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Berndtson v. United States

United States District Court, D. Connecticut

March 1, 2017



          Alvin W. Thompson United States District Judge

         Plaintiff Louis W. Berndston, Jr. (“Berndston”), who commenced this action proceeding pro se, brings claims against the defendant for injuries sustained during and after a surgery to implant a pacemaker, performed at the Department of Veterans Affairs Medical Center (“VA”) in West Haven, Connecticut, and for injuries resulting from the administration of morphine to the plaintiff following the surgery. The defendant has moved to dismiss the Complaint. For the reasons set forth below, the motion to dismiss is being granted in part.


         “The complaint, which [the court] must accept as true for purposes of testing its sufficiency, alleges the following circumstances.” Monsky v. Moraghan, 127 F.3d 243, 244 (2d Cir. 1997). On May 14, 2013, during the course of a surgery to implant a pacemaker device at the VA in West Haven, Connecticut, the plaintiff suffered a perforation in his heart. See Compl. Attach. 1 at 3 (Doc. No. 1-1). The surgical team drained the effusion and hoped the perforation would close on its own. After the surgery, however, the perforation continued to bleed, and the plaintiff required open-heart surgery to repair the tear. Upon discharge from the VA, the plaintiff attended several follow-up appointments and underwent several echocardiograms, at which point his doctors determined he would need a second open-heart surgery to repair additional damage resulting from the perforation. During the second open-heart surgery, the plaintiff's doctors also created a pericardial window, which is a permanent hole in the pericardium to allow for future drainage.

         While in recovery at the VA from the initial pacemaker implantation surgery, the plaintiff was administered morphine via injection to relieve his pain, despite the fact that the medical record noted he had a known allergy or adverse reaction to that medication. After the morphine injection, the plaintiff suffered vivid hallucinations lasting about one week. Also, the plaintiff's breathing stopped, and he had to be intubated.


         The defendant moves to dismiss this case for insufficient service of process pursuant to Federal Rule of Civil Procedure 12(b)(5). In assessing a Rule 12(b)(5) motion, a court must look to Rule 4, which governs the content, issuance, and service of a summons. Under Federal Rule of Civil Procedure 4(m):

If a defendant is not served within 90 days after the complaint is filed, the court -- on motion or on its own after notice to the plaintiff -- must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Id. “[W]hen a defendant moves to dismiss under Rule 12(b)(5), the plaintiff bears the burden of proving adequate service.” Dickerson v. Napolitano, 604 F.3d 732, 752 (2d Cir. 2010) (alteration in original) (quoting Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005)).

         When interpreting the allegations in a pro se complaint, the court applies “less stringent standards than [those applied to] formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Branham v. Meachum, 77 F.3d 626, 628-29 (2d Cir. 1996). Furthermore, the court should interpret the plaintiff's complaint “to raise the strongest arguments [it] suggest[s].” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).


         The plaintiff, although now represented by counsel, filed his complaint pro se on December 29, 2015, under the Federal Tort Claims Act, 28 U.S.C. § 1346 (“FTCA”). “[T]he FTCA directs courts to consult state law to determine whether the government is liable for the torts of its employees.” Liranzo v. United States, 690 F.3d 78, 86 (2d Cir. 2012) (citing FDIC v. Meyer, 510 U.S. 471, 478 (1994) (“[The] law of the State [is] the source of substantive liability under the FTCA.” (alterations in original))).

         Under Connecticut law, prior to filing a claim for medical malpractice, a plaintiff must first conduct a “reasonable inquiry . . . to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.” Conn. Gen. Stat. Ann. § 52-190a(a). Furthermore,

[t]he complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an ...

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