DECISION and ORDER I. INTRODUCTION On July 23, 2024, plaintiff Sandra K. Haynes (“Haynes” or “plaintiff”), acting both individually and as the executrix for the estate of her deceased husband, Willie J. Hicks (“Hicks”), filed a four-count complaint against the United States of America (the “Government” or “defendant”). Dkt. No. 1. Haynes’s complaint sets forth claims under the Federal Tort Claims Act (the “FTCA”) for negligence and malpractice, conscious pain and suffering, wrongful death, and loss of consortium. Dkt. No. 1-4. On October 7, 2024, the Government moved to dismiss plaintiff’s loss of consortium claim pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1). Dkt. No. 25-1. On October 31, 2024, Haynes responded to the Government’s motion but did not oppose it.1 Dkt. No. 29. The motion has been fully briefed and will be considered on the basis of the submissions without oral argument. Dkt. Nos. 25, 29. II. BACKGROUND On or around July 23, 2022, Hayes discovered that Hicks appeared to have aspirated on his morning medication. Compl. 12. Hicks was then brought to the Emergency Department (“ER”) of the Syracuse VA Medical Center (the “SVAMC”).2 Id. The Government owns, operates, and is responsible for the acts of the SVAMC. Compl. 4. The ER performed an evaluation of Hicks which confirmed acute aspiration. Compl. 15. The ER also concluded that Hicks was frail and in “poor condition.”3 Id. 16. Hicks was admitted with a diagnosis of, inter alia, pneumonia. Id. 17. The ER later obtained an infectious disease consultation for Hicks, and he was thereafter placed on a course of antibiotics. Compl. 18. Hicks’s medical conditions continued to worsen. On September 1, 2022, Hicks was discharged for hospice care. Compl. 51. Hicks passed away on September 6, 2022. Id. 52. Hayes submitted a medical malpractice claim on Hicks’s behalf to the U.S. Department of Veterans Affairs, Office of General Counsel (the “VA”)under the FTCA. See Compl. 5. But the VA denied plaintiff’s claim on March 12, 2024. Id. 5; Ex. B to Compl., Dkt. No. 1. This action followed. III. LEGAL STANDARD “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Forjone v. Dep’t of Motor Vehicles, 414 F. Supp. 3d 292, 297-98 (N.D.N.Y. 2019) (cleaned up). Rule 12(b)(1) motions may be either facial or fact-based. Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016). Facial Rule 12(b)(1) motions are “based solely on the allegations of the complaint…and exhibits attached to it[.]” Id. To resolve a facial motion, the district court must “ determine whether the pleading alleges facts that affirmatively and plausibly suggest that the plaintiff has standing to sue.” Id. (cleaned up). In doing so, the district court “must accept the complaint’s allegations as true and draw all reasonable inferences in favor of the plaintiff.” Wagner v. Hyra, 518 F. Supp. 3d 613, 623 (N.D.N.Y. 2021) (quoting Nicholas v. Trump, 433 F. Supp. 3d 581, 586 (S.D.N.Y. 2020)). By contrast, a defendant who makes a fact-based Rule 12(b)(1) motion submits extrinsic evidence. Carter, 822 F.3d at 57. If defendant’s extrinsic evidence reveals a dispute of fact whether jurisdiction is proper, plaintiff must proffer evidence to controvert defendant’s evidence. Id. To resolve a fact-based motion, the district court must then make findings of fact to determine whether plaintiff has standing to sue. Id. IV. DISCUSSION Haynes’ four-count complaint sets forth claims for: (1) negligence and malpractice; (2) conscious pain and suffering; (3) wrongful death; and (4) loss of consortium. Compl.
