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Bowers v. United States

United States District Court, D. Nebraska

June 4, 2015

LINDA L. BOWERS, Plaintiff,


LAURIE SMITH CAMP, Chief District Judge.

This matter is before the Court on the Motion to Dismiss (Filing No. 10) filed by the United States (the "Government"). For the reasons stated, the claims of Plaintiff Linda L. Bowers against the Government will be dismissed.


Bowers brings her claims against the Government and Anthony J. Yonkers, M.D. ("Yonkers") based on alleged medical negligence occurring at the Department of Veterans Affairs ("VA") Hospital in Omaha, Nebraska, and pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680.

On February 1, 2008, the Nebraska Western Iowa Health Care System ("NWIHCS") entered into a contract with University of Nebraska Medical Center ("UNMC") Physicians to provide Ear, Nose and Throat ("ENT") otolaryngology medical services to beneficiaries of the NWIHCS Omaha Division (the "Contract"). (Solsky Decl., Filing 11-1; Memorandum of Understanding, Filing No. 11-2.) The original contract was effective April 1, 2008, through September 30, 2008. (Filing No. 11-2 at ECF 12.) The parties later extended the term of the contract through September 30, 2009. (Filing No. 11-2 at ECF 76.)

The Contract stated, in part, that the professional services rendered by UNMC Physicians or its healthcare providers were those of an independent contractor and that the Government "retain[ed] no control over professional aspects of the services rendered, including... [UNMC Physicians] or its health-care providers' professional medical judgment, diagnosis, or specific medical treatments." (Filing No. 11-2 at ECF 55.) The Contract also provided that "[UNMC Physicians] and its health-care providers shall be liable for their liability-producing acts or omissions." (Filing No. 11-2 at ECF 55.) The Contract mandated that UNMC Physicians require those providing healthcare services under the Contract to maintain their own professional liability insurance. (Filing No. 11-2 at ECF 55.) Yonkers was a physician employed by UNMC Physicians and not an employee of NWIHCS. (Filing No. 11-1 ¶ 7.)

On December 11, 2008, Yonkers performed a tonsillectomy on Bowers at the VA NWIHCS Hospital. Bowers alleges that a tonsillar remnant remained post-surgery that developed a cyst that was not discovered until 2012. The cyst caused several symptoms over time, including throat pain and nausea. As a result, Bowers was required to undergo a second surgery on August 2, 2012, to remove the cyst.

Bowers alleges that Yonkers breached his duty of care to Bowers and seeks general and special damages incurred as a result of Yonkers's negligence. Bowers submitted her claim to the VA, pursuant to the FTCA. Her claim was administratively denied on July 31, 2014, and she filed this action on January 30, 2015.


A motion under Federal Rule of Civil Procedure 12(b)(1) challenges whether the Court has subject matter jurisdiction to hear the case. The Court has "wide discretion'" to decide the process with which its jurisdiction can best be determined. Johnson v. United States, 534 F.3d 958, 964 (8th Cir. 2008) (quoting Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995)). It "has the authority to dismiss an action for lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.'" Id. at 962 (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)); see also Jessie v. Potter, 516 F.3d 709, 712 (8th Cir. 2008) (stating that "[m]otions to dismiss for lack of subject-matter jurisdiction can be decided in three ways: at the pleading stage, like a Rule12(b)(6) motion; on undisputed facts, like a summary judgment motion; and on disputed facts").

"Whether there is Article III standing is always an antecedent question" to whether a federal court has subject matter jurisdiction over an action; if standing "is lacking, a federal court has no subject-matter jurisdiction over the claim." Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 933, 934 (8th Cir. 2012) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-96 (1998)). For a party to have standing to sue in a federal court: (1) "there must be alleged... an injury in fact-a harm suffered by the plaintiff that is concrete and actual or imminent, not conjectural or hypothetical'"; (2) "there must be causation-a fairly traceable connection between the plaintiff's injury and the complained-of conduct of the defendant'"; and (3) "there must be redressability-a likelihood that the requested relief will redress the alleged injury.'" Id. (quoting Steel Co., 523 U.S. at 102-04).

The party attempting to invoke a federal court's jurisdiction bears the burden of establishing that jurisdiction exists. Id. (quoting Steel Co., 523 U.S. at 102-04); Great Rivers Habitat Alliance v. FEMA, 615 F.3d 985, 988 (8th Cir. 2010). At the pleading stage, "[g]eneral factual allegations of injury resulting from a defendant's conduct may suffice'... to meet the injury in fact requirement for constitutional standing." Delorme v. United States, 354 F.3d 810, 815-16 (8th Cir. 2004) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Generally, however, the plaintiff must indicate "who suffered an injury, what the injury is, or who caused the injury alleged[.]" Id.; see also Heide v. F.A.A., 110 F.Appx. 724, 726 (8th Cir. 2004) (stating that "generalized statements" which "fail[ed] to identify with particularity any injury... suffered... [wa]s insufficient to establish standing[.]").


I. Government's Liability ...

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