                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



JOHN A. BRASHEAR,

       Plaintiff,
               v.                                         Civil Action No. 11-1026 (JEB)
UNITED STATES OF AMERICA,

       Defendant.


                                 MEMORANDUM OPINION

       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.

I.     Background

       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., ¶

                                                1
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.



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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)).
                                                 3
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.




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III.   Analysis

       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 requirement or

otherwise qualifies for an exception in the statute.

       A. The FTCA and the MMPA

       Plaintiff’s Complaint alleges that the United States is liable under the FTCA for medical

malpractice committed by its agents – i.e., the doctors at Walter Reed. The FTCA waives

sovereign immunity for tortious conduct committed by employees of the United States in the

scope of their employment. The waiver is, however, a limited one. The United States may only

be held liable “in the same manner and to the same extent as a private individual under like

circumstances.” 28 U.S.C. § 2674. In determining liability, courts must apply “the law of the

place where the act or omission occurred.” Id., § 1346(b)(1). “‘[L]aw of the place’ means law

of the State – the source of substantive liability under the FTCA.” FDIC v. Myer, 510 U.S. 471,

478 (1994). Because the United States is generally immune from suit, the Court must construe

waivers of sovereign immunity narrowly – strictly applying any conditions Congress has

imposed. See, e.g., Block v. North Dakota ex rel. Bd. of University and School Lands, 461 U.S.

273, 287 (1983) (“[W]hen Congress attaches conditions to legislation waiving the sovereign

                                                  5
immunity of the United States, those conditions must be strictly observed” so as not to “‘extend

the waiver beyond that which Congress intended’”) (citation omitted); Haase v. Sessions, 893

F.2d 370, 373 (D.C. Cir. 1990) (“[W]aivers of sovereign immunity, the Supreme Court has

repeatedly reminded us, must be narrowly construed.”) (citation omitted).

       Here, Plaintiff clearly alleges that the negligent conduct occurred at WRAMC in

Washington. See Compl., ¶ 3. In light of this, Defendant contends that D.C. law – including the

90-day notice provision of the MMPA, D.C. Code § 16-2802 – must apply to Plaintiff’s claim.

Mot. at 7. In addition to citing the statutory language indicating that “the law of the place”

governs FTCA claims, Defendant points to two cases in this District that have held that § 16-

2802 applies to medical-malpractice claims premised on diversity jurisdiction.         Id. at 8.

Coleman v. Washington Hospital Center Corp., 734 F. Supp. 2d 58 (D.D.C. 2010), and

Diffenderfer v. United States, 656 F. Supp. 2d 137 (D.D.C. 2009), both diversity cases,

concluded that failure to comply with the 90-day notice requirement of the MMPA warranted

dismissal of the plaintiffs’ medical-malpractice claims.     Coleman, 734 F. Supp. 2d at 62

(Plaintiff’s “failure to notify defendants timely deprives this Court of subject matter

jurisdiction”); Diffenderfer, 656 F. Supp. 2d at 139 (Plaintiff “failed to comply with MMPA’s

notice requirement, and is thus legally barred from proceeding against the Pharmacy Defendants

in this case”); see also Davis v. Grant Park Nursing Home LP, 639 F. Supp. 2d 60, 72 (D.D.C.

2009) (Plaintiff cannot avoid MMPA’s notice requirement “‘merely by filing a diversity action

in federal court’” (citing Bledsoe v. Crowley, 849 F.2d 639, 643 (D.C. Cir. 1988)).

       By applying § 16-2802 in diversity cases, these courts held that the notice requirement of

the MMPA is a substantive rule of law for Erie purposes. See Coleman, 734 F. Supp. 2d at 62;

Diffenderfer, 656 F. Supp. 2d at 139, Davis, 639 F. Supp. 2d at 72; Erie R.R. v. Tompkins, 304



                                                6
U.S. 64 (1938) (holding that federal courts must apply state substantive law in diversity cases).

Since the language of the FTCA is unambiguous that state law applies to claims under the

statute, plaintiffs bringing a federal-medical-malpractice claim against the United States under

the FTCA in the District of Columbia, like similarly situated plaintiffs in diversity cases, are

bound by the MMPA’s notice requirement. See 28 U.S.C. § 1346(b)(1).

           This conclusion is further supported by holdings in other jurisdictions that state-law

requirements apply in FTCA actions. In Hill v. Smithkline Beecham Corp., 393 F.3d 1111 (10th

Cir. 2004), the plaintiff argued that the district court erred in dismissing his FTCA claim due to

his failure to file a certificate of review as required under Colorado law. Id. at 1116. The Tenth

Circuit rejected his argument that the pre-filing requirement did not apply to his FTCA claim,

stating:

                  To hold that the United States is not entitled to the protection of the
                  certificate of review requirement would place it in a differently
                  situated position than private parties defending against professional
                  negligence claims, thereby undermining the conditions precedent
                  to the United States’ waiver of sovereign immunity in the FTCA ….

Id. at 1118. Since the United States has only waived sovereign immunity to the extent it is

treated as a private party in like circumstances would be, 28 U.S.C. § 2674, the courts may not

deprive it of a benefit to which a similarly situated private party would be entitled. See, e.g.,

Starns v. United States, 923 F.2d 34, 37 (4th Cir. 1991) (“Since private health care providers in

Virginia would ‘in like circumstances’ be entitled to the benefit of [Virginia’s cap on recovery

for medical malpractice], so, too, is a federally operated hospital in that state.”); Oslund v.

United States, 701 F. Supp. 710, 714 (D. Minn. 1988) (declining to apply state-law expert-

affidavit requirement to FTCA claim would lead to “the anomalous result … that the federal




                                                    7
government would be exposed to liability when a cause of action involving similar conduct

would be dismissed in a diversity case or in a state court action”).

       Plaintiff in this case does not dispute that state law generally applies to FTCA actions;

rather, he argues that the MMPA’s notice requirement is inapplicable because it conflicts with

the FTCA’s statute of limitations. Opp. at 10. In order to satisfy the FTCA’s administrative-

exhaustion requirements, a plaintiff must first present his claim to the appropriate federal agency

within two years of the claim’s accrual. 28 U.S.C. § 2401(b). If the agency denies the claim, the

claimant has “six months after the date of mailing … of notice of final denial by the agency to

which it was presented” to file an action in federal court. Id. Plaintiff contends that D.C.’s 90-

day notice provision conflicts with the time limits prescribed by the FTCA, rendering it

inapplicable. Opp. at 10. According to Plaintiff, applying § 16-2802 here would conflict with

federal law by “impos[ing] duplicative presentment requirements” and “effectively cut[ting] the

six-month FTCA statute of limitations in half.” Id. at 11. The latter part of Plaintiff’s contention

is incorrect. The MMPA notice requirement does not shorten the FTCA statute of limitations at

all. Plaintiff would still have six months from the date of denial to file a complaint if § 16-2802

applied to FTCA claims; he would simply be required, in addition, to notify the defendant of his

intention to sue 90 days before doing so. The Court, accordingly, finds that Plaintiff must

comply with both requirements. See Ramsey v. United States, Civil Case No. 11-1710, ECF No.

5 at 2 (D.D.C. Jan. 20, 2012) (“The 90-day notice provision is a prerequisite to suit, and operates

in addition to any claim procedure requirement of the FTCA.”) (citations omitted); see also

Stanley v. United States, 321 F. Supp. 2d 805, 808-09 (N.D. W.Va. 2004) (more demanding state

pre-filing notice requirement does not displace FTCA pre-filing requirements but operates

alongside them).



                                                 8
       B. Compliance with MMPA Notice Provision

       Having determined that the MMPA notice provision applies here, the Court must now ask

whether Plaintiff has complied with it. Plaintiff first contends that the Court should “waive any

noncompliance with the notice requirement” in the interest of justice, in part because he provided

the requisite notice by exhausting his claim under the FTCA. Opp. at 5-7.         Plaintiff’s waiver

argument relies on the “interests of justice” exception in § 16-2804(b). Section 2804 is entitled

“Unknown defendant or unlicensed defendant” and states:

               (a) Section 16-2802 shall not apply to:
                        (1) Any intended defendant whose name is unknown
                        or who was not licensed at the time of the alleged
                        occurrence or is unlicensed at the time notice is given;
                        (2) Any claim that is unknown to the person at the
                        time of filing his or her notice; or
                        (3) Any intended defendant who is identified in the
                        notice by a misnomer.
               (b) Nothing indicated herein shall prevent the court from waiving
               the requirements of § 16-2802 upon a showing of good faith
               effort to comply or if the interests of justice dictate.

D.C. Code § 16-2804.

       While Plaintiff argues that § 16-2804(b) permits the Court to excuse any noncompliance

with the notice provision as long as the interests of justice dictate, the Court believes that is too

broad a reading. Section 16-2804 is entitled “Unknown defendant or unlicensed defendant.”

This, in combination with the fact that § 16-2802 makes an explicit exception to the notice

requirement for “good faith effort” but not for the interests of justice, suggests that § 16-

2804(b)’s “interests of justice” exception applies only to circumstances similar to those

enumerated in § 16-2804(a) (such as circumstances where the plaintiff lacks the information

necessary to give the required notice). See INS v. National Center for Immigrant’s Rights, 502

U.S. 183, 189-90 (1991) (section title “can aid in resolving an ambiguity in the legislation’s

text”) (citations omitted); Amoco Prod. Co. v. Watson, 410 F.3d 722, 733 (D.C. Cir. 2005) (if
                                                 9
possible, court must construe statute so as to give effect to “every clause and word”) (citation

omitted). The Court need not decide, however, whether § 16-2804(b) applies here because

Plaintiff has satisfied the notice requirement of § 16-2802 by complying with FTCA exhaustion

requirements and Army regulations governing tort claims.

       In his argument against dismissal, Plaintiff also asserts that, by fulfilling the FTCA’s pre-

filing requirements in compliance with Army regulations, he satisfied the 90-day notice

provision of the MMPA. See Opp. at 6-7. Section 16-2802(a) obligates a person intending to

sue a health care provider for medical malpractice to give “the intended defendant” notice of his

“action not less than 90 days prior to filing the action.” To satisfy the requirements of the

statute, the claimant must supply “sufficient information to put the defendant on notice of the

legal basis for the claim and the type and extent of loss sustained, including information

regarding the injuries suffered.” § 16-2802(b). The critical point here is that, unlike typical

medical-malpractice claims in which a doctor or hospital is the defendant, the intended defendant

in this FTCA case is the United States. Plaintiff contends that he provided the United States with

the requisite information – and therefore satisfied the statute – when he filed a claim with the

Army in accordance with FTCA exhaustion procedures. The Court agrees.

       Before suing the federal government in tort, the FTCA requires the injured person to

“first present[] the claim to the appropriate federal agency….” 28 U.S.C. § 2675(a); see also

McNeil v. United States, 508 U.S. 106, 113 (1993) (upholding dismissal of unexhausted FTCA

claim for lack of jurisdiction). Only after final disposition by the agency – i.e. denial of the

claim in writing or failure to take final action within six months of the claim’s filing – may the

plaintiff bring suit in federal court. Id. The FTCA’s presentment requirement imposes “a burden




                                                10
of notice, not substantiation, of claims,” and its purpose is to facilitate settlement where

appropriate. GAF Corp. v. United States, 818 F.2d 901, 917, 919 (D.C. Cir. 1987).

       Army regulations impose additional requirements on the claimant. To be sufficient, a

claim must set forth “a sum certain” and supply “enough information to permit investigation.” 32

C.F.R. § 536.26(a). The Army requests that the claim be presented on an SF-95 form, which

asks for a detailed description of the “basis of [the] claim” including “the known facts and

circumstances attending the damage,” the identity of the persons involved, “the nature and

extent” of the claimant’s injuries, and the cause thereof. Id. at § 536.26(c); Standard Form 95,

Claim of Injury or Death (2007) (available at http://www.justice.gov/civil/docs_forms/SF-

95.pdf).

       In order to determine whether Plaintiff has provided sufficient notice, the Court must

look beyond the Complaint. Since Defendant has moved to dismiss for lack of jurisdiction, this

is permissible. See Jerome Stevens, 402 F.3d at 1253; Venetian Casino Resort, 409 F.3d at 366.

When applying state law in federal court, the Court may look to the state court’s jurisprudence to

determine whether a state statutory requirement is a jurisdictional prerequisite to suit. See

Bledsoe, 849 F.2d at 645 (relying on Maryland Court of Appeals’s holding that Maryland’s

arbitration requirement for medical-malpractice claims was not jurisdictional). Here, the District

of Columbia Court of Appeals has determined that failure to comply with § 16-2802’s 90-day

notice provision divests the court of subject-matter jurisdiction. Lacek v. Washington Hosp.

Center Corp., 978 A.2d 1194, 1196 (D.C. 2009) (upholding dismissal of complaint for lack of

subject-matter jurisdiction where Plaintiff had not satisfied § 16-2802’s 90-day notice

requirement). Furthermore, the MMPA states that “an action alleging medical malpractice shall

not be commenced” unless the plaintiff has provided the requisite notice under §§ 16-2802(a)-



                                               11
(b), suggesting that compliance with the notice provision is a jurisdictional requirement. D.C.

Code § 16-2802(c) (emphasis added). In light of the D.C.C.A.’s construction of the notice

requirement and the language of the statute itself, the Court finds that noncompliance with the

notice requirement would be a jurisdictional defect requiring dismissal. See Coleman, 734 F.

Supp. 2d at 61 (“[T]he trial court must dismiss a case for lack of subject matter jurisdiction when

a plaintiff does not provide the 90-day notice as required by the Act” (citing Lacek, 978 A.2d at

1201), but see Diffenderfer, 656 F. Supp. 2d at 139 (“[A] plaintiff who has not complied with the

notice requirement of § 16-2802(a) has not stated a claim upon which relief can be granted.”).

The Court will, accordingly, look outside the pleadings to evaluate whether jurisdiction exists

here. In any event, the Government never argues that Plaintiff cannot rely on the documents he

filed in connection with the FTCA’s administrative requirements.

       While Plaintiff has not provided the Court with a copy of his agency claim, it is clear

from the Army’s December 8, 2010, letter denying Plaintiff’s claim that it was aware of the

alleged nature and cause of his injuries well over 90 days before he filed suit. The letter shows

that Brashear had notified the Army that he suffered from “urinary incontinence and impotence

… [allegedly] as a result of negligent medical care provided by Government health care

providers” at WRAMC between June 8 and October 25, 2004. See Letter from Chief of Army’s

Tort Claims Division to Brashear’s counsel. It further indicated that Brashear was seeking

$2,000,000 from the United States for his injuries. Id. According to the letter, the Government

became aware of Brashear’s claim in 2008 at the latest, having explained its position on

Brashear’s claim to his counsel in July of that year. Id. In response, Brashear submitted an

expert report, which the United States had its own expert review. Id. The Army also conducted

further investigation into Brashear’s claim, citing facts about his medical history, the information



                                                12
conveyed to him by WRAMC personnel, and the known risks of the treatment he underwent. Id.

Based on this evidence, the Army concluded that Brashear’s claim was “not meritorious under

the Federal Tort Claims Act.” Id. Presumably referring to the statute of limitations under the

FTCA, it advised Brashear’s counsel that he had six months from the date of the Army’s final

agency action to sue in U.S. District Court. Id.

        In light of the foregoing, the Court finds that Plaintiff provided “sufficient information”

to the “intended defendant” to satisfy the MMPA’s notice requirement. See D.C. Code §§ 16-

2802(a)-(b). The United States clearly understood that Brashear was alleging that he suffered

from urinary incontinence as a result of negligent medical care by employees of WRAMC. Not

only did Brashear submit these allegations to the Army, but he apparently also offered an expert

report in support of his position. The Government anticipated, furthermore, that the claim could

lead to an action under the FTCA in federal court. Since Plaintiff put the United States on notice

of his legal claim and the nature and extent of his injuries over six months before filing his

FTCA action, he has satisfied the 90-day notice provision of the MMPA. Even if he did not

meet the requirements due to some technicality – e.g. not citing the MMPA itself in his notice –

the Court finds that he made a good faith effort to do so and accordingly excuses him from any

noncompliance with §§ 16-2802(a)-(b). See D.C. Code § 16-2802(a) (“Upon a showing of a

good faith effort to give the required notice, the court may excuse the failure to give notice

within the time prescribed.”).

IV.    Conclusion

       For the foregoing reasons, the Court will issue a contemporaneous Order denying

Defendant’s Motion to Dismiss.




                                                   13
                           /s/ James E. Boasberg
                           JAMES E. BOASBERG
                           United States District Judge


Date: March 9, 2012




                      14
