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Hoehn v. United States

August 8, 2002

MARIE ROSALIND SALCEDO HOEHN, INDIVIDUALLY AND AS MOTHER OF HER MINOR DAUGHTER VICTORIA HOEHN, BY AND THROUGH HER CO-GUARDIANS MARIA MIKITKA AND PRECIOSISIMA SALCEDO, AND GARY HOEHN, FATHER OF HIS MINOR DAUGHTER VICTORIA HOEHN, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

This negligence action under the Federal Tort Claims Act ("FTCA") arises out of an automobile accident in which a patient at Walter Reed Army Medical Center ("WRAMC") lost control of her vehicle while driving home from the hospital following chemotherapy treatment, and collided with a vehicle in which plaintiffs Marie Rosalind Salcedo Hoehn and Victoria Hoehn were passengers. Plaintiffs allege that WRAMC was negligent in permitting the patient, allegedly without adequate warning, to drive home following the administration of intravenous drugs allegedly known to cause drowsiness.

Defendant United States of America moves to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. The case, and defendant's motion, raises a novel and important issue of first impression under District of Columbia law: does a hospital or physician owe a duty to the general public either to control a heavily medicated patient by preventing her from driving an automobile upon discharge or to warn the patient about the danger of driving? For the reasons stated below, the motion is granted in part and denied in part.

FACTUAL AND PROCEDURAL BACKGROUND

Emiko Wiscott, a seventy-year-old breast cancer patient at WRAMC, was scheduled to receive her first chemotherapy treatment on October 30, 1998. Complaint ¶ 9. A week beforehand, Mrs. Wiscott's oncologist allegedly told her that it was not necessary for her to arrange for alternate transportation following her October 30 chemotherapy session, and that she could drive herself home "if she felt OK." Id.

On October 29, 1998, Mrs. Wiscott arrived at WRAMC to have a "PICC line" inserted in her arm so that medications could be administered intravenously during her chemotherapy treatment the next day. Id. Mrs. Wiscott allegedly was again informed by the staff at WRAMC on that date that she could drive her car home after her chemotherapy treatment on October 30. Id.; see also Wiscott Dep. (August 21, 2000) at 37.

Mrs. Wiscott received her chemotherapy treatment at WRAMC on October 30, including, via intravenous infusion, the drugs ativan and zofran. See Pls.' Opp., Ex. F. Following her treatment, Mrs. Wiscott's oncologist told her to go home. Wiscott Dep. (August 21, 2000) at 38-40. No one warned Mrs. Wiscott not to drive or asked how she was going to return to her home. Id. at 39. Although she had previously planned to take a bus home from the hospital, Mrs. Wiscott believed that she had medical approval to drive. Id. at 40. *fn1 Accordingly, she proceeded to drive her vehicle toward her home in Gambrills, Maryland, located about forty miles from the hospital. Compl. ¶¶ 9, 10.

Mrs. Wiscott ultimately blacked out and lost control of her vehicle, causing it to cross into the opposite lane of traffic. See Compl. ¶ 10; Wiscott Dep. (August 21, 2000) at 65. Mrs. Wiscott's vehicle collided with a vehicle in which Marie Rosalind Salcedo Hoehn and Victoria Hoehn were passengers. Id. ¶ 10.

As a result of the accident, Marie Hoehn sustained a traumatic brain injury. Id. ¶ 12. She is permanently impaired, mentally and physically, is confined to a wheelchair, and is unable to walk, feed herself, or control her bowel or bladder. Id. Victoria Hoehn, her minor daughter, sustained relatively minor physical injuries from which she has recovered. However, she allegedly continues to suffer from serious emotional trauma as a result of the accident. Id. ¶ 13; see also Pls.' Ex. B.

Marie Hoehn (by her co-guardians), individually and on behalf of Victoria Hoehn, and Gary Hoehn, on behalf of his daughter Victoria Hoehn, have brought this complaint against the United States under the FTCA, 28 U.S.C. §§ 2671 et seq., alleging that WRAMC negligently (1) failed to prohibit Mrs. Wiscott from driving her motor vehicle, (2) failed to suggest alternate transportation for her, and (3) permitted Mrs. Wiscott to drive her motor vehicle. Compl. ¶ 11. Marie Hoehn seeks damages in the amount of fifteen million dollars, and Victoria Hoehn seeks damages in the amount of one million dollars.

Defendant, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, has moved to dismiss the complaint, in part, for lack of subject matter jurisdiction. In addition, pursuant to Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure, defendant has moved for summary judgment for failure to state a claim upon which relief may be granted.*fn2

ANALYSIS

I. Lack of Subject Matter Jurisdiction

Defendant presents two arguments concerning subject matter jurisdiction. First, defendant contends that Marie Hoehn failed to present a proper administrative claim. Second, defendant argues that, in the event that the Court finds that an administrative claim was properly presented, any damages Marie Hoehn seeks in excess of those sought in the administrative claim should be dismissed or struck.

A. Failure to Present an Administrative Claim

In its moving papers, defendant contends that Marie Hoehn did not present a proper administrative claim because Gary Hoehn apparently signed the administrative form, Standard Form 95 ("SF-95"), on Marie Hoehn's behalf, and was not authorized to do so under the FTCA. Def.'s Mot. to Dismiss at 4-5. Plaintiffs, in response, have submitted an affidavit from their attorney, Michael Abelson, explaining that he signed the SF-95 with Marie Hoehn's name on her behalf, and then added his initials, along with those of Gary Hoehn. Aff. of Michael A. Abelson (executed September 19, 2001). In its reply, defendant does not dispute plaintiffs' account of the events, but questions how Marie Hoehn could have authorized Mr. Abelson to sign for her when she was allegedly reduced to "vegetative functioning."*fn3 Def.'s Reply at 1-2.

Proper presentation of an administrative claim is, of course, mandatory before an action may proceed under the FTCA. See 28 U.S.C. § 2675(a). A claim is properly presented if the injured person, his duly authorized agent, or legal representative signs the SF-95 or other written demand. 28 C.F.R. § 14.3(b); see also Odin v. United States, 656 F.2d 798, 804 n.22 (D.C. Cir.1981). Here, the only evidence before the Court is that Mr. Abelson signed the SF-95 upon authorization from his client, Marie Hoehn. Defendant has presented little more than ...


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