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Cichocki v. U.S.

Sovereign Immunity Deprives Court of Jurisdiction Over VA, Doctors in Action Over Surgery

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DECISION AND ORDER I. INTRODUCTION In this action, Plaintiff Jerome Cichocki seeks damages for injuries incurred during a surgery performed at the Department of Veteran Affairs Medical Center in Buffalo, New York. He asserts, inter alia, medical-malpractice and lack-of-consent claims against the Department of Veteran Affairs (“VA”), the VA Medical Center, and VA doctors under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§1346 (b), 2679 (a), which the government now moves to dismiss on their behalf for lack of subject-matter jurisdiction.1 (Docket No. 28.) For the reasons that follow, the government’s motion will be granted. II. BACKGROUND This Court assumes the truth of the following factual allegations contained in Cichocki’s complaint. See Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740, 96 S. Ct. 1848, 48 L. Ed. 2d 338 (1976); see also Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton Coll., 128 F.3d 59, 63 (2d Cir. 1997). On September 19, 2019, Cichocki underwent bi-lateral cataract surgery at the VA Medical Center. (Complaint, Docket No. 1, 15.) Before the surgery, Cichocki met with Defendant Dr. Joseph Ling, who advised that he would perform the surgery but failed to inform Cichocki of the risks involved. (Id., 16.) Dr. Ling, however, did not perform Cichocki’s surgery and was not present during it. (Id., 17.) Instead, Defendant Dr. Cristy Ku, a medical fellow, performed the surgery under Defendant Dr. Michael L. Vilardo’s supervision. (Id.,

17, 18.) At some point during the surgery, a medical device manufactured by Defendant Beaver-Visitec International sent a high-pressure stream of water directly into Cichocki’s right eye, tearing the lens and retina and causing blindness. (Id.,

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