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John A. Brashear v. United States of America

March 9, 2012


The opinion of the court was delivered by: James E. Boasberg United States District Judge


Plaintiff John Brashear is a retired Major General in the United States military who, in 2004, was treated for mild urinary incontinence at Walter Reed Army Medical Center in Washington, D.C. He contends that, over a series of months, medical malpractice by Army doctors left him with total urinary incontinence. Brashear filed a claim with the Army, alleging that negligent care by its doctors had caused his condition. The Army denied the claim, and less than six months thereafter, Brashear filed the instant action against the United States under the Federal Tort Claims Act. Arguing that Brashear did not give the United States 90 days' notice before filing suit, as required by a District of Columbia medical-malpractice statute, the Government has now moved to dismiss the Complaint. The Court finds that Brashear did, in fact, notify the United States of his claim in accordance with District law. It will therefore deny the Motion and allow Brashear to proceed with his suit.


Between June 8 and October 25, 2004, Brashear received medical care at Walter Reed. See Compl., ¶¶ 3-4, 6. One of the doctors there initially observed "a small pinhole-sized hole in MajGen Brashear's urethral sphincter, which [h]e indicated collagen would close." Compl., ¶ 17. According to the Complaint, the doctor, facing resistance from the clogged needle he was using, forced a large amount of collagen into Brashear's urethral sphincter. Id., ¶¶ 18-20. Soon after the procedure, Brashear began leaking much more heavily than he had beforehand. Id., ¶ 23. A couple of months later, a different doctor, who was present at the first procedure, noted that a second, much larger hole had appeared in Brashear's urethral sphincter since the previous injection. Id., ¶ 25. In spite of attempts to close the hole with a second and third collagen injection, Brashear's heavy leakage continued, ultimately leaving him totally incontinent. Id., ¶¶ 30-31.

Within two years of the alleged medical malpractice, Brashear filed a claim with the Army "for personal injuries allegedly sustained as a result of negligent medical care provided to [him] by Government health care providers at Walter Reed Army Medical Center (WRAMC) .." See Opp., Exh. 1 (Letter from Chief of Army's Tort Claims Division to Brashear's counsel). On December 8, 2010, the Army denied the claim, finding no evidence that WRAMC doctors deviated from the appropriate standard of care. Id. The Army informed Brashear that, if he wished to sue, he must do so within six months or forfeit his claim forever. Id.; see also 28 U.S.C. § 2401(b) (FTCA claim barred unless filed "within six months after date of mailing . of final denial of the claim by the agency to which it was presented").

Brashear filed the instant suit on June 3, 2011 -- just under six months from the date the Army denied his claim. The action is brought against the United States under the Federal Tort Claims Act, 28 U.S.C. § 2671, which waives the United States's sovereign immunity for negligent acts committed by its agents within the scope of their employment. Compl., ¶ 1. The United States has now moved to dismiss the case for lack of subject-matter jurisdiction or failure to state a claim.

II.Legal Standard

In evaluating Defendant's Motion to Dismiss, the Court must "treat the complaint's factual allegations as true . . . and must grant plaintiff 'the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). This standard governs the Court's considerations of Defendant's Motion under both Rules 12(b)(1) and 12(b)(6). See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ("in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader"); Walker v. Jones, 733 F.2d 923, 925-26 (D.C. Cir. 1984) (same). The Court need not accept as true, however, "a legal conclusion couched as a factual allegation," nor an inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986) (internal quotation marks omitted).

To survive a motion to dismiss under Rule 12(b)(1), Plaintiff bears the burden of proving that the Court has subject matter jurisdiction to hear his claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). A court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). For this reason, "'the [p]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in original)).

Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court "may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens, 402 F.3d at 1253; see also Venetian Casino Resort, L.L.C. v. E.E.O.C., 409 F.3d 359, 366 (D.C. Cir. 2005) ("given the present posture of this case -- a dismissal under Rule 12(b)(1) on ripeness grounds -- the court may consider materials outside the pleadings").

Rule 12(b)(6) provides for the dismissal of an action where a complaint fails "to state a claim upon which relief can be granted." When the sufficiency of a complaint is challenged under Rule 12(b)(6), the factual allegations presented in it must be presumed true and should be liberally construed in plaintiff's favor. Leatherman v. Tarrant Cty. Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993). The notice pleading rules are "not meant to impose a great burden on a plaintiff," Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and he or she must thus be given every favorable inference that may be drawn from the allegations of fact. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 584 (2007). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, Twombly, 550 U.S. at 555, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation omitted). Plaintiff must put forth "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Though a plaintiff may survive a 12(b)(6) motion even if "recovery is very remote and unlikely," Twombly, 550 U.S. at 555 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the facts alleged in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 555.


Under the D.C. Medical Malpractice Proceedings Act of 2006 (MMPA), D.C. Code § 16-2801 et seq., any person who plans to file a medical-malpractice suit in D.C. Superior Court is required to give the intended defendant 90 days' notice before so doing. See D.C. Code § 16-2802(c). Defendant contends both that this statute applies to the FTCA claim here and that Plaintiff failed to comply with the notice requirement; consequently, his case should be dismissed for failure to state a claim or for lack of subject-matter jurisdiction. See Mot. at 1.

In order to resolve Defendant's Motion to Dismiss, the Court must first determine whether the notice provision of the MMPA applies to FTCA actions in federal court. If so, the Court must then evaluate whether Plaintiff adequately complied with the ...

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