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Parker v. United States

United States District Court, D. Nebraska

October 11, 2018

SAMONE T. PARKER, Individually and as Special Administrator of the Estate of Tonya L. Drapeau, deceased; Plaintiff,
v.
THE UNITED STATES OF AMERICA, VISTA STAFFING SOLUTIONS, INC., NEVINE MAHMOUD, M.D.; and ROBIN HARRIS, R.N.; Defendants.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge.

         This matter is before the Court on the Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, ECF No. 49, filed by Defendant United States of America (Government), and the Motion to Deny or Defer Ruling on the Government's Motion, ECF No. 63, filed by Plaintiff Samone Parker. For the reasons stated below, the Motions will be denied.

         BACKGROUND

         The following facts are those alleged in the Amended Complaint, ECF No. 42, and assumed true for purposes of the pending motions.

         Early in the morning on March 21, 2016, Tonya Drapeau went to the emergency department at Winnebago Hospital in Winnebago, Nebraska-a federally operated medical facility and part of the Great Plains Area Indian Health Service. When she arrived, Drapeau stated she was having difficulty breathing. Dr. Nevine Mahmoud; Robin Harris, a registered nurse; and Dena Neiman, a nurse practitioner, attended to Drapeau and evaluated her condition. They observed that Drapeau's heart rate and respiratory rate were high and collectively diagnosed her with anxiety hyperventilation. They did not order or perform any laboratory tests or other tests to measure Drapeau's blood sugar and she was discharged from the hospital.

         After Drapeau was discharged, Dr. Mahmoud, Harris, and Nieman each reviewed Drapeau's medical history to ensure their initial evaluation and diagnosis was accurate. Although Drapeau's medical records reflected that she was diabetic with a history of experiencing diabetic ketoacidosis, Dr. Mahmoud, Harris, and Nieman did not attempt to contact her to notify her that she may be suffering from diabetic ketoacidosis rather than anxiety hyperventilation.

         Later in the afternoon, Drapeau returned to Winnebago Hospital in an ambulance and in critical condition. After laboratory testing revealed that her blood sugar level was dangerously high and that she was suffering from diabetic ketoacidosis, Drapeau was transported to a medical center in Sioux City, Iowa. She died two days later from diabetic ketoacidosis.

         On January 26, 2017, Parker submitted a claim to the United States Department of Health and Human Services (DHHS) under 28 U.S.C. § 2675(a) asserting the Government was liable for Dr. Mahmoud's, Harris's, and Neiman's alleged negligence which caused Drapeau's death. DHHS did not make a final disposition of the claim within six months and, on March 20, 2018, Parker filed this wrongful death and survival action pursuant, in relevant part, [1] to the Federal Tort Claims Act, 28 U.S.C. § 1346, 2671 et seq., and Nebraska law, Neb. Rev. Stat. §§ 30-810, 25-1401. According to the Amended Complaint, Parker's wrongful death and survival action is based on three separate counts of negligence for which the Government is liable: negligent failure to diagnose and treat (Count I); negligent failure to warn (Count II); and negligent hiring, training, and supervision (Count III). After the Government filed an Answer, ECF No. 45, it moved to dismiss the Amended Complaint arguing the Court lacks subject-matter jurisdiction over the claims against the Government. ECF No. 49. The Government alternatively argued that the Court should dismiss the claims against the Government under Rule 12(c) or Rule 56 of the Federal Rules of Civil Procedure. Id.

         STANDARD OF REVIEW

         I. Subject-Matter Jurisdiction-Fed. R. Civ. P. 12(b)(1)

         “In order to properly dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), [2] the complaint must be successfully challenged on its face or on the factual truthfulness of its averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990)). “In a facial challenge to jurisdiction, the court presumes all of the factual allegations concerning jurisdiction to be true and will grant the motion only if the plaintiff fails to allege an element necessary for subject matter jurisdiction.” Young Am. Corp. v. Affiliated Comput. Servs., 424 F.3d 840, 843-44 (8th Cir. 2005) (citing Titus, 4 F.3d at 593). In a factual challenge to jurisdiction, “there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Osborn, 918 F.2d at 730. “In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Iowa League of Cities v. EPA, 711 F.3d 844, 861 (8th Cir. 2013) (citing Osborn, 918 F.2d 724, 730). The plaintiff has the burden of proving jurisdiction exists[.]” Kennedy Bldg. Assocs. v. Viacom, Inc., 375 F.3d 731, 745 (8th Cir. 2004) (citing Cty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). “Once the evidence is submitted, the district court must decide the jurisdictional issue, not simply rule that there is or is not enough evidence to have a trial on the issue.” Osborn, 918 F.2d 724.

         II. Judgment on the Pleadings-Fed. R. Civ. P. 12(c)

         A motion under Rule 12(c) for judgment on the pleadings is evaluated under “the same standard used to address a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6).” Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009) (quoting Ashley Cty. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009)).

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To satisfy this requirement, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d 915, 917 (8th Cir. 2015) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at 678), cert. denied, 135 S.Ct. 2941 (2015). The complaint's factual allegations must be “sufficient to ‘raise a right to relief above the speculative level.'” McDonough v. Anoka Cty., 799 F.3d 931, 946 (8th Cir. 2015) (quoting Twombly, 550 U.S. at 555). The Court must accept factual allegations as true, but it is not required to accept any “legal conclusion couched as a factual allegation.” Brown v. Green Tree Servicing LLC, 820 F.3d ...


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