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Woods v. United States

United States District Court, D. New Mexico

October 19, 2017



         Two motions are pending in this medical malpractice lawsuit. On March 24, 2017, Defendant the United States of America filed a Motion to Dismiss, or in the alternative, for Transfer of Venue (ECF No. 22), seeking transfer of this case to the Western District of Texas, El Paso division, because it believes that the operative facts underlying this lawsuit originated there. On April 25, 2017, the United States filed a Motion for Leave to Amend (ECF No. 33) its original answer to raise improper venue as an affirmative defense. The Court, having considered the motions, briefs, pleadings, and applicable law, concludes that both motions should be denied.


         On September 20, 2013 Plaintiff Albert Woods sought medical care at the William Beaumont Army Medical Center (“Beaumont”) in El Paso, Texas to treat a painful blood clot that formed in his leg. See Comp. ¶ 4, ECF. No. 1. Beaumont, which is owned and operated by the United States, placed Mr. Woods on an anti-coagulant, and admitted him overnight. Id. ¶¶ 3-4. The following morning, Beaumont staff discharged Mr. Woods, prescribed him an anticoagulant, and told him he could return to his home in Alamogordo, New Mexico. Id. ¶ 5. By the time Mr. Woods reached Alamogordo, the pain in his leg had intensified. Id. Concerned, Mr. Woods' wife, Plaintiff Narda Woods, called Mr. Woods' treating physician at Beaumont, Dr. Johanna Hollweg, and told her that her husband's pain had worsened. Id.; Def.'s Ex. A, ECF No. 22-1. Dr. Hollweg advised Mrs. Woods to use alternating hot and cold packs to alleviate the pain, and told her that she would call Plaintiffs the next morning. See Comp. ¶ 5.

         That morning, Mr. Wood's leg grew three times its size and a fluid seeped through the skin on his leg. Id. ¶ 6. Mrs. Woods once more telephoned Dr. Hollweg and reported the alarming change in her husband's leg. Id. Dr. Hollweg told the Plaintiffs to go to the emergency room at the Gerald Champion Regional Medical Center (“Gerald Champion”) in Alamogordo. Id. Plaintiffs followed Dr. Hollweg's advice and went to Gerald Champion the same day. Id. ¶ 7.

         Defendant James Wells was the supervising emergency physician at Gerald Champion, and was responsible for overseeing and reviewing the medical care provided by his staff, including that of his physician's assistant, Defendant Joshua Cerna. Id. Mr. Cerna evaluated Mr. Woods upon arrival. Id. Uncertain about what caused Mr. Woods' medical condition, Mr. Cerna told the Plaintiffs to return home and go to back Beaumont the following day. Id. Mr. Cerna never contacted Mr. Woods' physician at Beaumont to assess Mr. Woods' condition, nor did Mr. Cerna consult with his supervisor, Dr. Wells. Id. ¶¶ 7, 14. Likewise, Dr. Wells never evaluated Mr. Woods, and never spoke to either Mr. Cerna or staff at Beaumont about Mr. Woods. Id.

         The following day, Plaintiffs returned to Beaumont. Id. ¶ 8. Staff there immediately admitted Mr. Woods, recognizing that he was at risk of losing his leg because of compartment syndrome. Id. Compartment syndrome is a condition in which increased bleeding accumulates in groups of muscles, impeding blood flow to and from tissues. Id. Increased bleeding, which is a side effect of anti-coagulant medication, may have formed a blood clot in Mr. Woods' leg, which in turn caused compartment syndrome. Id. Beaumont staff responded by performing emergency surgery on Mr. Woods' leg to decompress the muscles. Id. Although staff saved his leg, Mr. Woods suffered from complications of compartment syndrome, including sepsis and renal failure, and various other complications which still trouble him today. Id. ¶ 10.


         On September 20, 2016 Plaintiffs filed suit against Defendants under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, which subjects the United States to liability for the tortious conduct of its employees; and, in accordance with 28 U.S.C. § 1346(b)(1), under the common law of New Mexico for negligence stemming from the Defendants' alleged failure to adhere to the standard of care observed by physicians. See Comp. ¶¶ 1, 11-14.

         On March 6, 2017 the United States filed its answer (“Answer”), its first responsive pleading in this case. In its Answer, the United States did not challenge venue in the District of New Mexico. Nor did the United States amend its Answer as of right within 21 days of filing it to include a challenge to venue. In a post-answer motion, the United States, for the first time, filed a Motion to Dismiss for Improper Venue, or in the Alternative, for Transfer of Venue to the Western District of Texas. Dr. Wells and Mr. Cerna - who are represented by separate counsel in this matter - took no position on the United States' Motion. See ECF No. 32. Then, about one month after answering the Complaint, the United States filed a Motion for Leave to Amend its Answer, seeking the Court's leave to affirmatively plead a challenge to venue in this District. Plaintiffs oppose this Motion. See ECF No. 40.

         On July 7, 2017 Plaintiffs and the United States agreed to dismiss with prejudice all of Mrs. Woods' claims against the United States. Thus, Mrs. Woods asserts claims only against Dr. Wells and Mr. Cerna; Mr. Woods, meanwhile, maintains all of his claims against each Defendant.


         The United States contends that its Answer did, in fact, assert the defense of improper venue, even if it expressly omitted it as an affirmative defense. According to the United States, its Answer challenged venue in three ways. First, it “denied that jurisdiction is appropriate in this Court and that New Mexico law applies, which implicates the venue question.” Second, it challenged each of the statutory bases for venue by denying the Complaint's allegations that Plaintiffs are New Mexico residents and that the tort occurred here. And third, it argues that its 27th affirmative defense, which states that “Defendant … has, or may have additional [unknown] affirmative defenses” that “Defendant specifically preserves … as they are ascertained through discovery” enables the United States to now raise the defense.

         Even though the United States contends that its Answer properly asserted a challenge to venue, the United States nonetheless requests leave to amend its Answer to affirmatively plead such a challenge. The Court will next examine this request.

         A. STANDARD

         Fed. R. Civ. P. 15(a)(2) provides for liberal amendment of pleadings, instructing courts to “freely give leave” to amend “when justice so requires.” “The grant of leave to amend the pleadings pursuant to Rule 15(a) is within the discretion of the trial court.” Minter vs. Prime Equipment Co., 451 F.3d. 1196, 1204 (10th Cir. 2006). Subsection 15(a)(2) provides that after a party has amended a pleading once as a matter of course or the time for amendments of that type has expired, a party may amend only by obtaining leave of court or if the adverse party consents. Leave should be “freely give[n] … when justice so requires, ” but leave need not be granted on “a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, … or futility of amendment.” Duncan v. Manager, Dept. of Safety, City and Cnty. of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005).

         B. ...

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