlier arguments that the December 2 Letter provides the United States with sufficient notice of their claims. See Second MTD Response at 7. The Plaintiffs also note that their claim against the Unnamed Pharmacist “was the subject of a request for reconsideration filed on December 10, 2013.” Second MTD Response at 8.

         d. The Second MTD Reply.

         The United States replied on July 16, 2015. See Reply in Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction, filed July 16, 2015 (Doc. 12 in Gallegos v. United States, No. CIV 15-0184 JB/KBM)(“Second MTD Reply”). The United States clarifies that it seeks dismissal on two separate grounds, each under a different provision of the Federal Rules of Civil Procedure. See Second MTD Reply at 3-4. Its private-person-analogue argument, the United States says, relies on rule 12(b)(6), and thus draws exclusively from the 2015 Complaint. See Second MTD Reply at 3-4. The United States notes, however, that its notice argument “is not intertwined with the merits of the suit” and thus relies on rule 12(b)(1). Second MTD Reply at 4.

         Addressing first the private-person-analogue argument, the United States asserts that, absent a physician-patient relationship, a doctor is “liable for injuries by parties with known ‘dangerous propensities' if the doctor exerts control over the patient[.]” Second MTD Reply at 5. The United States adds that “a doctor has a duty to warn of specific threats by the doctor's patient, and a doctor may be held liable for administering powerful drugs in his office that result in impairment to the patient.” Second MTD Reply at 5 (citing Brown v. Kellogg, 2015-NMCA-006, ¶ 8, 340 P.3d 1274, 1276). Here, the United States argues, the Court should not impose a new obligation on doctors to “inform the patient's doctor of information that is readily available in the patient's chart.” Second MTD Reply at 4. The United States also disputes that J. Van Winkle was Quintana's patient, and notes that Quintana “had neither the right nor the ability to control Dr. Wood's conduct.” Second MTD Reply at 6-7. As for the Unnamed Pharmacist, the United States asserts that New Mexico courts have never recognized a pharmacist's duty to intervene on a patient's behalf. See Second MTD Reply at 7.

         Turning to the notice issue, the United States largely repeats the arguments from its earlier briefings. See Second MTD Reply at 8-9. The United States contends that, even assuming that the VA denied the December 2 Letter, the Plaintiffs failed to seek reconsideration of that denial or to file suit within six months. See Second MTD Reply at 9 (citing 28 U.S.C. § 2401(b)).

         3. The Court's First MTD Memorandum Opinion and Order.

         The Court issued a Memorandum Opinion disposing of the First MTD on October 1, 2015. See Gallegos v. Wood, No. CIV 13-1055 JB/KBM, 2015 WL 6393561 (D.N.M. Oct. 1, 2015)(“First MTD Opinion”). The Court held, in relevant part, that: (i) the April 2 Letter gives sufficient notice of the Plaintiffs' allegations against both Quintana and the Unnamed Pharmacist; and (ii) despite the label, the Plaintiffs' December 2 Letter to the VA constitutes a separate notice of claim. See First MTD Opinion, 2015 WL 6393561, at *18. Regarding the first issue, the Court noted:

         Courts generally disregard the labels attached to particular pieces of a plaintiff's notice of claim. In Dynamic Image Technologies, Inc. v. United States, [221 F.3d 34 (1st Cir. 2000), ] for example, the First Circuit examined the plaintiff's allegations “regardless of the labels employed in the amended complaint.” 221 F.3d at 40. This rule is consistent with the fact that “Congress did not intend to shield the federal fisc behind an impenetrable thicket of lawyerly technicalities.” 221 F.3d at 40.

         First MTD Opinion, 2015 WL 6393561, at *22. As for the second issue, the Court concluded that “[t]he underlying purpose of the notice requirement has been more than satisfied here -- the VA was well-aware of the Plaintiffs' argument against the unnamed pharmacist as early as December 2, 2013.” First MTD Opinion, 2015 WL 6393561, at *23 (relying on Williams v. United States, 932 F.Supp. 357, 361 (D.D.C. 1996)(Lamberth, J.)(holding that “[i]t is only necessary that the agency be put on notice of the injury so that it may begin its own investigation of the matter”)).

         4. The Second MTD Hearing.

         The Court held a hearing on the Second MTD on October 1, 2015. See Transcript of Motion Hearing (taken October 1, 2015)(“2015 Tr.”). The Court opened the hearing by noting that its First MTD Opinion largely resolves the United States' notice arguments. See 2015 Tr. at 2:15-19 (Court). The Court thus focused the parties' argument on the private-person-analogue issue, noting that it is inclined to find that New Mexico recognizes a duty applicable to at least the Unnamed Pharmacist. See 2015 Tr. at 2:19-23 (Court).

         The United States then argued, averring that “there is no relationship between the pharmacist, or for that matter Dr. Quintana, [and] the patient.” 2015 Tr. at 6:21-23 (Keegan). The United States asserted, moreover, that the Court should resolve any doubts over unsettled law against jurisdiction and should avoid predicting how the Supreme Court of New Mexico would react to the situation. See 2015 Tr. at 7:22-8:22 (Court, Keegan). Although the United States agreed that “every doctor is responsible for the care that they [sic] provide to a patient, ” it argued that neither Quintana nor the Unnamed Pharmacist had an obligation to prevent Wood's negligence. 2015 Tr. at 11:18-12:2 (Keegan). The United States also remarked that the Plaintiffs “never requested Dr. Quintana or this pharmacist to provide care, ” that those individuals “never agreed to provide that care to Mr. Van Winkle, ” and that the Plaintiffs “don't allege that either Dr. Quintana or the pharmacist had any control over Dr. Wood.” 2015 Tr. at 15:24-16:4 (Keegan).

         In rejoinder, the Plaintiffs contended that the Unnamed Pharmacist was present with Wood, and knew or should have known that Wood's prescriptions were incorrect. See 2015 Tr. at 18:2-19:22 (Court, Perrin). The Plaintiffs also argued that Quintana and the Unnamed Pharmacist are “representatives and agents” for the hospital, which has “unquestioned” liability. 2015 Tr. at 21:19-22:4 (Perrin). The Court queried whether a medical fellow, such as Quintana, is really a physician, noting that judicial law clerks, for example, are trainees and cannot easily commit malpractice. See 2015 Tr. at 23:12-22 (Court). The Plaintiffs answered that Wood's patients would be Quintana's patients as well, but that Quintana was likely a University of New Mexico employee. See 2015 Tr. at 24:19-25:21 (Court, Perrin).

         The Court then invited argument from Wood and Medical Associates on the Second MTD. See 2015 Tr. at 25:24-26:5 (Court). They opened by framing Quintana's duty as the “obligation to pass on information” about J. Van Winkle's laboratory test results. 2015 Tr. at 28:18-23 (Gay). They asserted that Quintana has this duty, in part, because he is a “physician, fully trained and licensed, who is undertaking subspecialty training.” 2015 Tr. at 29:3-7 (Gay). They also contended that Quintana and the Unnamed Pharmacist had independent obligations to report Wood's error “up the chain of command.” 2015 Tr. at 29:19-31:16 (Gay). Last, they argued that Quintana is federal employee, see 2015 Tr. at 36:19-23 (Gay), and that, regardless, he would be liable under the New Mexico Tort Claims Act as a University of New Mexico employee and should thus be liable under the FTCA, see 2015 Tr. at 43:17-44:16 (Gay).

         In reply, the United States contended that Quintana “is absolutely an employee of the VA, ” which is “why the United States is the only proper defendant.” 2015 Tr. at 48:10-12 (Keegan). The United States emphasized that Quintana was never assigned to J. Van Winkle, despite that he had his own patients, see 2015 Tr. at 48:23-49:4 (Keegan), and that Quintana had no authority to tell Wood how to practice medicine, see 2015 Tr. at 50:15-20 (Keegan). The United States added that pharmacists are “not responsible for diagnosing a patient and knowing what the proper medication is for that diagnosis.” 2015 Tr. at 51:16-20 (Keegan). The United States allowed that pharmacists “can absolutely commit malpractice, but only when acting within the scope of their job, which is to understand medications and their interactions.” 2015 Tr. at 52:10-13 (Keegan).

         The Court then summarized its view of the case. See 2015 Tr. at 53:2-54:15 (Court). The Court reiterated its inclination to deny the Second MTD based on its opinion of Quintana's and the Unnamed Pharmacist's duties. See 2015 Tr. at 53:25 (Court). The Court posited that its resolution of the Second MTD should apply across both consolidated cases. See 2015 Tr. at 54:12-15 (Court).

         In response to this suggestion, Wood and Medical Associates contended that collateral estoppel should dispose of the United States' notice arguments, but the United States reiterated that it had not abandoned those arguments. See 2015 Tr. at 54:18-55:11 (Court, Gay, Keegan).

         5. The Court's Second MTD Memorandum Opinion and Order and Final Judgment as to the 2015 Lawsuit.

         The Court issued a memorandum opinion granting in part and denying in part the Second MTD on October 1, 2015. See Gallegos v. Wood, No. CIV 13-1055 JB/KBM, No. CIV 15-0184 JB/KBM, 2016 WL 1426554 (D.N.M. March 31, 2016)(“Second MTD Opinion”). At the outset, the Court noted that it would apply the Second MTD across both the 2013 lawsuit, based on the original 2013 Complaint, and the 2015 lawsuit, based on the 2015 Complaint. See Second MTD Opinion, 2016 WL 1426554, at *22. The Court then held that the FTCA waives the United States' sovereign immunity from suit, because private persons performing the same acts as Quintana and the Unnamed Pharmacist would be liable under New Mexico law. See Second MTD Opinion, 2016 WL 1426554, at *22-28. The Court, therefore, denied the Second MTD as to the 2013 lawsuit. See Second MTD Opinion, 2016 WL 1426554, at *22-28.

         Next, the Court maintained its prior conclusions from the First MTD Opinion as to the FTCA's notice requirements. See Second MTD Opinion, 2016 WL 1426554, at *22, 28. The Court thus maintained that the April 2 Letter provides sufficient notice of the Plaintiffs' allegations against both Quintana and an Unnamed Pharmacist, and that the December 2 Letter to the VA, despite its label, constitutes a separate notice of claim. See Second MTD Opinion, 2016 WL 1426554, at *22, 28. Nevertheless, because the Plaintiffs filed the 2015 Complaint more than six months after the 2014 Complaint, the Court granted the Second MTD with respect to the 2015 lawsuit. See Second MTD Opinion, 2016 WL 1426554, at *28 (citing 28 U.S.C. § 2401 (“A tort claim against the United States shall be forever barred unless . . . action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.”)). The Court noted, however, that this this conclusion “makes no practical difference to this case, because the same claims will proceed against Dr. Quintana and the unnamed pharmacist under the [2014] Complaint.” Second MTD Opinion, 2016 WL 1426554, at *28.

         On March 31, 2016, because the Court granted the Second MTD as to the 2015 lawsuit, the Court entered final judgment and dismissed that action without prejudice. See Final Judgment at 1-2, filed March 31, 2016 (Doc. 115).

         6. The Motion to Extend Deadlines for Identification of Expert Witnesses.

         On July 14, 2016, the Plaintiffs moved to extend by two weeks the deadlines for the parties to identify expert witnesses. See Motion to Extend at 1. The Court reviews the Motion to Extend and its responsive briefings in turn.

         a. The Motion to Extend.

         The Motion to Extend notes that the Plaintiffs are scheduled to identify testifying expert witnesses on or before July 20, 2016, and that the Defendants are scheduled to identify their testifying expert witnesses on or before August 22, 2016. See Motion to Extend at 1 (citing Second Scheduling Order at 2, filed January 21, 2016 (Doc. 87)(“Second Scheduling Order”)). According to the Plaintiffs, the “parties have not been able to take all necessary depositions at this point because of conflicts in schedules, disagreements on discovery, and continued production of medical records.” Motion to Extend at 1. The Plaintiffs thus request that the Court extend the deadlines for testifying expert witnesses “for the proper and complete presentation of the merits of this case to provide some brief additional time for experts to review the enormous quantity of records in this case.” Motion to Extend at 1. Specifically, the Plaintiffs request that the Court extend the Plaintiffs' deadline by two weeks to August 3, 2016, and the Defendants' deadline by two weeks to September 6, 2016. See Motion to Extend at 2. Wood and Medical Associates concur with the Motion to Extend. See Motion to Extend at 2.

         b. The Motion to Extend Response.

         The United States responded to the Motion to Extend on July 18, 2016. See Response to Plaintiff's [sic] Motion for Extension of Deadlines to Identify Expert Witnesses at 1, filed July 18, 2016 (Doc. 143)(“Motion to Extend Response”). The United States asserts that the Plaintiffs have “failed to show good cause (or even a candid reason)” for the requested deadline extensions. Motion to Extend Response at 1. To provide context for its opposition to the Motion to Extend, the United States observes that this action has been pending since October 28, 2013, and that, “[d]espite the unusually long period of time that Plaintiffs had to identify their expert, ” the Plaintiffs requested on July 7, 2016, that the parties agree to a two-week extension to “disclose a cardiologist, presumably to address causation.” Motion to Extend Response at 2-3 (citing Email Exchange between Doug Perrin and Ruth F. Keegan Regarding Deadline Extension at 1 (dated July 7, 2016), filed July 18, 2016 (Doc. 143-3)). The United States indicates that, although it did not initially object to the Plaintiffs' request, it now opposes the Motion to Extend, which “appears to cast blame on the United States . . . for the Plaintiffs' failure, after three years, to timely identify an expert witness.” Motion to Extend Response at 3 (relying on the Motion to Extend's allegation that an extension is necessary, because the parties were unable “to take necessary depositions at this point because of conflicts in schedules and disagreements on discovery”).

         Turning to its legal argument, the United States contends that a scheduling order may be modified under rule 16(b)(4) of the Federal Rules of Civil Procedure “only for good cause and with the judge's consent.” Motion to Extend Response at 3. Here, the United States avers, the Plaintiffs' “only explanation” for their request to modify is “conflicts in schedules, disagreements on discovery, and continued production of medical records.” Motion to Extend Response at 3. The United States disputes these assertions, arguing that “it has provided all medical records to the parties”; that “the only discovery dispute that the United States had with Plaintiffs was over plaintiffs' failure to properly respond to discovery”; and that the only requested deposition that has not yet been taken is Quintana's, a “critical care fellow” who “could not have played the slightest role in Plaintiffs' need for an extension of time, ” because the Plaintiffs request additional time to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.