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Burton v. United States

November 9, 2009


The opinion of the court was delivered by: Royce C. Lamberth Chief Judge United States District Court



On February 20, 2003, Samuel E. Burton, a retired United States Coast Guard captain who had recently had his leg placed in a cast at the Walter Reed Army Medical Center to treat a rupture of his Achilles tendon, died from a massive pulmonary embolism. He was convalescing on his living-room couch when a blood clot moved from his leg to his lungs and blocked both arteries, cutting off his blood circulation. Alone in his home, Capt. Burton rose to his feet, staggered toward his front door in search of aid, and collapsed on the floor, dead, after only two or three steps.

Family members later learned that Capt. Burton had developed deep venous thrombosis-a blood clot in the deep veins of his leg-as a consequence of casting. They also learned, much too late, that Capt. Burton had suffered tell-tale warning signs of deep venous thrombosis-chest pain and short-windedness-and that if immediate medical attention had been sought, Capt. Burton would likely be alive and well today.

Capt. Burton's death was an unnecessary tragedy. His doctors never warned him that deep venous thrombosis and pulmonary embolus could result from casting. They never told him what the warning signs were that such thrombosis might be developing and leading to a deadly pulmonary embolism if medical attention was not quickly sought. If only Capt. Burton had known what to watch for-if only his doctors had warned him-his wife would have her husband and his son would have his father. As discussed below, the United States is therefore liable for medical malpractice based on its failure to warn Capt. Burton of the risks and warning signs of deep venous thrombus and pulmonary embolus.


A. Medical Terminology

Venous thromboembolism ("VTE") is a term used to describe both pulmonary embolus ("PE") and deep venous thrombosis ("DVT"). See A.D.A.M. MEDICAL ENCYCLOPEDIA, Deep Venous Thrombosis, (last visited Nov. 9, 2009) [hereinafter Deep Venous Thrombosis]; A.D.A.M. MEDICAL ENCYCLOPEDIA, Pulmonary Embolus, (last visited Nov. 9, 2009) [hereinafter Pulmonary Embolus]; (Trial Tr. vol. 2, 35:17--:25, Mar. 10, 2009).

DVT is the formation of "a blood clot in one of the deep veins of the legs." Pulmonary Embolus, supra; see also Deep Venous Thrombosis, supra. A proximal DVT is one that occurs above the knee; a distal DVT is one that occurs below. (Trial Tr. vol. 1, 109:5--:11, Mar. 9, 2009.)

PE is "a blockage of an artery in the lungs by," inter alia, "a blood clot," the most common type of which is a clot associated with DVT. Pulmonary Embolism, supra.

B. Facts

On January 10, 2003, Captain Samuel Burton, a retired officer of the United States Coast Guard, ruptured his Achilles tendon while playing basketball. His wife, Doshia Daniels Burton, took Capt. Burton to the emergency room at the Walter Reed Army Medical Center (WRAMC) in the District of Columbia for treatment of his injury. Capt. Burton received an orthopedic consultation with Benjamin Kyle Potter, M.D., who presented Captain Burton with two treatment options: surgical repair, which involved suturing the tendon back together, or casting of the leg, which would allow the tendon to heal itself. (Trial Tr. vol. 1, 38:7--:21.) Capt. Burton elected the casting option. (Id. at 40:18--41:3.) The plan was to first place a soft splint on the leg, to allow the initial swelling from the injury to subside, and then after a few days to place the lower leg in a hard cast starting just below the knee and ending just above the toes. With both the splint and the cast, the leg was initially immobilized in a "gravity equinus" position, that is, with the toes pointing down. This was intended to shorten the calf muscles as much as possible to allow the ruptured portions of the Achilles tendon to begin to heal themselves. The plan was to keep the leg casted for a total of about eight weeks, changing the cast periodically to gradually bring the toes up from the toe-down position. (Id. at 38:7--:21.)

Dr. Potter placed Capt. Burton's left leg in a splint on January 10, which was replaced with a hard cast on January 15. (Trial Tr. vol. 3, 20:9--:19, Mar. 11, 2009.) On February 7, 2003, Captain Burton returned for his three-week follow-up appointment, where he was given a new cast. Capt. Burton complained of swelling at night, which Dr. Potter indicated was normal. Dr. Potter also checked Capt. Burton's leg for swelling, tenderness, or popliteal cords, all of which would signify the presence of DVT; none were found. Dr. Potter also noted that Capt. Burton had normal sensation, pulse, and capillary refill in his lower leg, and that Capt. Burton's peri-ankle swelling was in a normal range. (Trial Tr. vol. 1, at 47:7--:17, 49:3--:17, 50:10--:14, 51:1--:6, 106:19--107:15, 107:21--108:3, 108:13--:23.) Mrs. Burton was present at all three visits. (Id. at 41:10--:15; Trial Tr. vol. 2, 217:5--217:10; 224:18--225:15.) There are no records of warnings having been given to the Burtons regarding VTE during these visits. (Trial Tr. vol. 1, 30:13--:24.)

On February 9, one day after he had walked some distance through snow on crutches, Capt. Burton experienced pain in his chest and became "absolutely winded" after walking up seven steps in his home; he rested and "breathed a great sign of relief," saying: "That was scary." (Trial Tr. vol. 3, 21:11--:25.) He and Mrs. Burton attributed these symptoms to his physical exertion on crutches and relieved the pain with ibuprofen. (Id. at 12:19--:24, 21:11--:25.) On February 20, Capt. Burton "got on his knees and pulled a box out of a cubbyhole in the closet. He again became winded." (Id. at 22:1--:8.) The Burtons "again related it to the fact that he had been virtually inactive for eight weeks." (Id.) Later that day, Capt. Burton suffered a massive PE and died. (Id. at 20:21.)


A. Jurisdiction Is Proper

The defendant defends (without detail) that the plaintiffs' claims are "barred for lack of jurisdiction." (Answer 6.) The defendant also, however, makes the more specific jurisdictional defense that the "[p]laintiffs failed to exhaust their administrative remedies." (Id.) Although the defendant has not pressed these defenses at trial, the Court considers them as averred in the defendant's Answer. Both defenses fail.

1. The Court Has Personal Jurisdiction Over the United States

The general standard for determining whether a court has personal jurisdiction over a defendant is whether "maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Where the United States is the defendant, such notions are not offended so long as the United States is properly served with notice of suit. See, e.g., Lathrop v. Unidentified, Wrecked & Abandoned Vessel, 817 F. Supp. 953, 961 (1993) (noting that the court "lacks in personam jurisdiction over the United States" but that such defect would be remedied "in the event that the United States has been properly served"); In re McDougald, 1991 WL 635259, at *1 (S.D. Ga. Apr. 25, 1991) (noting that the court has personal jurisdiction where "the United States has received adequate notice of the pendency of [an] action and will [therefore] not be prejudiced in maintaining its defense on the merits").

To properly serve the Unites States, a potential plaintiff must, within 120 days, (1) "deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought," (2) "send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office," and (3) "send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C." FED. R. CIV. P. 4(i)(1)(A)--(B). In this case, the United States has not pleaded that it did not receive notice or that it received defective notice and the Court has no reason to suspect that such notice was not received or was defective. The Court therefore finds that the plaintiffs did indeed satisfy the aforementioned requisites of proper service and that it has personal jurisdiction over the United States.

2. The Court Has Subject-Matter Jurisdiction

The Federal Tort Claims Act (FTCA)*fn1 waives sovereign immunity in this case, granting the Court subject-matter jurisdiction, which is not otherwise stripped by the Feres doctrine. Furthermore, the plaintiffs have exhausted their administrative remedies, satisfying the jurisdictional prerequisite of administrative-remedy exhaustion. The Court therefore has subject-matter jurisdiction over this case.

a. The FTCA Waives Sovereign Immunity in This Case

It is a well-recognized principle of sovereign immunity that "the United States may not be sued without its consent." 14 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3654 (3d ed. 1998). The FTCA, however, partially grants such consent:

[T]he district courts... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for... personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

§ 1346(b)(1). This case falls within the requirements of the FTCA.

The plaintiffs commenced this action against the United States (see Compl.) for money damages (Compl. ¶ 42). The plaintiffs' claim accrued in 2003 (long after January 1, 1945). (See Compl. ¶¶ 8--30.) The plaintiffs bring their wrongful death and survival actions based on the alleged negligence of medical personnel employed by the Government, where such negligence occurred in the scope of such employment. (See Compl. ¶¶ 31--40.) It is plain that were the defendant not the United States, but instead a private person, such person would not be immune from suit. Therefore, the Court has jurisdiction under § 1346(b)(1).

b. The Feres Doctrine Does Not Strip the Court of Subject-Matter Jurisdiction in This Case

"Sovereign immunity is jurisdictional in nature." FDIC v. Meyer, 510 U.S. 471, 475 (1994), quoted in Trudeau v. FTC, 456 F.3d 178, 185 (D.C. Cir. 2006). "The Feres doctrine, which limits the scope of the FTCA's waiver of sovereign immunity, is likewise jurisdictional." Brown v. United States, 151 F.3d 800, 804 (8th Cir. 1998); accord Schnitzer v. Harvey, 389 F.3d 200, 202 (D.C. Cir. 2004).

In Feres v. United States, the Supreme Court recognized an exception to the FTCA's broad waiver of sovereign immunity in tort actions, holding that "the Government is not liable... for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." 340 U.S. 135, 146 (1950). This Circuit has developed a three-part incident-to-service test to determine whether an activity giving rise to an injury is, in fact, "incident to service" under Feres. Id. Courts are to consider "the injured service member's duty status, the site of the injury[,] and the nature of the activity engaged in by the service member at the time of his injury." Schnitzer, 389 F.3d at 203 (citing Verma v. United States, 19 F.3d 646, 648 (D.C. Cir. 1994)). The Supreme Court has cautioned, however, that "[t]he Feres doctrine cannot be reduced to a few bright-line rules" and that "each case must be examined in light of" development of the doctrine in caselaw. United States v. Shearer, 473 U.S. 52, 57 (1985). The Court will therefore apply the incident-to-service factors with particular consideration given to medical-malpractice precedent of this Circuit.

This District held only one year ago that "[m]edical treatment of military personnel at a military hospital undoubtedly satisfies the 'incident to service' requirement." Singleton v. Dep't of the Army, No. 07-CV-303 (AK), 2007 WL 2601934, at *3 (D.D.C. Sept. 6, 2007). Singleton relied on an earlier case in our District, Antoine v. United States, which held that the mere fact that the plaintiff brought "a tort claim against the Government for injuries alleged to have occurred due to the negligence of military doctors working at military medical facilities and performing official duties" necessitated application of the Feres doctrine to bar recovery. 791 F. Supp. 304, 306 (D.D.C. 1992); see also Mikso v. United States, 453 F. Supp. 513, 514 (D.D.C. 1978) ("[T]ortious acts against an active duty serviceman which are alleged to have occurred solely at the hands of military doctors working at military medical facilities and performing official duties... [are] a sufficient basis on which to invoke Feres immunity.").

Singleton, Antoine, and Mikso, all concerned injuries suffered by active-duty servicemen, weighing heavily on incident-to-service factor one in favor of Feres immunity. Where the injury has been suffered by veterans, however, the cases have come out differently. In Thornwell v. United States, the plaintiff had, without his knowledge or consent, been administered lysergic acid diethylamide ("LSD") as part of a covert test of the effects of the psychedelic drug on interrogation subjects. 690 F.2d 215, 346 (D.C. Cir. 1982). The test took place while the plaintiff was in military service. Id. Upon his discharge from service, the plaintiff was never warned of the harmful effects of his LSD exposure. Id. The District Court concluded that although Feres barred any recovery relating to in-service LSD exposure, it did not preclude suit alleging post-discharge failure to warn. Id. at 347--53. Cf. Lombard v. United States, 690 F.2d 215, 220 (D.C. Cir. 1982) (distinguishing Thornwell when, in Lombard, a duty to warn attached before discharge). See also United States v. Brown, 348 U.S. 110 (1954) (allowing an action to proceed concerning post-discharge malpractice, even where such malpractice was preformed on an injury suffered while in service), cited in Lombard, 690 F.2d at 229--30 (Ginsburg, J., dissenting) ("[F]ederal courts have recognized a claim for negligent post-discharge failure to warn....").

The instant case is more similar to Thornwell and Brown than Singleton, Antoine, or Mikso. Capt. Burton suffered his injury after having retired from the U.S. military; the failure to warn occurred totally after Capt. Burton had been discharged from service. Accordingly, factor one counsels against finding that Capt. Burton's death was incident to his military service under Feres. Additionally, the site of the injury was a private basketball court, not the battlefield. Factor two thus also counsels against Feres immunity. Finally, the nature of the activity giving rise to the injury-a basketball game played not on a military base, not during downtime by active-duty military members, etc.-was totally unrelated to military service. Factor three thus also counsels against Feres immunity. Because all three factors point toward Capt. Burton's injury as not being incident to his military service, the Feres doctrine does not preclude the Court from exercising jurisdiction over this matter. The plaintiffs may proceed.

3. The Plaintiffs Have Exhausted Administrative Remedies

"The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies," McNeil v. United States, 508 U.S. 106, 113 (1993), and the Court of Appeals for the District of Columbia Circuit treats "the FTCA's requirement of filing an administrative complaint with the appropriate agency prior to instituting an action as jurisdictional," Simpkins v. District of Columbia, 108 F.3d 366, 371 (D.C. Cir. 1997). Specifically, the FTCA provides in relevant part that an FTCA action "shall not be instituted... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency." § 2675(a). Importantly, "[t]he failure of an agency to make final disposition of a claim within six months after it is filed shall... be deemed a final denial of the claim." Id.

The plaintiffs plead-and the defendant admits-that the plaintiffs filed an administrative claim with the Walter Reed Army Medical Center's (WRAMC) Office of the Center Judge Advocate (OCJA) on February 8, 2005, and that such claim was not heard within six months of such filing. (Compl. ¶ 1; Answer ¶ 1.) It is unclear why the OCJA has not acted. The OCJA handles issues relating to administrative law, see OCJA, WRAMC, Office of the Center Judge Advocate, (last visited Nov. 9, 2009), and, if necessary, could have passed the matter to the Performance Improvement / Risk Management Office (PMRM), which handles medical-malpractice claims, see PMRM, WRAMC, Important Things to Know, (last visited Nov. 9, 2009).

Regardless, the plaintiffs presented their claim administratively to a component of the WRAMC, the agency related to the events giving rise to the plaintiffs' claims, and thus the proper agency from which administrative relief should have been-and was-prayed. Because the agency failed to act within six months, it has, as a matter of law, denied the claim. Having exhausted their administrative remedies, ...

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