United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER GRANTING MOTION TO DISMISS
L. LUDINGTON United States District Judge
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
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.
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.
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.
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.
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.”
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
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.
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).
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 ...