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Pyscher v. United States

United States District Court, E.D. Michigan, Northern Division

July 7, 2017

LAWRENCE PYSCHER, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendants.

          OPINION AND ORDER GRANTING MOTION TO DISMISS

          THOMAS L. LUDINGTON United States District Judge

         Plaintiff Lawrence Psycher filed a complaint against Defendant United States of America on November 15, 2016. ECF No. 1. Psycher alleges that his treating physicians at the Veterans Affairs hospital were negligent because they did not adequately investigate the possibility that Psycher might have asbestosis or another lung-related medical condition. On April 21, 2017, the Government filed a motion to dismiss. ECF No. 8. For the reasons stated below, that motion will be granted.

         I.

         At the motion to dismiss stage, all well-pleaded factual allegations are assumed to be true. In his complaint, Psycher alleges that he has been “a patient at the Aleda E. Lutz VA Medical Center in Saginaw Michigan for years.” Compl. at 2, ECF No. 1. The sequence of events which gives rise to the current action began on February 25, 2014. Id. On that day, Psycher traveled to Flint, Michigan, to have his lungs x-rayed for potential asbestosis. Id. The x-ray results were reviewed by Steven E. Haber, a “NIOSH Certified B reader.” Id. Psycher explains that a “NIOSH Certified B reader is a doctor who has undergone rigorous training to recognize asbestosis, black lung, mesothemeola [sic] and other lung affected diseases.” Id. at 3.

         Dr. Haber sent his report to Psycher on April 9, 2015. See Haber Rep., ECF No. 1, Ex. B. Dr. Haber first explains that the “x-ray is of film quality 2 due to improper positioning and poor processing.” Id. at 1. Dr. Haber's opinion, in full, is as follows: “There are pleural and parenchymal abnormalities present which would represent asbestosis and asbestos-related pleural disease, assuming an adequate exposure history, sufficient latency, and exclusion of other more probable causes. No diagnosis is made or implied. Clinical correlation is recommended.” Id. at 2.

         Alarmed by this report, Psycher scheduled an appointment with his local doctor, Thomas Hadad. Compl. at 3. At the appointment, a second set of x-rays were taken. Id. Doctor Ross Waterford reviewed the second set of x-rays and “declared that there was no problems or asbestosis found in the second set of x-rays.” Id. Dr. Waterford is not a NISOH Certified B reader. Id.

         On June 10, 2015, Psycher had an appointment with his primary care physician, Dr. Potts. Id. At the appointment, Psycher “asked for the results of the x-rays and explained that he had a set that had been read by a Certified B-reader that stated he had asbestosis.” Id. Dr. Potts indicated that he was unaware of those x-rays. Id. Psycher attempted to explain that he had a second set of x-rays taken and “wanted to know if they would be read by a Certified B reader.” Id. At that point, Dr. Potts “jumped to his feet and stared [sic] yelling at the Plaintiff and his wife and ordered them out of his office.” Id. According to Psycher, the appointment was less than four minutes long. Id. at 4.

         On June 15, 2015, Psycher wrote to Dr. Blasy, the Chief of Staff for the Saginaw VA Medical Center. Id. He wrote to “try to get the results of his x-ray and to clear up the confusion surrounding his diagnosis.” Id. Dr. Blasy did not respond, but Pyscher received a copy of his medical files on July 21, 2015. Id. Those records revealed that, according to Dr. Potts, a Certified B-reader had read Psycher's x-rays and concluded that he did not have asbestosis. Id. Psycher complains that he “still has no definitive answer as to the needed treatment for his lungs and whether he actually has a lung disease or not.” Id. He further objects that “[e]ven though it has been over 18 months, and despite repeated request, the Defendant has failed to provide this veteran with the medical care and diagnosis that he may need to fight whatever lung disease he may have.” Id.

         Count II of Pyscher's complaint (there is no “Count I”) alleges “Negligence or Malpractice of Physician and Defendant US.” Id. at 5. He alleges that Defendant owed him a duty of reasonable care and diligence similar to that of other doctors in general medicine, “measured against a national standard.” Id. He contends that Defendant breached its duties to him because Dr. Potts failed to “timely order x-rays to follow up after being informed of the first diagnosis, ” failed to understand the importance of having a Certified B-reader review the x-rays, “negligently dismissed” Pyscher when he inquired about the x-rays, and “caused additional stress to the already sick Plaintiff.” Id.

         Psycher attaches two exhibits to his complaint. Exhibit A is a letter from the Department of Veterans Affairs confirming that Psycher's medical negligence claim was investigated and found to be meritless. VA Letter, ECF No. 1, Ex. A. Exhibit B is Dr. Haber's report (summarized above). Exhibit C is the letter Pyscher wrote to Dr. Blasy. Letter to Blasy, ECF No. 1, Ex. C.

         II.

         Defendant is moving for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). A pleading fails to state a claim under Rule 12(b)(6) if it does not contain allegations that support recovery under any recognizable legal theory. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In considering a Rule 12(b)(6) motion, the Court construes the pleading in the non-movant's favor and accepts the allegations of facts therein as true. See Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). The pleader need not provide “detailed factual allegations” to survive dismissal, but the “obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In essence, the pleading “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face” and “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678-79 (quotations and citation omitted).

         III.

         The Government argues that Pyscher's suit should be dismissed for two reasons. First, Pyscher does not allege that he has suffered actual injury as a result of the Government's actions. Second, Pyscher did not attach an affidavit of merit by a qualified expert, as required by Michigan law. After resolving the threshold issue of whether the motion to dismiss should be ...


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