The opinion of the court was delivered by: Reggie B. Walton United States District Court Judge
This matter is before the Court on the motion of defendant, the United States of America ("United States"), for dismissal, or alternatively, summary judgment. The plaintiff opposes the motion, but defendant Marjorie F. Canby has not commented on it.*fn1
On May 25, 2004, the plaintiff filed this action with the United States Court of Federal Claims pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (2000), alleging that the United States, as a result of action or omissions of the Department of the Navy and its employee, Marjorie F. Canby, a medical doctor, are liable for negligently performing a "cataract extraction on his right eye" at the United States Naval Hospital on the territory of Guam, during which they "failed to follow generally accepted medical standards," which culminated in the plaintiff's permanent vision loss in his right eye. Verified Complaint ("Compl.") at ¶¶ 1-8. The case was transferred to this Court from the Court of Federal Claims on July 30, 2004. The defendants answered the complaint on May 24, 2005, denying liability and raising several defenses, while failing to address the appropriateness of this Court as the proper venue for the litigation of this action. See generally Federal Defendant's Answer to Complaint ("Answer").
On July 2, 2007, the United States filed the motion which is the subject of this opinion, seeking to dismiss this action, or alternatively, for summary judgment. Defendant's Motion to Dismiss, or Alternatively, for Summary Judgment ("Def.'s Mot.") at 1. In its motion, the United States argues that either dismissal is warranted because this Court is not the proper venue for this action, whereas Guam is, or summary judgment is warranted because the plaintiff has failed to demonstrate that the defendant breached the standard of care, a requisite for maintaining his claim. Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss, or Alternatively, for Summary Judgment ("Def.'s Mem.") at 5-8. Specifically, the defendant states that the only concern regarding the plaintiff's medical treatment that is expressed by the plaintiff's expert on the standard of care "focuses exclusively on the actions of the medical personnel at the Guam Seventh Day Adventist Clinic," a "clinic [that] is not affiliated with the Naval Hospital and is not a party to this suit," and therefore summary judgment is proper because the plaintiff has not established a breach of the standard of care by the United States or its personnel. Defendant's Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Def.'s Reply") at 3-5. In opposition, the plaintiff contends that the defendant waived its right to object to venue under Federal Rule of Civil Procedure 12(h)(1) because it neglected to raise the challenge in its complaint or an initial responsive pleading. Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Pl.'s Opp'n") at 2-3. As to the appropriateness of summary judgment, the plaintiff states that it has proffered evidence sufficiently "establish[ing] the applicable standard of care," as well as "the requisite expert testimony that the defendant violated this standard of care, and that it was that deviation that caused the plaintiff's injury," so accordingly, based on the remaining "triable issues of fact," summary judgment is improper. Id. at 5. For the foregoing reasons, the Court concludes that the plaintiff cannot maintain a claim against the defendants under the Federal Tort Claim Act based on the evidence in the record, and summary judgment to the defendants must be granted.
Viewing the light most favorable to the plaintiff, the facts are as follows.
On August 1, 2001, the plaintiff "underwent eye surgery . . . to have a cataract extracted from [his] right eye." Pl.'s Opp'n, Affidavit of Phillip Ross ("Ross Aff.") at 1. "The surgery was performed by members of the United States Navy at the United States Naval Hospital on Guam." Id. Defendant Canby, who was affiliated with the Guam Naval Hospital, performed the surgery. Pl.'s Opp'n at 1; see also Def.'s Mem., Exhibit ("Ex.") 1 (Deposition of Phillip Edgar Ross ("Ross Dep.")) at 33. At the time of the surgery, defendant Canby determined that the plaintiff's right eye "retained lens fragments . . . but elected to leave them" in the plaintiff's eye. Pl.'s Opp'n, Ex. 1 (January 25, 2006 Letter from David S. Friedman, M.D. ("Pl.'s Expert Opinion")) at 3. Following the cataract surgery, the plaintiff's eye pressure increased, however, defendant Canby failed to employ any immediate post-surgery procedures to lessen the pressure in the plaintiff's right eye. Id. Rather, she advised the plaintiff to wait to "see if the eye pressure improve[d]" on its own. Id. Defendant Canby also referred the plaintiff to Dr. Kim, who was affiliated with the Seventh-Day Adventist Clinic, for post-surgery care. Def.'s Mem., Ex. 1 (Ross Dep.) at 33-34.*fn2
On August 7, 2001, Dr. Kim wrote to defendant Canby, stating that the plaintiff was scheduled for vitrectomy surgery on that day. Def.'s Mem., Ex. 8 (August 7, 2001 Letter from John Kim, M.D., to Margie Canby, M.D.) at 1. For the next several weeks, Dr. Kim continued to write defendant Canby to keep Canby apprised of the plaintiff's care. Def.'s Mem., Ex. 8 (August 8, 12, 14, 15, and 20, 2001 Letters from John Kim, M.D., to Margie Canby, M.D.) at 2-6. On August 24, 2001, Dr. Kim wrote defendant Canby, reporting that he discussed with the patient "the possibility of further surgery," pending the plaintiff's anticipated consultation with another doctor. Id., Ex. 8 (August 24, 2001 Letter from John Kim, M.D., to Margie Canby, M.D.) at 7.*fn3 Two days later, Dr. Kim again wrote defendant Canby, stating that a third surgery was "probabl[e]." Id., Ex. 8 (August 26, 2001 Letter from John Kim, M.D., to Margie Canby, M.D.) at 8. At some point during the plaintiff's treatment, which was being overseen by Dr. Kim at the time, a treating doctor applied gas to the plaintiff's right eye in an effort to release the pressure in that eye. Pl.'s Opp'n, Ex. 1 (Pl.'s Expert Opinion) at 3. On August 29, 2001, Dr. Kim performed the vitrectomy surgery on the plaintiff's right eye. Id., Ex. 8 (September 16, 2001 Letter from John Kim, M.D., to Margie Canby, M.D.) at 9. In a September 23, 2001 letter, Dr. Kim reported to defendant Canby about the plaintiff's status after the vitrectomy surgery and informed her that "[the patient] will make an [appointment] with [Canby] at the Naval Hospital in [two] weeks for [an intraocular pressure] check." Def.'s Mem., Ex. 8 (September 23, 2001 Letter from John Kim, M.D., to Margie Canby, M.D.) at 9.
After numerous consultations following his treatment in Guam, the plaintiff discovered that he had permanent, irreparable optic nerve damage and a loss in peripheral vision, which he attributes to not receiving the vitrectomy surgery earlier following his initial cataract surgery performed by defendant Canby. Def.'s Mem., Ex. 1 (Ross Dep.) at 42-44; see also Compl. ¶¶ 5-6. The plaintiff filed an administrative claim regarding his permanent eye damage with the Department of the Navy on November 18, 2002, seeking monetary damages, which the Department of the Navy denied on March 18, 2004. Compl. ¶ 2.
Conversion of a motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6)*fn4 into a motion for summary judgment under Rule 56 is proper where "all parties both [had] a 'reasonable opportunity to present all material made pertinent to such a motion by Rule 56' and a chance 'to pursue reasonable discovery.'" Taylor v. FDIC, 132 F.3d 753, 765 (D.C. Cir. 1997) (quoting Fed. R. Civ. P. 12(b)(6)) (citation omitted); see Fed. R. Civ. P. 12(b) & 56. "Given that the [defendant's] motion [was] in the alternative for summary judgment and that the parties had the opportunity to submit . . . materials in support and in opposition, it is not unfair to [the plaintiff] to treat the decision as [one for] summary judgment." Americable Int'l v. Dep't of Navy, 129 F.3d 1271, 1274 n. 5 (D.C. Cir.1997). The Court will therefore convert the motion into one for summary judgment and consider the record evidence submitted by both parties.
To grant a motion for summary judgment under Rule 56(c), this Court must find that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Bayer v. U.S. Dep't of Treasury, 956 F.2d 330, 333 (D.C. Cir.1992). However, the non-moving party cannot rely on "mere allegations or denials . . . , but . . . must set forth specific facts showing that there [are] genuine issue[s] for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted). Under Rule 56(c), if a party fails to "establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial," summary judgment is warranted. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment bears the burden of establishing the absence of evidence that supports the non-moving party's case. Id.
"Under the Federal Tort Claims Act, the United States is liable in damages to an injured party for injuries arising from a negligent act or omission of its employees, if a private person would be liable under the law of the place where the act or omission occurred." Rutledge v. United States, Civil No. 06-00008, 2008 WL 3914965 at *13 (D. Guam 2008) (citing 28 U.S.C. § 1346(b) (2000)). The law of the jurisdiction where the alleged act or omission occurred governs the applicable ...