United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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.
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.
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.
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.
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.
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. ¶¶
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.
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.
MOTION FOR LEAVE TO AMEND ANSWER
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.
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.
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).