Susoeff v. Pamulapati

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 MARK S. SUSOEFF, No. 2:21-cv-00083-MCE-KJN 12 Plaintiff, 13 v. ORDER 14 VEENA PAMULAPATI, M.D., et al., 15 Defendants. [16] 17 Through the present action, Plaintiff Mark S. Susoeff (“Plaintiff”) alleges a 18 professional negligence/medical malpractice cause of action against Defendants Veena 19 Pamulapati, M.D. (“Pamulapati”),1 and the United States of America (the “Government”). 20 Compl., ECF No. 1 (“Compl.”). Presently before the Court is the Government’s Motion to 21 Dismiss for Lack of Jurisdiction on grounds that Plaintiff’s claims fall within the exclusive 22 jurisdiction of the U.S. Court of Appeals for Veterans Claims under the Veterans’ Judicial 23 Review Act, 38 U.S.C. § 511 (“VJRA”). ECF No. 7. 24 According to the Complaint, Plaintiff is a military veteran and qualified to receive 25 medical treatment through the Department of Veterans Affairs (“VA”). Compl. ¶ 2. After 26 fracturing his right forearm and receiving immediate medical treatment at a non-VA 27 facility on April 6, 2019, Plaintiff alleges the following events occurred: 28 1 Defendant Pamulapati was dismissed without prejudice from this action. ECF No. 6. 1 On or before April 11, 2019, [Plaintiff] contacted [his primary medical provider] the VA [C]linic in Yuba City, California [(“VA 2 Clinic”)], concerning his closed fracture of his lower end of the right radius and requested treatment of the same. The VA staff 3 at that time conferred with Dr. Pamulapati, and informed [Plaintiff] that Dr. Pamulapati could not treat him that day, but 4 that they would call [Plaintiff] when someone at the VA [C]linic was available to set his radius and cast it. The VA [C]linic 5 indicated that it would need to obtain approval for such an appointment. From April 11, 2019, and into the weeks that 6 followed, [Plaintiff] attempted making an appointment several times, but the VA failed repeatedly to set an appointment 7 during that time frame. It was not until May 10, 2019, that the VA [C]linic sent a letter to [Plaintiff] to set an appointment for a 8 specialist to treat his fractured right radius. 9 . . . 10 The medical providers at the VA [C]linic took no action to treat [Plaintiff] for his fractured right radius until May 10, 2019, when 11 they first sent [Plaintiff] a letter to schedule what would be his first appointment under the VA system to address the injury, 12 even though [Plaintiff] informed the VA and asked for treatment on April 11, 2019. [Plaintiff] was in immediate need for 13 treatment on April 11, 2019, and he made the VA [C]linic aware of his injury and desire to obtain treatment on that date. 14 [Plaintiff] thereafter continued to seek medical treatment from the VA after April 11, 2019, but the VA [C]linic failed to treat 15 him at that time. . . . [16] Id. ¶¶ 8–11 (internal capitalization removed). Because the VA Clinic did not timely treat 17 or diagnose Plaintiff’s injury, Plaintiff claims that he “suffered serious pain, bodily harm, 18 medical costs, loss of earnings and earning capacity, and other such noneconomic and 19 economic damages.” Id. ¶ 12 . Plaintiff subsequently filed a claim with the VA under the 20 Federal Tort Claims Act (“FTCA”), and on August 27, 2020, the VA denied the claim.2 21 Exs. A–B, Compl. 22 The [VJRA], 38 U.S.C. §§ 511 , 7251 et seq., establishes the exclusive procedure for veterans to challenge decisions of the 23 VA relating to benefits. The VJRA established an Article I court, the U.S. Court of Appeals for Veterans Claims, 24 commonly known as Veterans Court, which has sole authority to review decisions by the VA regional offices and the Board 25 of Veteran's Appeals. Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1021 (9th Cir. 2012) (en banc) 26 (citing 38 U.S.C. §§ 7251 , 7261). Decisions of the Veterans’ Court are reviewable exclusively in the U.S. Court of Appeals [27] 2 Plaintiff’s FTCA claim form asserts nearly identical allegations as the Complaint. Compare 28 Compl. ¶¶ 8–12, with Ex. A, Compl., at 10–11. 1 for the Federal Circuit. Id. (citing 38 U.S.C. § 1792 ). The Act expressly divests all “other courts” of jurisdiction to review 2 benefits issues. 38 U.S.C. § 511 (a). Accordingly, the district courts lack jurisdiction over any claim that would require the 3 court “to determine whether the VA acted properly in handling a veteran's request for benefits.” Veterans for Common 4 Sense, 678 F.3d at 1025 . 5 In Tunac v. United States, 897 F.3d 1197 , 1200–03 (9th Cir. 2018), the Ninth Circuit addressed the relationship between 6 the VJRA and the [FTCA], 28 U.S.C. § 1346 (b)(1), which gives the district courts exclusive jurisdiction over personal injury 7 claims against federal employees. The Tunac court drew a distinction between those claims alleging negligence by 8 individual healthcare employees of the VA, which are cognizable under the FTCA and not barred by the VJRA, and 9 those alleging “administrative negligence” in the denial or administration of benefits. Tunac, 897 F.3d at 1205 . In Tunac, 10 a late veteran's spouse was allowed to proceed under the FTCA on a claim that inadequate treatment by VA healthcare 11 employees constituted medical negligence that caused her husband's death. Id. A related claim, that the veteran's 12 death was caused by the VA's failure to schedule medically necessary appointments and follow-up 13 treatment, was held barred by the VJRA. As to the latter claim, the court reasoned that plaintiff's “allegations do not give 14 rise to a reasonable inference that VA medical professionals breached their duty of care, but rather seek relief for the type 15 of administrative negligence in scheduling appointments that must be channeled through the VJRA.” Id. at 1205–1206. [16] In short, district courts have jurisdiction under the FTCA over 17 claims alleging “negligence by VA healthcare employees,” but claims regarding “negligence in VA operations . . . must 18 proceed under the congressionally-mandated pathway set forth in the [VJRA].” Id. at 1200 . [19] 20 Manning v. United States Dep’t of Veterans Affairs, No. 2:19-cv-00494 TLN AC (PS), [21] 2019 WL 4571947 , at *2–3 (E.D. Cal. Sept. 20, 2019), report and recommendation 22 adopted, 2019 WL 5960126 (E.D. Cal. Nov. 13, 2019) (emphasis added). 23 Here, Plaintiff’s claim that the VA Clinic failed “to provide and/or timely schedule 24 necessary care . . . is precisely the kind of [] claim that the Tunac court described as 25 ‘administrative negligence’ and which therefore falls within the scope of the VJRA.” Id. at 26 *4 (citing Tunac, 897 F.3d at 1203 (“[W]e lack jurisdiction to review whether the VA 27 unreasonably delayed medical care for an individual veteran as a scheduling matter, 28 because such a claim requires review of a benefits decision.”)). In an attempt to allege 1 || medical, rather than administrative, negligence, Plaintiff's Opposition provides 2 | allegations not found in the Complaint or Plaintiffs FTCA claim form, including that 3 | Plaintiff “was seen by a nurse in the [VA Clinic], on a specific date, and that his doctor 4 | and nurse made the affirmative medical care decision to refrain from setting his fracture 5 | at that time, instead opting for follow-up treatment later, which they also failed to order.” 6 | ECF No. 9, at 5-6. However, the Complaint “does not mention an examination of 7 | [P]laintiff's arm or any medical decisionmaking by a nurse or Dr. Pamulapati,” only that 8 || the VA Clinic failed to timely schedule an appointment. ECF No. 10, at 2; see generally 9 | Compl. I] 8-11. “Plaintiff's statements in his opposition brief cannot amend the 10 | Complaint...” Fabbrini v. City of Dunsmuir, 544 F. Supp. 2d 1044, 1050 (E.D. Cal. 11 | 2008). 12 For the foregoing reasons, the Government’s Motion to Dismiss for Lack of 13 | Jurisdiction, ECF No. 7, is GRANTED without leave to amend.*:* The Clerk of Court is 14 | directed to close the case. 15 IT |S SO ORDERED. 16 | Dated: January 27, 2022 Eo 17 f{ late rf LEK. ‘8 SENIOR UNITED STATES DISTRICT JUDGE [25] 26 submitted Se oral argament anos XG material assistance, the Court ordered this matter 27 4 The Court notes that although it lacks jurisdiction to hear Plaintiff's case, that does not necessarily mean he is without remedy in another forum, i.e., Plaintiff may pursue his claim with the U.S. 28 | Court of Appeals for Veterans Claims.