M.J. et al v. GEORGETOWN UNIVERSITY MEDICAL CENTER et al, No. 1:2013cv00283 - Document 18 (D.D.C. 2013)
Court Description: MEMORANDUM OPINION to the Order on Defendant's Motion to Dismiss. Signed by Judge Gladys Kessler on 8/22/13. (CL, )
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA M.J., a minor, by and through Bianca Jarvis, his parent and natural guardian, Plaintiffs, Civil Action No. 13-283 (GK) v. Georgetown University Medical Center, et al., Defendants. MEMORANDUM OPINION Plaintiff this Bianca Jarvis medical malpractice against M. J.' the ("Jarvis" action, Georgetown or "Plaintiff") on behalf of University brings her minor Medical son, Center, Georgetown University Hospital, Lori A. Picco, M.D., and Phyllis M. Rattey, R.N. (collectively, the "Georgetown Defendants"), and the United States of America (the "Government"). This matter is before the Court on the Government's Motion Upon Opposition record [Dkt. herein, No. and 12], for consideration and Reply the Government's Motion is granted. [Dkt. reasons No. or-tile 16], stated HO-Llon, the entire below, the I. BACKGROUND 1 A. Factual Background On November 1, 1998, Jarvis was admitted to the Georgetown University Hospital of "abdominal Compl. that <J[ her 16. twenty-five weeks pregnant with complaints spasms and spontaneous Over the next several days, baby could be "timely infection and/or fetal distress." 6, 1998, Jarvis went attending physicians delivered via epidural, they "decided to rupture into determined cesarean found forego vaginal delivery." labor. section, that the Compl. she cesarean <J[<j[ 95, in the 17-68. <J[<J[ Compl. <J[<j[ that her but after was completely section 99-101. membranes." she was monitored so delivered Compl. of fetus and event of On November 69-74. The should be administering an dilated proceed and with a During the delivery, a sonogram of the fetus indicated "terminal fetal bradycardia." Compl. <J[ the fetus. 103. 2 Forceps and traction were then used to extract Compl. <J[ 105. 1 The facts and relevant background are taken from the Complaint [Dkt. No. 1-1], the Government's Certification Pursuant to 28 U.S.C. § 2679 [Dkt. No. 1-2], and the exhibits and declarations appended to the parties' briefs. [Dkt. Nos. 5-2, 12-1]. 2 Bradycardia is a slow heart rate. See STEDMAN'S MEDICAL DICTIONARY ["STEDMAN's"] 54300 (27th ed. 2000). Less than 100 beats per minute is considered to be bradycardia in a fetus. Id. -2- M.J. was born deli very, he "was rate[,]" and had on November chest." Compl. diagnosed neonatal weeks. and brain damage, and "perinatal intensive other ~~ no 1998, asphyxia, unit, 108-110. 3 M. J. which he to section. See Compl. B. deliver ~~ head, delivery, was neck and M.J. was distress admitted remained to for the sixteen from permanent global developmental Plaintiff attributes vaginally heart delay, to the specifically Defendants' rather than by cesarean 112, 117, 119. filed this 2013, more than 14 years after M.J.'s birth, medical Columbia Superior Court. the or Procedural Background On January 2, Jarvis M.J. his Upon a.m. effort now suffers timing and method of M. J. 's deli very, decision 12:27 respiratory and where orthopedic injuries, complications, on Following prematurity," care at respiratory bruising 106-07. extreme Compl. with "extensive ~~ with syndrome, blue, 7, Georgetown Defendants malpractice action in District of The case was initially brought against and Dr. Christian Macedonia, the doctors involved in M.J.'s delivery. On March 4, one 2013, of the Government substituted itself as a party defendant on behalf of 3 Asphyxia is oxygen deprivation resulting from the "[i]mpaired or absent exchange of oxygen and carbon dioxide on a ventilatory basis." See STEDMAN'S at 34 810. -3- Dr. Macedonia, and removed the case to this Court pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988 the (the "Westfall Act"), removal Macedonia United papers, was a States at the federal Army University Hospital. and 28 U.S.C. time employee, completing 2679. § of M.J.'s serving a According to as Dr. delivery, a Major fellowship at in the Georgetown Plaintiff's claim against Dr. Macedonia is therefore deemed to be an action against the United States under the Federal Tort Claims Act 28 u.s.c. § 2679(d). ("FTCA"), 28 U.S.C. 1346(b). § See Dr. Macedonia was dismissed as a defendant on April 10, 2013. On March 20, 2013, the Government Plaintiff's FTCA claim pursuant to Fed. lack of subject matter jurisdiction 2013, Plaintiff filed her Opposition R. [ Dkt. moved Civ. No. [Dkt. P. to 12 (b) (1) 5] . No. dismiss for On April 3, 12], and on May 15, 2013, the Government filed a Reply [Dkt. No. 16]. I I . STANDARD OF REVIEW Under Rule proving by a subject motion to 932 the plaintiff bears the preponderance of the evidence that matter F.3d 930, 12(b) (1), jurisdiction. (D.C. dismiss Cir. for See 2008). lack of -4- Shuler v. burden of Court has States, 531 the United In deciding whether to grant a jurisdiction, the court must "accept all true [.]" Admin., States of the Jerome 402 v. factual Stevens F.3d 1249, Gaubert, omitted) . The in Pharmaceuticals, 1253-54 499 Court allegations U.S. may (D.C. 315, also Inc. Cir. 327 [the] v. 2005) (1991)) consider complaint Food as Drug & (citing United (quotation marks matters outside the pleadings, and it may rest its decision on its own resolution of disputed facts. See Herbert v. Nat' 1 Acad. of Sciences, 974 (D.C. Cir. 1992). 4 F.2d 192, 197 III. ANALYSIS A. It The Federal Tort Claims Act is sovereign, United enacting basic is hornbook immune States v. the FTCA, law that from suit unless Mitchell, Congress sovereign immunity for 445 U.S. partially the it United consents 535, waived 538 States, as to be sued. (1980). By the Government's claims of "personal injury caused by the negligent or wrongful act or omission of any employee of the 4 Government while acting within the scope of his office or The parties refer to the difference between a "factual challenge" and a "facial challenge" to subject matter jurisdiction. See Gov' t' s Mot. at 2; Pl.'s Opp' n at 3. While the Court does not find explicit support for this dichotomy in D.C. Circuit case law, the distinction between the two types of motions is not material to resolving this Motion. The important point is that, while the Court may consider materials outside of the pleadings, it still accepts the factual allegations in the Complaint as true. See Jerome Stevens Pharmaceuticals, Inc., 402 F.3d at 1253-54. -5- employment." u.s.c. 28 conditioned such waiver 1346 (b). § on the Congress However, requirement that a plaintiff present her claim "in writing to the appropriate Federal agency within two years after such claim accrues," and thereafter file her action in court within six months of agency's final denial of her claim. 28 U.S.C. 2401(b). § Under the Westfall Act, the FTCA is the exclusive mechanism by which a plaintiff may seek damages for any "negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." § 2679(b) (1). Where, as in this case, a 28 U.S.C. plaintiff has originally sued the employee in his or her individual capacity, the Westfall Government Act under deems the the FTCA, action and to be requires the one against Government substituted as party defendant in the employee's place. u.s.c. § the to be See 28 2679(d) (2). Because substitution of the United States as a party might occur long after the expired, the actions initially employee, Westfall FTCA's two-year Act contains brought against limitations a "savings an period has provision" for individual Government subsequently converted into an FTCA claim against the Government, and thereafter dismissed -6- for failure to file an See Mittleman v. administrative claim. 410, 413 (D.C. Cir. 1997) (citing 28 United States, U.S.C. 104 F.3d 2679(d) (5) (A)). § In such cases, the savings clause provides a 60-day grace period for the plaintiff to file her claim with the appropriate agency, but only if such "claim would have been timely had it been filed on the date the underlying civil action was u.s.c. § 2679(d) (5). commenced [.]" 28 Otherwise, a claim not timely presented to the appropriate federal agency is "forever barred." 28 U.S.C. § 2401(b); Mittleman, 104 F.3d at 413. B. Plaintiff's Claim Is Time-Barred It is undisputed that .Jarvis did not file an administrative claim before commencing this case. (Decl. of parties Major Linda dispute, A. See Def.'s Mem. at 4 & Ex. 2 Chapman); however, whether Pl.'s Opp'n at 5. she may exhaust The her administrative remedies now that she is aware of Dr. Macedonia's previous status Government, as a federal employee. According Plaintiff's claim is barred by the statute of limitations. Plaintiff counters FTCA' s to two-year that her claim is not time-barred because it did not accrue until this year, in the alternative, that equitable permit her case to proceed. -7- tolling the should apply and to 1. M.J.'s Claim Accrued in 1998 Plaintiff first argues that M. J. 's claim did not accrue until March 2013, when she learned of Dr. Macedonia's status as a Government employee. Pl.'s Opp' n at 6-7. The Government contends that M.J.'s claim accrued on M.J.'s date of birth, when Jarvis learned Government. of injuries she now attributes to the Reply at 7-11. Accrual of a law. the claim under the FTCA is governed by federal See Sexton v. Cir. 1987). is Kubrick v. United States, 832 F.2d 629, 633 n.4 (D.C. The seminal case on FTCA medical malpractice claims United States, 444 U.S. 111 (1979). In Kubrick, the Supreme Court held that a medical malpractice claim accrues when the plaintiff knows hurt and who has critical facts that [s]he has been inflicted the know that the injury was U.S. at 122, 123. ~the injury," even if she does not ~negligently inflicted." Kubrick, The Court reasoned that: A plaintiff . armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government. Id. at 123. -8- 444 The D.C. proposition Circuit that nature of the has "a construed plaintiff's differently, a medical to stand understanding [allegedly improper] begin the statute running." Kubrick treatment Sexton, 832 malpractice of the the basic should suffice to F.2d at claim for Stated 633. accrues when the plaintiff possesses sufficient "historical facts associated with the injury" to permit her to "undertake investigation to determine whether a Id. at 1355, 633-34; 1359 see when plaintiff "is, should be, aware 2010) 607 F. 3d or in the exercise of reasonable diligence of both these United States, (a medical malpractice claim accrues [her] some act of the defendant") Applying reasonably diligent cause of action may lie." also McCullough v. (11th Cir. a injury and its connection with (citation omitted). principles to the instant case, it is undisputed that Jarvis knew of M.J.'s injuries on the day he was born. According to the Complaint, --------=-n'--'o'-----_r__ce_sRiratory bruising These on his obvious diagnosis syndrome, of effort or head, neck physical perinatal heart and newborn M. J. was "blue with rate," had chest." symptoms, and asphyxia and put Jarvis on notice that M.J. and Comp l. the "ext-ensive en en doctors' respiratory 1 0 6, 107 . related distress had suffered an injury related to oxygen deprivation, even if she did not then know its -9- full extent or its Wallace v. Kato, future impact on M. J.' s 549 U.S. 384, 391 (2007) development. See ("The cause of action accrues even though the full extent of the injury is not then known or predictable.") Jarvis also (citations omitted). possessed "reasonably diligent" sufficient information to prompt inquiry into whether Defendants' a medical care - specifically the decision to proceed by vaginal delivery rather than Sexton, cesarean See It is uncontested that Dr. 832 F. 2d at 633-34. initially condition. Picco caused M. J. 's cesarean section informed section, Jarvis before that the opted for vaginal delivery. M.J. doctors Compl. ~ would changed be delivered their minds by and 96; Pl.'s Opp'n, Ex. A at Consent for Surgery, Anesthetics, and Other Medical Services and Operative Report. This in fact, conjunction with M.J.'s conspicuous injuries, gave Jarvis a reasonable basis to question whether the doctors' choice was proper, and to seek further _______ l_egal and medical advice on that question. Plaintiff contends in her Opposition that her claim did not accrue in 1998 because Defendants told her that M.J.'s condition was caused by prematurity. Pl.'s Opp' n at 6. However, the Complaint itself alleges that "M.J. was diagnosed with perinatal asphyxia, respiratory distress -10- syndrome, and extreme prematurity." Compl. fact injury that an plaintiff's has duty to make potential causes once underlying that multiple a cause. (plaintiffs' than belief negligence understood she did not negate a into all other is of relevant facts aware the Sexton, 8 32 resulted from postpone nature does inquiry death not causes reasonable See that "basic Under Sexton, the 110 (emphasis added). CJI accrual the of F. 2d at 633-34 leukemia where rather plaintiff negligent] [allegedly treatment"). Plaintiff also argues that her FTCA claim could not accrue until she injury. discovered 947, Ramos v. 951 but that alter [accrual] the of M.J.'s rejected it. 429 F. App'x ("That [Plaintiff] did not learn until government analysis."); the in The D.C. Circuit has not addressed Dep't of Health and Human Servs., (1st Cir. 2003) knowledge involvement other circuits have (11th Cir. 2011) later 64, Government's Pl.'s Opp'n at 6-7. such an argument, e.g., the was the proper Skwira v. defendant does United States, not 344 F.3d ("In the medical malpractice context, legal status of -11- the physician as a federal employee is original) required by including for claim accrual.") the savings clause (emphasis in (citing cases) . 5 Further, not in the Westfall Act so as to give additional time for exhaustion to plaintiffs whose state already court provided actions for initially unaware that See 28 U.S.C. § would otherwise circumstances in the Government 2679(d) (5) (A) . 6 is be which timely, a Congress plaintiff is the proper defendant. There would be little need for this clause if Congress also intended a plaintiff's claim not to accrue until Therefore, she M. J. 's knew of the claim accrued Government's in 1998 role in regardless her of case. whether 5 Plaintiff cites Valdez v. United States, 518 F.3d 173 (2d Cir. 2008) and Danzan v. United States, 762 F.2d 56 (7th Cir. 1985), but neither endorse the rule she urges. In Valdez, the Second Circuit merely observed that equitable tolling might apply where a plaintiff had no reason to know her medical provider was a government entity. Valdez, 518 F.3d at 178 n.2 & 182-85. In Danzan, the Seventh Circuit held that when an injury has a natural cause (in that case, cancer), and an accelerating cause -----~ tt-r±-butab-l-e-----to----the-@overnment--(-ne-g--1--±-gen L Lre-atm-ent-)---,-----t-he-PTeA: · - - - - claim does not accrue until a plaintiff has reason to know of the Government-related cause. Danzan, 762 F.2d at 59-60. Neither Valdez nor Danzan held that a plaintiff's claim does not accrue until she knows that the employee alleged to have caused her injury is a government employee. 6 The savings clause does not apply in this case because Jarvis did not file her state court action until January 2013, more than fourteen years after the statute of limitations expired. 28 U.S.C. § 2679(d) (5) (A). -12- Jarvis had any reason to suspect that Dr. Macedonia was a federal employee. 2. Equitable Tolling Does Not Apply Plaintiff earlier, the also argues that even statute of limitations if M. J.' s claim accrued should be equitably tolled because she·had no reason to suspect Dr. Macedonia was a federal employee, District and of because Columbia FTCA's limitations subject matter equitable however, her claims law. 7 The period is jurisdiction, tolling. 8 because, The a and Court were otherwise Government counters prerequisite to therefore, is need reach not timely that the not under the Court's subject that to issue, as the Government also points out, Plaintiff has not made a convincing case for equitable tolling. Reply at 4-7. Equitable tolling, to avoid the bar of the where it applies, a plaintiff limitations period if .despite all diligence she is unable to obtain vi tal ---------------- "permits due information bearing on 7 Under District of Columbia law, the three year statute of limitations for medical malpractice claims of minors is tolled until their eighteenth birthday. D.C. Code §§ 12-301, 12302 (a) (1). 8 Notwithstanding this implicit dispute about whether the FTCA's limitation period is "jurisdictional," the parties agree that Rule 12(b) (1) supplies the applicable standard of review for all issues raised in this Motion. See Def.' s Mem. at 2-3; Pl.'s Opp'n at 3-4. -13- the existence of her claim." 155 F.3d 575, 579 Healthcare Corp., "Generally, a (D.C. burden of pursuing extraordinary DiGuglielmo, circumstance 408, equitable elements: ( 1) stood 418 Cada tolling that and [her] in (2005) v. Baxter 1990)). Cir. (7th 451 diligently, rights 544 U.S. 44 6, seeking two (citing 1998) F.2d litigant [her] Cir. 920 establishing Smith-Haynie v. Dist. of Columbia, bears the has been [ s] he some that ( 2) Pace way." (citing Irwin v. v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)). In Norman v. United States, 467 F.3d 773, 775-76 2006), our Court circumstances plaintiff, with nearly Norman, the However, of Appeals driver's addressed identical was (D.C. Cir. equitable tolling to presented here. hit by a insurance those rental car and filed provider shortly a in The claim thereafter. the insurance company did not inform him until two and a half years later that the driver was a federal employee acting Norman subsequently filed within the scope of his employment. his case within the District Columbia's of limitations period for personal injury actions, FTCA's two-year limitations period. three-year but outside the The District Court rejected Norman's request for equitable tolling and dismissed the case as time-barred. On appeal, the Court -14- of Appeals declined to address whether the FTCA limitations period equitably tolled because it concluded that, "failed to tolling." The Norman, the same Jarvis of employer." has the M.J.'s for holds be in any event, Norman requirement here. not identified FTCA' s two-year diligent Her Id. Columbia law. enough diligence conclusion reasonably because due ever for equitable Id. at 776. expiration less meet may claim is to do the of discover so is prior [Dr. the Macedonia's] excused under Circuit emphasized, the to in limitations-much not timely tolling plaintiff efforts statute otherwise As the D. C. equitable "any efforts-to failure Like simply District "[i] f FTCA's of that were statute of limitations would have no bite [,]" because plaintiffs would be able to circumvent the statute by merely filing jurisdiction with a longer limitations period. In addition, the due diligence claims in a Id. requirement for equitable tolling is not relaxed merely because Jarvis had no basis during the fourteen years that elapsed since the injury know that Dr. Macedonia worked for the Government. of Appeals tolling observed, would no "if prejudice were longer be restricted -15- enough, to occurred to As the Court then equitable 'extraordinary and carefully circumscribed Id. circumstances.'" at 777 (citing Smith-Haynie, 155 F.3d at 580) . 9 Plaintiff attempts the plaintiff in that tort feasor was a to distinguish case had a Norman by federal employee because "when dealing with an high likelihood that the driver was for any one of the numerous The D.C. Pl.'s Opp'n at 11. an argument, that greater reason to assume the automobile accident in the District of Columbia, a arguing there would be going about his business government agencies in the area." Circuit emphatically rejected such observing that "[w] e think it entirely unworkable to calibrate the required level of due diligence to the number of federal occurred." must have Norman, employees Norman, the same Plaintiff's living 467 in the F. 3d at meaning 778. region Instead, everywhere." "claim for where equitable Id. tolling the accident "due diligence Here, fails as in because at no time during the FTCA's two-year statute of limitations did 9 In fact, in Norman, the D.C. Circuit concluded that equitable tolling would not even apply if the insurance carrier had "deliberately withheld information about [the tortfeasor's] employment status" because Norman sought "equitable tolling against the government, not against [the insurance company]." Norman, 467 F.3d at 777 (emphasis added) -16- [s]he make any e~fort - diligent or otherwise - to identify [Dr. Macedonia's] employer." Id. 10 "It goes without saying that statutes of limitations often make it valid impossible claims." to enforce Kubrick, 444 what U.S. were at otherwise As 125. perfectly the Seventh Circuit observed in Sexton, any statute of limitations that puts inquiry burdens on a plaintiff, as this one clearly does, entails a degree of ghoulish behavior. Patients or survivors, whose instinct may well be to shut off from their minds the grim experience through which they have passed, are required instead to follow up on their leads. For persons of any sensitivity this must be a difficult or even repugnant process. Yet, to protect defendants from stale claims, legislatures put potential plaintiffs to the hard choice of proceeding with such inquiries or risking loss of possible claims. 832 F.2d at 636 (citations omitted). The FTCA bars claimants from bringing suit in federal court unless they have presented their claim to the Government within two years of the claim's accrual. u.s. 106, 113 (1993). Jarvis McNeil v. United States, never 10 filed any 508 administrative The Government argues that Plaintiff could have quickly discovered Dr. Macedonia's status as a federal employee, and cites a number of public websites listing Dr. Macedonia's affiliation with the United States Army. See Gov't's Reply at 6 n. 2. Given that this information was presented for the first time in the Government's Reply, and Plaintiff did not have the opportunity to respond to it, the Court does not rely on it. -17- claim, and is now time barred from doing so. Accordingly, Plaintiff's claim against the Government shall be dismissed for lack of subject matter jurisdiction. C. The Case Shall Be Remanded to Superior Court The claim against Dr. Macedonia was the sole basis on which the case was removed to this Court. [Dkt. No. 1]. Having concluded that the Court lacks jurisdiction over such claim, the Court shall remand the case to Superior Court. IV. CONCLUSION For granted, the foregoing reasons, the Government's Motion and the case shall be remanded to Superior Court. is An Order shall accompany this Memorandum Opinion. 11 August 22, 2013 Copies to: attorneys on record via ECF 11 Plaintiff requests that if the Court determines that equitable tolling applies but still dismisses the case due to her failure to exhaust her administrative remedies, the Court should dismiss the case without prejudice. Pl.'s Opp' n at 12. Because the Court determines that equitable tolling does not apply and that Plaintiff's claims are untimely, it shall dismiss the case with prejudice. -18-
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