Christopher Lancaster v. USP Hazelton ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-7245
CHRISTOPHER LANCASTER,
Plaintiff - Appellant,
v.
USP HAZELTON,
Defendant - Appellee.
Appeal from the United States District Court for the Northern District of West Virginia, at
Martinsburg. Gina M. Groh, Chief District Judge. (3:16-cv-00030-GMG-RWT)
Submitted: April 30, 2018 Decided: July 26, 2018
Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher Lancaster, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Lancaster, a federal inmate, appeals the district court’s order adopting
the magistrate judge’s recommendation in part and denying relief on Lancaster’s complaint
pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2671-2680
(2012). Lancaster challenges the district court’s conclusions that his assault and battery
claim is barred by the discretionary function exception to the FTCA and that he was
required to file a screening certificate of merit, pursuant to W. Va. Code § 55-7B-6(b)
(2016 & Supp. 2017), prior to filing his medical negligence claim. We affirm. *
I.
Under the FTCA, the Government has “waived sovereign immunity for claims
brought against the United States based on the negligence or wrongful acts or omissions of
its employees committed within the scope of employment, accepting liability in the same
manner and to the same extent as a private individual would have under like
circumstances.” Wood v. United States, 845 F.3d 123, 127 (4th Cir. 2017). Several
exceptions apply to this waiver, including the discretionary function exception. Id. Under
the discretionary function exception, the FTCA does not apply to claims “based upon the
exercise or performance or the failure to exercise or perform a discretionary function or
duty on the part of a federal agency or an employee of the Government, whether or not the
*
We disagree with the district court’s finding that Lancaster failed to file timely
objections to the magistrate judge’s report and recommendation. However, because the
district court stated that it would reach the same disposition even if the objections were
timely filed, we conclude that any error associated with the timeliness of Lancaster’s
objections is harmless.
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discretion involved be abused.” 28 U.S.C. § 2680(a). We review a district court’s decision
that the discretionary function exception applies de novo. Indem. Ins. Co. of N. Am. v.
United States, 569 F.3d 175, 179 (4th Cir. 2009).
After reviewing the evidence, including the video surveillance of the incident in
question, we conclude that the district court correctly granted summary judgment in favor
of the Government on Lancaster’s assault and battery claim on the ground that the
correctional officers were performing a discretionary function when they used force against
Lancaster. See Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 208-09 (4th Cir. 2017)
(stating standard of review); Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009)
(explaining that, “when the jurisdictional facts and the facts central to a tort claim are
inextricably intertwined, the trial court should ordinarily assume jurisdiction and proceed
to the intertwined merits issues”).
II.
To determine liability under the FTCA, courts apply “the law of the place where the
negligent act or omission occurred.” Cibula v. United States, 664 F.3d 428, 430 (4th Cir.
2012) (brackets and internal quotation marks omitted). The district court properly used
West Virginia law to assess Lancaster’s medical negligence claim.
Medical negligence claims in West Virginia are governed by the Medical
Professional Liability Act. Banfi v. Am. Hosp. for Rehab., 529 S.E.2d 600, 605 (W. Va.
2000); see W. Va. Code § 55-7B-3 (2016). Generally, “in medical malpractice cases[,]
negligence or want of professional skill can be proved only by expert witnesses.” Banfi,
529 S.E.2d at 605 (internal quotation marks omitted). However, failure to produce expert
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testimony “is not fatal to a plaintiff’s prima facie showing of negligence” when “lack of
care or want of skill is so gross, so as to be apparent, or the alleged breach relates to
noncomplex matters of diagnosis and treatment within the understanding of lay jurors by
resort to common knowledge and experience.” Id. at 605-06 (internal quotation marks
omitted). Whether an expert is required is within the discretion of the court, and the court’s
decision on the matter is therefore reviewed for abuse of discretion. Id. at 605.
In light of the importance of expert testimony, West Virginia requires plaintiffs to
file a screening certificate of merit at least 30 days prior to the filing of a medical
negligence claim. W. Va. Code § 55-7B-6(b). The certificate of merit must be executed
under oath by a health care provider and state the expert’s familiarity with the standard of
care, her qualifications, and her opinion about how the standard of care was breached and
how the breach resulted in the injury or death. Id. However, recognizing that not all
medical malpractice cases require expert testimony, West Virginia provides a plaintiff with
an option if he believes that such testimony is not required in his case—he may “file a
statement specifically setting forth the basis of the alleged liability of the health care
provider in lieu of a screening certificate of merit.” W. Va. Code § 55-7B-6(c) (2016 &
Supp. 2017). “[T]his exception is not easily invoked, as a plaintiff seeking to do so must
overcome the general presumption in West Virginia medical malpractice law that
negligence or want of professional skill can be proved only by expert witnesses.” Callahan
v. Cho, 437 F. Supp. 2d 557, 562 (E.D. Va. 2006) (internal quotation marks omitted); see
Totten v. Adongay, 337 S.E.2d 2, 7 (W. Va. 1985) (describing “common knowledge
exception” as “rare”).
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The Supreme Court of Appeals of West Virginia has clarified that “[t]he
requirement of a pre-suit notice of claim and screening certificate of merit is not intended
to restrict or deny citizens’ access to the courts.” Hinchman v. Gillette, 618 S.E.2d 387,
394 (W. Va. 2005). Rather, “in determining whether a notice of claim and certificate are
legally sufficient, a reviewing court should apply [§ 55-7B-6] in light of the statutory
purposes of preventing the making and filing of frivolous medical malpractice claims and
lawsuits; and promoting the pre-suit resolution of non-frivolous medical malpractice
claims.” Id. at 395. The appropriate inquiry is whether the plaintiff “has demonstrated a
good faith and reasonable effort to further the statutory purposes.” Id.
We conclude that the district court did not abuse its discretion in determining that a
medical expert is required to prove Lancaster’s medical negligence claim. We agree that
Lancaster did not allege that he was denied medical care altogether but complained that he
did not receive proper medical care for his injuries. The proper course of treatment for
injuries such as head trauma is not within the common knowledge of a lay person. We also
agree with the court’s conclusion that the good faith exception does not apply. Here,
Lancaster submitted a document labeled “Certificate of Merit” (in which he argued no such
certificate was required) more than one year after this case was filed. See id. (“[T]here
would seem to be no sense or utility in allowing amendment of a pre-suit notice and
certificate after suit is filed.”). Notably, the court properly dismissed the medical
negligence claim without prejudice. See Cline v. Kresa-Reahl, 728 S.E.2d 87, 98 (W. Va.
2012) (explaining that, if court undertakes good faith analysis and finds plaintiff’s efforts
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to promote the statutory purposes wanting, it may dismiss the complaint without prejudice
to ensure that it does not restrict access to court).
III.
Accordingly, we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED
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