James A. Nelson v. United States , 478 F. App'x 647 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-15004 ELEVENTH CIRCUIT
JUNE 13, 2012
Non-Argument Calendar
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:09-cv-01032-HLA-MCR
JAMES A. NELSON,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 13, 2012)
Before BARKETT, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
James A. Nelson appeals pro se the district court’s dismissal of his claim
against the United States brought under the Federal Tort Claims Act (“FTCA”), 28
U.S.C. § 1346(b). Nelson alleged medical malpractice in connection with a
surgical procedure that he had undergone at the St. Louis Veterans Association
Medical Center (“VAMC”) in Missouri. The district court granted the
government’s motion to dismiss based on Nelson’s failure to identify an expert
witness and failure to provide an affidavit in support of his claims, both of which
were required by applicable Missouri law. The court also found that any claims of
assault and battery that Nelson may have asserted were outside the ambit of the
FTCA, and therefore the court lacked jurisdiction over those claims. On appeal,
Nelson argues that Missouri law should not have been applied to his claim.
We review de novo the dismissal of an action for lack of subject matter
jurisdiction, as well as the district court’s interpretation and application of
statutory provisions. Ochran v. United States, 117 F.3d 495, 499 (11th Cir. 1997).
The FTCA provides a limited waiver of the sovereign immunity of the United
States for tort claims. Dalrymple v. United States, 460 F.3d 1318, 1324 (11th Cir.
2006). It authorizes “private tort actions against the United States ‘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.’” United States v. Olson, 546 U.S. 43, 44 (2005) (quoting 28 U.S.C.
§ 1346(b)(1)). The “law of the place” does not mean federal law; the FTCA “was
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not intended as a mechanism for enforcing federal statutory duties.” Ochran v.
United States, 273 F.3d 1315, 1317 (11th Cir. 2001). Rather, the FTCA “was
designed to provide redress for ordinary torts recognized by state law.” Id.(quotation omitted). Therefore, “unless the facts support liability under state law,
the district court lacks subject matter jurisdiction to decide an FTCA claim.” Id.Nelson’s medical malpractice claims arose in Missouri, where VAMC is
located. A prima facie case of medical malpractice in Missouri “consists of three
general elements: (1) an act or omission of the defendant failed to meet the
requisite medical standard of care; (2) the act or omission was performed
negligently; and (3) the act or omission caused the plaintiff’s injury.” Edgerton v.
Morrison, 280 S.W.3d 62, 68 (Mo. 2009) (en banc). Except in limited
circumstances not present here, “allegations of negligence in a medical
malpractice action are such that expert testimony is required to prove the
acceptable standard of professional care; and without expert opinion, the issue of
breach of that standard of care cannot be made.” Morrison v. St. Luke’s Health
Corp. 929 S.W.2d 898, 905 (Mo. Ct. App. 1996).
Nelson never disclosed a medical expert. Therefore, Nelson did not support
his medical malpractice claim with evidence of the applicable medical standard of
care, and his claim was due to be dismissed on this basis. Additionally, Nelson had
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until April 16, 2010 with the Court’s permission to file an affidavit of a healthcare
provider to support his claim, as required by Mo. Ann. Stat. § 538.225. Nelson
never provided the required affidavit; thus, dismissal without prejudice was
permissible on this basis as well. See Mo. Ann. Stat. § 538.225(6). Finally, to the
extent that Nelson’s complaint may be read to characterize the surgical procedure
as actionable assault and battery, such a claim would not be cognizable under the
FTCA. See 28 U.S.C. § 2680(h).
AFFIRMED.
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