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Hill v. United States

United States District Court, S.D. Ohio, Western Division

July 20, 2018

David L. Hill, Plaintiff,
v.
United States of America, Defendant.

          ORDER

          Michael R. Barrett United States District Judge

         This matter is now before the Court upon Defendant's Motion to Dismiss (Doc. 6) for failure to state a claim upon which relief may be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure and Plaintiff's opposition thereto (Doc. 7).

         For the reasons stated herein, Defendant's Motion to Dismiss is GRANTED.

         I. BACKGROUND

         Plaintiff David L. Hill is an Army veteran of the United States, residing in Warren County, Ohio. (Doc. 1 at ¶¶ 2, 12). Plaintiff suffers from service-connected posttraumatic stress disorder (PTSD) and currently has a thirty percent disability rating. (Id. at ¶13). In 2015 or 2016, Plaintiff sought a change in his disability rating for chronic fatigue syndrome (“CFS”). (Id. at ¶14). On February 1, 2016, Plaintiff logged on to the Department of Veterans Affairs (“VA”) E-benefits website and saw a diagnosis for Human Immunodeficiency Virus (“HIV”) with the CFS diagnosis; Plaintiff asserts he was previously unaware of any exposure to or tests for HIV. (Id. at ¶17-18, 20). Plaintiff alleges that he believed he was HIV positive and contacted his doctor for testing; the subsequent testing came back negative for HIV. (Id. at ¶23). The amount of time between Plaintiff's E-benefits notification and the negative test results is unknown. Plaintiff asserts the misdiagnosis caused him to “suffer[] extensive damages, pain and suffering, extreme distress, and other damages.” (Id. at PageID 6).

         Plaintiff alleges, for the first time in the Response to Defendant's Motion to Dismiss, that the HIV misdiagnosis caused an “exacerbation” of his PTSD, which “already cause[d] depression, anxiety, and panic attacks.” (Doc. 7 at PageID 27). Plaintiff also claims the misdiagnosis generated “actual physical peril” because the VA knew Plaintiff's disability status, and the information “did not come from a medical professional, ” but rather from the E-benefits website. (Id.)

         II. STANDARD

         Plaintiff brings a claim for negligent infliction of emotional distress (NIED) under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et seq., seeking $500, 000 in damages for distress arising from a misdiagnosis of HIV; the HIV diagnosis was communicated through the E-benefits website, a VA medical portal. Defendant waives sovereign immunity under the FTCA concerning the substantive aspects of the case. 28 U.S.C. § 1346(b)(1). Ohio law applies, as the state in which the alleged tort occurred. 28 U.S.C. § 1402.

         To survive a motion to dismiss, the complaint must put the defendant on fair notice of the claim asserted, as well as the grounds for the claim. See Bush v. United States, Case No. 1:13-cv-587, 2013 WL 5722802, at *2 (S.D. Ohio Sept. 17, 2013) (citing Bell Atlantic Corp v. Twombly, 550 U.S. 544, 555 (2007)). The complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Together, these two conditions are the standard for whether a plaintiff has failed to state a claim upon which relief may be granted.

         III. ANALYSIS

         The FTCA grants a limited waiver of the sovereign immunity of governmental parties in actions involving tort claims against the United States. See Levin v. United States, 568 U.S. 503, 506-07 (2013). Whether a FTCA claim can be made out against the United States depends upon whether a private individual under like circumstances would be liable under state law. See, e.g., Huffman v. United States, 82 F.3d 703, 705 (6th Cir. 1996). The law of the state in which the alleged tort occurred governs the substantive questions at issue. See Bell v. United States, 854 F.2d 881, 885 (6th Cir. 1988). To survive Defendant's Motion to Dismiss, Plaintiff must clearly state a claim for NIED under Ohio tort law.

         Plaintiff's complaint (Doc. 1) alleges that the effects of the HIV misdiagnosis were “a state of extreme emotional distress and shock, ” (Id. at ¶21), “extreme and cruel emotional distress, ” (Id. at ¶29), and “extensive damages, pain and suffering, extreme distress, and other damages.” (Id. at ¶30). Plaintiff adds additional claims in the Response to Defendant's Motion to Dismiss (Doc. 7), alleging “an exacerbation of his service connected PTSD, which already causes depression, anxiety, and panic attacks, ” and “[his] PTSD was aggravated.” (Id. at PageID 27). Plaintiff does not include any details on how specifically his PTSD was exacerbated. Furthermore, Plaintiff does not explicitly assert any manifestation of physical trauma from the misdiagnosis.[1]

         As further discussed below, the elements of NIED are only met when a defendant's negligence produces an actual threat of physical harm, either to the plaintiff or to another person. See Heiner v. Moretuzzo, 73 Ohio St.3d 80, 82 (1995). To prevail under the former category (i.e. not as a bystander to an accident), Ohio plaintiffs must assert - among other facts - allegations establishing: (1) Plaintiff's emotional distress was caused by a contemporaneous physical injury; or (2) Defendant exposed Plaintiff to “actual physical peril” that resulted in emotional distress. Id. at 86-87 (citation omitted).

         For example, one Ohio plaintiff prevailed when his emotional distress was caused by narrowly escaping a falling sheet of glass dropped by a negligent defendant; the glass's near miss constituted “actual physical peril.” Shultz v. Barberton Glass Co., 4 Ohio St.3d 131 (1983). However, Ohio courts have uniformly held that medical misdiagnoses are not actionable where ...


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