The opinion of the court was delivered by: Tucker, J.
Presently before this Court is Defendant the United States' Motion to Dismiss Claims for Survival and Wrongful Death Damages pursuant to Federal Rule of Civil Procedure 12(b)(1) (Doc. 37) and Plaintiff's Response in Opposition to Dismissal (Doc. 38). Upon consideration of the parties' motions with exhibits and declarations, this Court will deny Defendant United States' motion to dismiss.
This suit arises from the death of plaintiff Patricia Brunson's ("Plaintiff") mother, Dorothea Brunson ("Decedent") on March 11, 2007, allegedly as a result of negligent treatment by government physicians at the Greater Philadelphia Health Action, Inc. Hunting Park ("GPHA") in Philadelphia, Pennsylvania.
On or about August 27, 2003, the Decedent became a patient of GPHA, a medical facility run by the Department of Health and Human Services ("DHHS"), which serves as an agent of the United States. The Decedent was initially seen by Dr. Seema Patel, a GPHA physician who ordered blood tests showing anemia as of August 29, 2003. Pap smear testing performed on the Decedent as of September 9, 2003 showed the presence of atypical squamous cells. Despite the Decedent's continued complaints of bleeding, persistent anemia and abnormal squamous cells, Dr. Patel declined to order additional testing for cancer, and failed to send the Decedent to an oncologist. On September 29, 2004, the Decedent was seen by Dr. Kathleen Christophe, a GPHA family practice physician who ordered blood tests that showed continued anemia as of November 2, 2004. Despite the Decedent's further complaints of bleeding, persistent anemia and abnormal squamous cells, Dr. Christophe failed to order additional testing for cancer, including a cervical biopsy, failed to refer the Decedent to an oncologist, and failed to consider or rule out cervical cancer from the Decedent's diagnosis.
On December 21, 2004, an ultrasonography taken of the Decedent's pelvis revealed masses in her cervix. The radiologist impressions of this ultrasonography stated that the masses "could represent endometrial carcinoma," and that an MRI or alternatively, a biopsy, were in order. Instead of receiving the recommended MRI or biopsy, the Decedent was treated with Lupron while her cancer continued to grow. In May 2005, the Decedent underwent endoscopy after an emergency visit to Temple University Hospital, at which time cancerous cells were discovered. On July 11, 2005, the Decedent's stage of cancer was diagnosed as "at least IIb."
Despite aggressive radiation and chemotherapy, the Decedent died of cervical cancer on March 11, 2007.
On November 11, 2008, Plaintiff, administratrix of Decedent's estate, commenced litigation by filing a written complaint with The Court of Common Pleas of Philadelphia County, Pennsylvania. On January 15, 2009, Plaintiff filed an administrative claim with the DHHS alleging the wrongful death of the Decedent. The Defendant United States sent two follow up inquiry letters dated January 26, 2009 and April 2, 2009 regarding the administrative complaint form filed in January 2009. On April 7, 2009, Plaintiff responded to these follow up inquiry letters from the Defendant, providing among other information, the requested state complaint filed in November 2008, which included both survival and wrongful death actions on behalf of the Decedent's survivors.
On July 24, 2009, Plaintiff brought this federal suit against the United States for: (1) negligence, corporate liability, and vicarious liability pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), and 2671 et seq.; (2) wrongful death pursuant to 42 Pa. C.S.A. § 8301 (the "Pennsylvania Wrongful Death Act"); and (3) and survival pursuant to 20 Pa. C.S.A. § 3371, et seq. (the "Pennsylvania Survival Act").
Plaintiff seeks: (1) damages in excess of $150,000 from the United States for the pain and suffering sustained by the Decedent as a result of the alleged negligence of United States agents; (2) wrongful death damages in excess of $150,000 from the United States for the pecuniary loss sustained by the Decedent's estate as a result of the Decedent's death; and(3)survival damages in excess of $150,000 from the United States for the pecuniary loss sustained by the Decedent's estate as a result of the Decedent's death, as well as damages for pain and suffering endured by the Decedent up to and including the time of her death.
On a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), dismissal is warranted where a court lacks subject matter jurisdiction over a case. Rule 12(b)(1) motions are either facial or factual challenges. CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008). A facial attack concerns the sufficiency of the pleadings, whereas a factual attack is a dispute over the existence of certain jurisdictional facts alleged by the plaintiff. Id. (citing United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007)). "In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).
By contrast, when a defendant attacks subject matter jurisdiction "in fact," the court is "free to weigh the evidence and satisfy itself whether it has power to hear the case." Carpet Group Int'l v. Oriental Rug Imps. Ass'n, Inc., 227 F.3d 62, 69 (3d Cir. 2000) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). In reviewing a factual attack, the court is not confined to the allegations of the complaint. Cestonaro v. United States, 211 F.3d 749, 754 (3d Cir. 2000). No presumption of truthfulness attaches to the plaintiff's allegations, "and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Carpet Group Int'l, 227 F.3d at 69 (citation ...