Castelluccio v. United States, 2014 U.S. Dist. LEXIS 55930.
udges: THOMAS G. WILSON, UNITED STATES MAGISTRATE JUDGE.
Opinion by: THOMAS G. WILSON
REPORT AND RECOMMENDATION
The plaintiff, Ronna Kimberlee Castelluccio, seeks damages from the defendant United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. 1346(b), 2671 et seq., for the defendant’s alleged negligence in improperly disclosing her confidential medical records to her disability insurance provider without a valid authorization. The defendant has filed a motion to dismiss on the ground of lack of subject matter jurisdiction. In this respect, the defendant demonstrates that the plaintiff failed to file an administrative claim within the time limits prescribed by the FTCA. As a result, the court lacks subject matter jurisdiction over this suit. Accordingly, I recommend that the motion to dismiss be granted.
The plaintiff is an honorably  discharged veteran of the United States Air Force (Doc. 1, ¶8). Following her discharge from the military, she worked as a financial analyst for Fifth Third Bank (id., ¶9; Doc. 21, ¶2).
In February 2005, the plaintiff was in an automobile accident (Doc. 1, ¶11). As a result, she sustained neurologic impairment and was diagnosed with traumatic brain injury (id., ¶¶12, 14). In November 2005, the plaintiff could no longer perform the functions of her job (id., ¶13). Consequently, the plaintiff submitted a claim for disability benefits to her disability insurance policy carrier, UNUM Provident (“UNUM”) (id., ¶¶10, 15). UNUM approved the plaintiff’s claim, and the plaintiff began receiving monthly disability payments of $4,754.17 (id., ¶16).1
The plaintiff signed in 2005 a medical release authorizing UNUM to obtain her medical records in connection with her disability insurance (see Doc. 21-1, ¶5). Furthermore, the plaintiff personally provided UNUM, upon its  request, copies of her medical records “when [UNUM] was unable to obtain the records directly from [her] medical providers” (Doc. 21-1, ¶¶3, 4). In this regard, the plaintiff would review her medical records and “remove what I considered to be private or irrelevant information from the medical records before sending the excerpted copies on to UNUM” (id., ¶4).
In January 2008, UNUM asked the plaintiff to sign a new medical records release because her previous one expired (id., ¶5). The plaintiff refused to sign a new medical records release because it “was worded far too broadly for me to be comfortable with signing it” (id., ¶6). However, the plaintiff continued to provide to UNUM copies of her redacted medical records upon its request (id.).
The plaintiff received treatment for her injuries from various physicians (see Doc. 1, ¶¶18-22). As a veteran, the plaintiff was eligible to receive medical care at Veterans Affairs hospitals (id., ¶8). Dr. Kari Pedersen is a physician at Bay Pines Veterans Affairs Medical Center (“VA”) who treated the plaintiff for traumatic brain injury (id., ¶¶22, 23). On June 16, 2009, Dr. Pedersen was unavailable to see the plaintiff at her scheduled appointment,  and the plaintiff was seen instead at the VA by Dr. Jorge J. Villalba (id., ¶¶24, 25).
The plaintiff states that, in June or July 2009, UNUM requested her help in obtaining updated copies of her medical records (Doc. 21-1, ¶7). When the plaintiff reviewed her VA medical records, she discovered what she believed to be an “aberrant, incorrect” diagnosis from Dr. Villalba of”bipolar disorder and not traumatic brain injury” (Doc. 1, ¶¶26, 27; Doc. 21, ¶5; Doc. 21-1, ¶9). Consequently, before forwarding her VA medical records to UNUM, the plaintiff “thought [she] had deleted all documentation of [her] June 2009 appointment with Dr. Villalba” from those records (Doc. 21-1, ¶10).
However, UNUM had also received a copy of the plaintiff’s medical records from the VA, and those records included Dr. Villalba’s evaluation of the plaintiff (Doc. 1, ¶33; Doc. 21, ¶7). As outlined in UNUM’s correspondence to the plaintiff in November and December 2009, UNUM sought the plaintiff’s medical records from the VA after the plaintiff had been non-responsive to several earlier requests for her medical records. Thus, UNUM’s correspondence to the plaintiff stated, in pertinent part (Doc. 15-2, p. 1; Doc. 15-4,  p. 2):
On February 29, 2009 we did receive … contact information regarding your treating physician at the U.S. Department of Veterans Affairs, Dr. Kari Pedersen, PMR.
On June 10, 2009, we requested your updated medical records from Dr. Pedersen. These records were received through July 2009.
UNUM’s letters to the plaintiff also discussed her medical records from several doctors, including Dr. Villalba. In particular, the letter of November 29, 2009, stated (Doc. 15-2, p. 2):
Your most recent evaluation performed by your psychiatrist, Dr. Jorge Villalba, who opined a diagnoses of bipolar disorder and ruled out Cluster B traits. His Cognitive Assessment Testing revealed a score of 29/30, which ruled out minimal cognitive impairment. His impression was post concussive syndrome with tension headaches and ruled out TBI [traumatic brain injury].
In closing, UNUM informed the plaintiff that the information in its file indicated that the plaintiff was able to perform the duties of her occupation (id., p. 3).
UNUM’s November correspondence further requested the plaintiff to sign an authorization permitting UNUM to obtain a copy of the plaintiff’s Social Security file to determine the Social Security  Administration’s basis for awarding her disability benefits (Doc. 15-2, p. 3). UNUM noted that, if it did not receive the requested information within 30 days, it would base its benefits decision on the information it had, which would most likely result in the termination of the plaintiff’s long-term disability benefits (id.).
In correspondence dated December 29, 2009, UNUM informed the plaintiff that it had not received the authorization it requested from her and, after repeating much of the information contained in the November letter, stated that it was terminating the plaintiff’s long-term disability benefits based on its determination that the plaintiff had the functional capacity to perform her own occupation (Doc. 15-4, pp. 1-4). The letter again referred to the recent evaluation by Dr. Villalba and iterated the opinions that had previously been set forth (id., pp. 2-3).
The plaintiff received UNUM’s December 2009 letter terminating her disability benefits (Doc. 21-1, ¶11). The plaintiff noted that UNUM’s letter cited Dr. Villalba’s evaluation in support of that decision, and she believed that Dr. Villalba’s erroneous diagnosis was a reason UNUM terminated her disability benefits  (id.). Further, the plaintiff said that she “assumed that [she] must have inadvertently included Dr. Villalba’s erroneous diagnosis in the medical records [she] sent UNUM” (id., ¶12). Thus, the plaintiff said “I had no reason to think that … [the VA] would have released my medical records to UNUM, because I knew that … [the VA] did not have any authorization to release my medical records” (id., ¶13).
The plaintiff appealed UNUM’s decision to terminate her disability insurance benefits, but the appeal was rejected (Doc. 21, ¶12; Doc. 21-1, ¶20). On October 20, 2010, during the process of that appeal, the plaintiff reviewed UNUM’s claims file and discovered that the VA had provided UNUM with her medical records, including Dr. Villalba’s evaluation, based on an expired medical release from 2005 (Doc. 21-1, ¶14). The plaintiff filed a complaint with the VA regarding the release of her medical records, and the VA acknowledged that it had improperly disclosed the plaintiff’s medical records to UNUM (Doc. 1-2, pp. 3-7; Doc. 21, ¶10).
On October 17, 2012, the plaintiff submitted an administrative tort claim to the Government, alleging that the VA improperly released her medical records and,  as a result, her monthly disability insurance benefits were terminated (Doc. 1-2, p. 1; Doc. 15-5; Doc. 21, ¶13). The plaintiff’s administrative claim was denied on the grounds that it was untimely, and that the evidence did not show that the plaintiff’s disability insurance was cancelled due to the VA’s negligence (Doc. 1-2, pp. 1-2).
In September 2013, the plaintiff filed this lawsuit against the defendant pursuant to the FTCA, alleging five counts of negligence in connection with the defendant’s improper release of the plaintiff’s confidential medical records (Doc. 1). Specifically, the plaintiff alleges that UNUM’s decision to terminate her disability insurance benefits “was … a direct result of [the VA’s] improper and unauthorized release” of her psychiatric medical records (id., ¶36; see also Doc. 21, ¶12). The plaintiff seeks general compensatory damages, damages for emotional distress, pain and mental anguish, and recovery for the loss of her disability insurance benefits (Doc. 1, ¶75).
The defendant moved to dismiss the plaintiff’s complaint for lack of subject matter jurisdiction pursuant toRule 12(b)(1), F.R.Civ.P., arguing that the plaintiff failed to file her claim with  the government within two years after the claim accrued, i.e., when she received notice in December 2009 that her disability insurance benefits were cancelled (Doc. 15, p. 2). The defendant also argues that the plaintiff’s claim is not cognizable because she essentially alleges that Dr. Villalba’s alleged misdiagnosis caused her injury, and such a claim is barred by the misrepresentation exception to the FTCA (id.).
The plaintiff responds in her opposition memorandum that her claim is timely because it accrued, at the earliest, on October 20, 2010, the date she learned that the defendant had improperly disclosed her medical records (Doc. 21, p. 4). Alternatively, the plaintiff contends that her claim did not accrue until March 24, 2011, when she had exhausted her administrative appeal under the Employee Retirement Income Security Act of 1974 (“ERISA”) to restore her disability benefits (id., p. 5). Furthermore, the plaintiff disputes that the misrepresentation exception to the FTCA applies because the erroneous contents of the VA records are irrelevant to her negligence complaint (id.). The defendant, with leave of court, filed a reply memorandum (Doc. 31).
Oral argument was conducted  on the motion. In connection with the misrepresentation argument, I asked plaintiff’s counsel if Dr. Villalba’s alleged erroneous diagnosis has anything to do with her negligence claim, to which plaintiff’s counsel responded “no.” Plaintiff’s counsel elaborated that the plaintiff’s negligence claim is “strictly a claim of an improper records release,” and that Dr. Villalba’s diagnosis “is not necessary to the outcome of the case.” Thus, the plaintiff disclaims reliance on Dr. Villalba’s alleged erroneous diagnosis as a basis for damages.
A motion to dismiss under Rule 12(b)(1), F.R.Civ.P., can be resolved either on the face of the complaint, or on the basis of factual submissions. Carmichael v. Kellogg, Brown & Root Services, Inc., 572 F.3d 1271, 1279 (11th Cir. 2009), cert. denied, ___ U.S. ___, 130 S. Ct. 3499, 177 L. Ed. 2d 1089 (2010). As the Eleventh Circuit explained in Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335-36 (11th Cir. 2013)(citations omitted):
Facial attacks to subject matter jurisdiction require the court merely to look and see if the plaintiff’s complaint has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in h[er] complaint are taken as  true for the purposes of the motion. However, in a factual challenge to subject matter jurisdiction, a district court can “consider extrinsic evidence such as deposition testimony and affidavits.” In so doing, a district court is “free to weigh the facts” and is “not constrained to view them in the light most favorable” to the plaintiff.
Thus, “[b]ecause at issue … is the trial court’s jurisdiction — its very power to hear the case …. [t]he existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir. 1981) (citations omitted), cert. denied, 454 U.S. 897, 102 S. Ct. 396, 70 L. Ed. 2d 212 (1981).
The defendant’s motion presents a factual challenge to jurisdiction because consideration of the plaintiff’s affidavit and other exhibits is necessary to resolve the disputed jurisdictional facts. The plaintiff argues that it is improper for the court to resolve the disputed jurisdictional facts because those facts are intertwined with the merits of her case (Doc. 21, p. 19). This contention is baseless because the dispositive jurisdictional facts regarding the accrual of the plaintiff’s claim are  distinct from whether the defendant was negligent.
“The FTCA provides a limited waiver of the United States’ sovereign immunity for tort claims,” Motta ex rel. A.M. v. United States, 717 F.3d 840, 843 (11th Cir. 2013), and it must “be strictly construed … in favor of the sovereign.” Lane v. Pena, 518 U.S. 187, 192, 116 S. Ct. 2092, 135 L. Ed. 2d 486 (1996). In this regard, the FTCA, 28 U.S.C. 1346(b), 2671 et seq., affords a plaintiff two years from the date a claim against the United States accrues to file a written claim with the appropriate agency and thereby preserve the right to file a tort suit in federal court against the United States. 28 U.S.C. 2401(b), 2675(a). The filing of a timely claim is a jurisdictional requirement that cannot be waived. Therefore, an action brought against the United States under the FTCA must be dismissed if a plaintiff fails to file a timely administrative claim with the appropriate federal agency. United States v. Kubrick, 444 U.S. 111, 113, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979).
The two-year statute of limitation for the FTCA begins to accrue at the time of the injury. Id. at 120. The defendant argues that the plaintiff submitted her administrative claim to the government after the two-year statute of limitation  expired and, therefore, the court is without subject matter jurisdiction over this case (Doc. 15, pp. 2, 5). This contention is meritorious.
In my view, this case is this simple: The plaintiff mistakenly assumed in December 2009 that she, not the VA, had provided Dr. Villalba’s records to UNUM, and asserts that she did not discover her mistake until October 20, 2010, when she reviewed a copy of her UNUM claims file. It is unreasonable to think that the limitations period did not begin until the plaintiff discovered her own mistake. In other words, the plaintiff should not benefit from her mistake. Consequently, the limitations period began no later than December 2009, so that the administrative claim submitted on October 17, 2012, and received on October 19, 2012, was untimely.
The plaintiff alleges that she was injured when her insurance company terminated her monthly disability benefits due to the defendant’s unauthorized disclosure of her medical records (see Doc. 1, ¶¶35-36, 75; seeDoc. 15-5, p. 1). UNUM informed the plaintiff that her disability benefits were terminated in correspondence dated December 29, 2009 (Doc. 21-1, ¶11). The defendant argues that, accordingly, the plaintiff  was injured on or about December 29, 2009 (Doc. 15, pp. 5-7; Doc. 15-4). The plaintiff, however, did not submit her administrative claim until October 17, 2012, more than two years and nine months later.2 Therefore, the plaintiff’s claim is barred as untimely. See United States v. Kubrick, supra.
The plaintiff responds that, pursuant to the “diligence-discovery rule of accrual,” her FTCA claim did not accrue until October 20, 2010, the date that she discovered that her injury was caused by the defendant (Doc. 21, pp. 4, 6). Thus, that is the date the plaintiff allegedly learned that the defendant improperly disclosed her medical records to UNUM.
However, the FTCA’s statute of limitation generally commences when the injury is inflicted, not when the plaintiff learns she was injured. United States v. Kubrick, supra, 444 U.S. at 111; Price v. United States, 775 F.2d 1491, 1493-94 (11th Cir. 1985);  Auger v. United States, 382 Fed.Appx. 901, 902 (11th Cir. 2010). Courts have carved out an exception to the general rule in medical malpractice and wrongful death claims, holding that such claims accrue “when the plaintiff is, or in the exercise of reasonable diligence should be, aware of both her injury and its connection with some act of the defendant.” Diaz v. United States, 165 F.3d 1337, 1339 (11th Cir. 1999) (“diligence discovery rule of accrual”).
However, this is not a medical malpractice or wrongful death case. Furthermore, the plaintiff does not cite any Eleventh Circuit caselaw extending this exception to other types of cases.
The plaintiff, citing to dicta in Diaz v. United States, supra, asserts that the Eleventh Circuit approves the application of the diligence discovery rule of accrual “to non-malpractice wrongful scenarios where [the] Government’s role is obscure” (Doc. 21, p. 12). However, as the defendant points out, Diaz did not expand the applicability of this exception beyond medical malpractice or wrongful death cases. Furthermore, more recent Eleventh Circuit caselaw reiterates that it is a narrow exception. See Auger v. United States, supra, 382 Fed.Appx. at 902.
In  addition, the rationale underlying the diligence discovery rule of accrual is inapplicable to these circumstances (Doc. 15, pp. 8-9). Thus, the exception protects FTCA plaintiffs who are “blamelessly unaware of their claim” because the injury has not yet manifested itself or the facts establishing a causal link between the injury and the defendant are in the control of the governmental tortfeasor or are otherwise not evident. Diaz v. United States, supra, 165 F.3d at 1339; see also Price v. United States, supra, 775 F.2d at 1493, 1494.
As the Supreme Court discussed in United States v. Kubrick, supra, 444 U.S. at 121 n.7, these circumstances most commonly arise in medical malpractice cases (quoting Restatement (Second) of Torts, §899, Comment e, pp. 444-45 (1979)):
[S]ince many of the consequences of medical malpractice often do not become known or apparent for a period longer than that of the statute, the injured plaintiff is left without a remedy. The second reason is that the nature of the tort itself and the character of the injury will frequently prevent knowledge of what is wrong, so that the plaintiff is forced to rely upon what he is told by the physician or surgeon.
No analogous  circumstances exist here that warrant application of the diligence discovery rule of accrual. Thus, the plaintiff indisputably was informed of an injury no later than December 2009, when UNUM sent her a letter terminating her disability insurance benefits (Doc. 21-1, ¶11).
Furthermore, UNUM’s letters to the plaintiff in November 2009 and December 2009 regarding her disability benefits evinced a connection between the plaintiff’s injury and the defendant. See United States v. Kubrick, supra, 444 U.S. at 122; Diaz v. United States, supra, 165 F.3d at 1339. Thus, the plaintiff concluded that her disability benefits were terminated, in part, because of Dr. Villalba’s allegedly erroneous diagnosis (Doc. 21-1, ¶11), which the plaintiff assumed that she accidentally disclosed to UNUM. However, UNUM’s correspondence indicated that UNUM had requested, and received, the plaintiff’s VA medical records from the VA (Doc. 15-2, p. 1; Doc. 15-4, p. 2), thereby connecting the plaintiff’s injury to the defendant.
Specifically, UNUM’s letters informed the plaintiff that, after she failed to respond to several requests from UNUM for updated medical records (id.),
we requested your updated medical records  from Dr. Pedersen [a VA physician]. These records were received through July 2009.
Notably, Dr. Villalba is a physician at the VA who saw the plaintiff when Dr. Pedersen was unavailable. Therefore, UNUM’s correspondence provided facts linking the disclosure of her VA medical records to the defendant (which, in turn, should have prompted the plaintiff to investigate whether the defendant gave UNUM those records without an authorization). Accordingly, this case does not present a circumstance where the plaintiff had no reason to know that her injury was connected to some act of the defendant, or where the facts connecting the defendant to the plaintiff’s injury were solely in the government’s control. SeePrice v. United States, supra, 775 F.2d at 1493-94(the statute of limitations is appropriately tolled where the plaintiff has no reason to know that his injury was connected to some act of the defendant); Auger v. United States, supra, 382 Fed.Appx. at 903 (“Unlike the medical malpractice exception, the potential tortfeasor was not in the sole possession of information indicating either injury or the causal link between the tortfeasor’s conduct and the injury.”).
In sum, none of the factors  that justify the application of the diligence discovery rule of accrual to medical malpractice and wrongful death claims is present in this case. See United States v. Kubrick, supra, 444 U.S. at 122.
The plaintiff argues that the diligence discovery rule of accrual should apply because she “was blamelessly ignorant of the cause of her injury,” as the plaintiff assumed that she had provided to UNUM the medical records containing Dr. Villalba’s evaluation (Doc. 21, p. 9). However, as indicated, UNUM’s November and December 2009 letters to the plaintiff gave the plaintiff reason to attribute the production of those records to the VA. Therefore, the plaintiff was not “blamelessly ignorant” of who caused her injury.
The plaintiff also argues that the discovery of the cause of her injury was complicated by the involvement of a third party, her disability insurer UNUM (id., pp. 10-11). Specifically, the plaintiff argues that, because UNUM, a wholly separate entity from the VA, informed her of the termination of her disability insurance benefits, “[d]etermining exactly who was responsible for my injury was not readily apparent from the injury itself” (id., p. 10). This contention is meritless  because UNUM actually facilitated the identification of the alleged tortfeasor by providing the plaintiff with facts linking the defendant to her injury.
The plaintiff argues further that “[t]he weight of the case law” supports the application of the diligence discovery rule of accrual “in settings other than medical malpractice” (id., p. 8). However, this contention is unpersuasive because the cases cited by the plaintiff, which are from jurisdictions outside the Eleventh Circuit, are inapposite.
Thus, in Attallah v. United States, 955 F.2d 776, 780 (1st Cir. 1992), the plaintiffs brought an FTCA claim for property damages resulting from the robbery and murder of the plaintiffs’ courier by United States Customs Agents. The First Circuit ruled that the claim, brought several years after the courier’s death, was timely because the plaintiffs could not have known of a connection between their injury and the government until the customs agents were indicted several years after the murder. Id. Unlike Attallah, the plaintiff in this case possessed facts connecting the defendant to her injury when she was injured.
In Lhotka v. United States, 114 F.3d 751, 753 (8th Cir. 1997), the plaintiffs  filed an FTCA claim for flooding that occurred on their property one year after the government built dikes on an easement. The Eighth Circuit applied the diligence discovery rule of accrual in that case because the plaintiffs could not have discovered who caused their injury before the injury manifested itself one year after the government’s action.Lhotka, therefore, is also inapposite to this case.
Finally, in Stoleson v. United States, 629 F.2d 1265 (7th Cir. 1980), the plaintiff brought an FTCA claim for health problems caused by nitroglycerin exposure. The claim, brought several years after the plaintiff’s exposure, was timely because it was several years before medical evidence linked nitroglycerin exposure to her medical problems. Id. at 1270. Thus, Stoleson is inapposite to this case because Stoleson initially lacked the specialized medical evidence necessary to connect her injury to the defendant’s conduct.
In sum, the parties agreed at the hearing that the plaintiffs in those cases commonly shared an inability to access knowledge critical to their claims, but that is not the circumstance here. Therefore, those cases do not support the plaintiff’s contention that the diligence  discovery accrual rule is applicable in this case.
To the contrary, the application of that exception to this case, where there were no impediments to the plaintiff’s discovery of her injury and the defendant’s connection to it, would improperly expand the Government’s limited waiver of its sovereign immunity and defeat section 2401(b)’s purpose to encourage the prompt presentation of claims. United States v. Kubrick, supra, 444 U.S. at 117-18 (“in construing the statute of limitations … we should not take it upon ourselves to extend the waiver beyond that which Congress intended”); Phillips v. United States, 260 F.3d 1316, 1318 (11th Cir. 2001) (the FTCA’s waiver of sovereign immunity “must be strictly construed”). Accordingly, the diligence discovery rule of accrual is not applicable here.
Moreover, even if something akin to that exception were applied to this case, the plaintiff’s claim would still be untimely. Thus, pursuant to the diligence discovery accrual rule, “the FTCA accrues when the plaintiff is, or in the exercise of reasonable diligence should be, aware of both h[er] injury and its connection with some act of the defendant.” McCullough v. United States, 607 F.3d 1355, 1359 (11th Cir. 2010).  Therefore, it is not enough that the plaintiff did not discover the connection between her injury and the defendant until she reviewed her UNUM claim file on October 20, 2010 (Doc. 21, pp. 7-8). Rather, the issue is whether, in the exercise of reasonable diligence, the plaintiff should have been aware of a connection between the defendant and the disclosure of her VA medical records when she received UNUM’s letter terminating her benefits.
As discussed above, UNUM’s letters to the plaintiff in November and December 2009 indicated that UNUM had received the plaintiff’s VA medical records from the VA (Docs. 15-2, 15-4). Therefore, the plaintiff, in the exercise of reasonable diligence, should have perceived a connection between the defendant and disclosure of her VA medical records, and investigated it at that time. See Chamness By and Through Chamness v. United States, 835 F.2d 1350, 1353 (11th Cir. 1988) (“The FTCA statute is not tolled by ignorance from a lack of diligence.”); Ignacio v. United States, 1997 U.S. App. LEXIS 5395, 1997 WL 129315 at *1 (9th Cir. 1997) (“This is essentially an inquiry notice rule. When the plaintiff has sufficient information to begin asking questions, the claim accrues for the  purposes of § 2401(b)”).
At oral argument, plaintiff’s counsel asserted that nothing in UNUM’s letter indicated to the plaintiff that the VA had provided her records to UNUM. Thus, her counsel argued that the plaintiff is merely a layperson unfamiliar with medical terminology and, therefore, she would not have known what the letter meant. This contention is baseless, as the pertinent portion of the letter states in plain English that UNUM asked the plaintiff multiple times for her medical records and that, after it did not receive them from her, it requested the records from her VA physician and received them (Docs. 15-2, 15-4).
Furthermore, the plaintiff is not fairly characterized as a layperson in this regard because she has been the gatekeeper of her medical records for years. Thus, the plaintiff expressly declined to sign a medical records release because it was too broadly worded, and for years culled through her medical records to delete medical information that she deemed irrelevant before providing UNUM with her records. Indeed, the plaintiff intentionally withheld from her submissions to UNUM Dr. Villalba’s opinion, and that opinion is clearly relevant.
The plaintiff also contends  that she had no reason to know prior to October 20, 2010, that the VA had disclosed her medical records because she knew UNUM had no valid authorization to obtain them from her medical providers (Doc. 21, p. 9). However, the issue is not the plaintiff’s awareness that she had been legally wronged, but rather whether there was evidence of a connection between the injury and the defendant. United States v. Kubrick, supra, 444 U.S. at 121-22 (the FTCA does not postpone the running of the limitations period until the plaintiff is aware that he has been legally wronged). Thus, as the court stated inDiaz v. United States, supra, 165 F.3d at 1339:
Under this rule, the plaintiff need not know that she has a legally cognizable claim for the claim to accrue, and may not bury her head in the sand once she is put on notice that the government may have caused an injury.
Here, UNUM’s letters clearly placed the plaintiff on notice that UNUM had received medical records from the defendant. This information would have alerted a reasonably diligent person to ask the VA if it provided her medical records to the insurance company without an authorization. See Price v. United States, supra, 775 F.2d at 1493-94.
In  sum, because the plaintiff, in the exercise of reasonable diligence, should have been aware of a connection between the defendant and the disclosure of her medical records by at least December 2009 when she received UNUM’s letter terminating her disability insurance benefits, the plaintiff’s claim is untimely even if the diligence discovery rule of accrual did apply.
The plaintiff argues, alternatively, that it was not “until March 24, 2011, when UNUM’s final decision to terminate her disability benefits was made that [the plaintiff] had an injury” (Doc. 21, p. 15). The plaintiff is referring to the date she exhausted her administrative remedies under ERISA regarding her claim against UNUM to reinstate her disability insurance benefits.
As previously discussed, an FTCA claim accrues on the date of injury which, in this case, was no later than December 29, 2009, when the plaintiff’s disability insurance benefits were terminated. The plaintiff offers no legal authority for the proposition that the limitations period for her FTCA claim does not begin to run until she pursues another lawsuit against a different defendant based on a different claim.
Rather, lacking any legal support, the plaintiff  contends that, prior to exhausting her administrative remedies under ERISA, “she had no damages,” and that filing a claim earlier would have “wasted judicial resources” (id., pp. 12-13). Thus, the plaintiff argues that, had she prevailed at the administrative level and had her disability benefits restored, she would have had no damages and there would be no FTCA claim.
This contention is meritless because the plaintiff filed an ERISA lawsuit after the claim was administratively denied. Castelluccio v. UNUM Life Insurance Co. of America, No. 8:13-CV-1964 (M.D. Fla.). According to the plaintiff’s logic, her claim would not accrue until her ERISA lawsuit was resolved, as a favorable verdict in the lawsuit would also restore her insurance benefits. Under that scenario, the plaintiffs administrative tort claim would have been premature. Delaying the filing of a viable FTCA claim until collateral legal matters are resolved would defeat the purpose of the FTCA statute of limitations, which is to require “the reasonably diligent presentation of tort claims against the Government.” United States v. Kubrick, supra, 444 U.S. at 123.
Moreover, the argument that the plaintiff had to await the outcome  of the ERISA administrative process to see if she suffered damages is disingenuous. At the hearing, the plaintiff, in order to avoid the defendant’s argument that the FTCA claim was defeated by the misrepresentation exception to the FTCA, as discussed below, expressly disclaimed any reliance on Dr. Villalba’s purportedly erroneous diagnosis. Having made that disclaimer, there is no apparent connection between the VA’s disclosure of Dr. Villalba’s records, and the outcome by UNUM of the ERISA claim.
Thus, for several reasons, the plaintiff’s argument that the FTCA claim did not accrue until March 24, 2011, when the ERISA claim was administratively denied is meritless.
In sum, the plaintiff’s claim clearly accrued no later than December 29, 2009, when she received correspondence from UNUM terminating her disability insurance benefits. Consequently, the plaintiff’s administrative claim was untimely and this court lacks subject matter jurisdiction over her lawsuit.
The defendant also argues that the plaintiff’s complaint is barred by the misrepresentation exception to the FTCA (Doc. 15, p. 2). The FTCA sets forth exceptions to the United States’ waiver of sovereign immunity, including  that a person cannot file suit under 28 U.S.C. 1346(b) if that claim arises out of “assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. 2680(h).
In determining whether the misrepresentation exception applies, the court looks beyond how the claim is labeled to evaluate whether “the essence of the claim involves the government’s failure to use due care in obtaining and communicating information.” JBP Acquisitions, LP v. U.S. ex rel. F.D.I.C., 224 F.3d 1260, 1263 (11th Cir. 2000). Therefore, if there is no injury independent of the reliance on the erroneous information, the claim is barred under the misrepresentation exception. See Block v. Neal, 460 U.S. 289, 297, 103 S. Ct. 1089, 75 L. Ed. 2d 67 (1983) (“Section 2680(h) thus relieves the Government of tort liability for pecuniary injuries which are wholly attributable to reliance on the Government’s misstatements.”); JBP Acquisitions, LP v. U.S. ex rel. F.D.I.C., supra, 224 F.3d at 1260 (the government is not liable for injuries resulting from commercial decisions made in reliance on government misrepresentations). Further, it does not  matter for purposes of the misrepresentation exception whether the misrepresentation was made to the plaintiff or some third party. JBP Acquisitions, LP v. U.S. ex rel. F.D.I.C., supra, 224 F.3d at 1266.
The defendant argues that the crux of the plaintiff’s negligence complaint is that the defendant provided erroneous information to UNUM — Dr. Villalba’s allegedly erroneous evaluation and diagnosis — which UNUM relied upon in deciding that the plaintiff no longer qualified as disabled under the policy (Doc. 15, p. 9). Thus, the defendant argues that the plaintiff’s claim, at its essence, is one for misrepresentation because the plaintiff’s harm resulted not from the disclosure of her records, but from the allegedly erroneous information contained therein (id., pp. 10-11).
The plaintiff disputes the defendant’s characterization of her claim, arguing that she “has not claimed any cause of action or injury based on ‘misrepresentation'” (Doc. 21, p. 5, ¶20) (emphasis in original). The plaintiff’s complaint, which contains five claims of negligence, alleges that the defendant had a duty not to release the plaintiff’s sensitive medical information, it breached that duty, and that it suffered  damages as a result of that breach (Doc. 1, p. 18). The plaintiff adds that, “[r]egardless of the contents of the medical records, [she] was injured by Bay Pines’ improper release of her protected health information and psychiatric records” (Doc. 21, ¶22).
I addressed this issue with the parties at the hearing. I told plaintiff’s counsel that I understood he was representing that the alleged erroneous diagnosis had nothing to do with the plaintiff’s case, and plaintiff’s counsel affirmed that no claim was being asserted on that basis. Specifically, plaintiff’s counsel represented at the hearing that “it’s strictly a claim of an improper records release,” and that the alleged erroneous diagnosis “is not necessary to the outcome of this case.”
I informed plaintiff’s counsel that, by taking that position, the plaintiff may not subsequently assert Dr. Villalba’s alleged erroneous diagnosis in support of her damages, as the misrepresentation exception would bar such a claim. In particular, the plaintiff can no longer claim that Dr. Villalba’s allegedly erroneous diagnosis caused the termination of her disability insurance benefits.
In sum, although it is hard to conceive of how the plaintiff’s  injury is independent of the alleged erroneous contents of the records, that is what has been pled, and represented by counsel at the hearing on this matter. Therefore, the misrepresentation exception does not bar the plaintiff’s complaint. On the other hand, based on plaintiff’s counsel’s pronouncement that misrepresentation does not have anything to do with this case, the plaintiff should not be permitted, if the litigation continues, to allege damages arising from the defendant providing medical records that contained an allegedly erroneous diagnosis.
For the foregoing reasons, I recommend that the Defendant’s Motion to Dismiss (Doc. 15) be granted, and that the complaint be dismissed for lack of subject matter jurisdiction.
/s/ Thomas G. Wilson
THOMAS G. WILSON
UNITED STATES MAGISTRATE JUDGE