Family of veteran who died waiting for care at the VA speaks out – FOX 10 News | myfoxphoenix.com

PHOENIX – The Senate Committee on Veterans Affairs will now be looking into allegations of mismanagement and neglect at the Phoenix VA health care system.

A congressional report concluded as many as 40 Arizona veterans may have died while waiting to see a doctor at the VA.

When the 71-year-old navy veteran Thomas Breen  first showed signs of what turned out to be cancer his daughter-in-law tried to take him to the hospital near their San Tan Valley home.

“He stated oh no,  I am a veteran. VA is the hospital to be at. I went to the New York one and I can’t give up the VA hospital. he honored that hospital.,” said Sally Barnes-Breen.

He was seen at the VA’s emergency room, then sent home and told to make an appointment with a primary care doctor. His daughter in-law called to make the appointment and was told this; “ma’am there is there a 7 month wait you have to have patience”. “I said but you… please, please read the record, it says urgent, my pop is still bleeding ,please we are home now. A week goes by, two weeks go by, we keep calling, keep calling, and nothing,” she said.

For more than two months they waited and Breen’s condition worsened.

“It is unforgivable and it is unforgettable. Unforgivable for the VA to ever decline someone and throw him to the curb. I could have gotten better care if I took him to a veterinarian hospital,” said Barnes-Breen.

The 71-year-old veteran died on November 30th. The death certificate lists the cause as stage 4 bladder cancer. Then, week after his death, the VA called to make an appointment.

“I was screaming, how dare you, do you know my father is dead, thank you VA. I was really yelling, I didn’t want to yell at nobody but how could you not,” she said.

“I won’t give up because someone has to help change this. I am begging begging families to come forward nobody be scared. it is all for good souls,” she said.

The VA issued a statement on the case, “We offer our deepest condolences to the Breen family. Out of respect for their privacy, we can’t talk about Mr. Breen’s care specifically. Every death is a tragedy. The Phoenix VA Health Care System maintains robust internal reviews of every death to ensure standards of care are met”.

via Family of veteran who died waiting for care at the VA speaks out – FOX 10 News | myfoxphoenix.com.

Hearing to address VA Hospital conditions announced

Tampa, Florida — It’s the next step to protect veteran healthcare in the state. After reports of deplorable conditions in some VA hospitals for years, we may finally get some answers thanks to new action from the national level.

Dan Ashby’s son Corey Kent is a triple amputee, injured in Afghanistan.

“Three or four months into his rehabilitation and we thought it would be better to get him closer to home,” Ashby said.

But because their son was still in intensive care, they took Corey from from Walter Reed Medical Center to James A. Haley Veterans Hospital in Tampa without seeing it in person first.

“I can tell you this, if we would have, we would have never went to begin with,” he said.

Ashby says he was appalled pictures he took two years ago show what he says is mold under tiles on the floor, dirty bathrooms, holes in the bathroom and walls where people placed trash.

via Hearing to address VA Hospital conditions announced.

VA whistle blower speaks out about secret waiting list – FOX 10 News | myfoxphoenix.com

VA whistle blower speaks out about secret waiting list – FOX 10 News | myfoxphoenix.com.

A congressional report all began with one man; a doctor who exposed the ‘secret waiting’ list at the Phoenix VA medical center.

Doctor Sam Foote is now retired, but he worked at the VA medical center for 24 years. Foote says he became suspicious in December of 2012.

“We had thirteen thousand patients that we did not have primary care providers for, and we had over a year waiting list,” said Dr. Sam Foote.

Dr. Sam Foote tells us that after a meeting with clinic directors and the head of primary care in 2012 it was decided that the VA doctors would pick up 67 new patients.

“So by mid January my clinic had pretty much finished our work ahead of everyone else I said well do you have any more patients for us, and he said no and that made no sense,” said Foote.

Foote says the secret waiting list began in February of 2013 and that if they were on that list, there was no record that the new patient ever came to the medical center.

“You would come in they’d register you in the computer or so you thought and rather than hit save they would hit print and do a screen capture. Than they would not enter your data in the computer. They would take the paper up to health administrative services and then they would put it on a secret paper list at that time, and then shred the screen capture shot,” he said.

Last week the VA’s medical director Sharon Helman told fox 10 this: I have never directed staff to do a secret waiting list.

“Well, you can say you can sometimes play on words she didn’t say she didn’t know about it and didn’t agree with it. Did she actually say hey you, go do the secret waiting list, maybe not,” said Foote.

Foote believes that director Helman lied about wait times so that she could get a bonus. He’s asking anyone who may have lost a relative due to the wait times contact him at sfootemd@gmail.com

Read more: VA whistle blower speaks out about secret waiting list – FOX 10 News | myfoxphoenix.com http://www.myfoxphoenix.com/story/25337334/2014/04/25/va-whistle-blower-speaks-out-about-secret-waiting-list#ixzz2zxE9l0u8
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Phoenix VAMC Director Sharon Helman responsible for running the VA’s hospital with a “double secret” waiting list received $9,345 annual bonus for 2013, despite possibly being responsible for the death of 40 veterans who died waiting for doctors’ appointments.

Phoenix VAMC Director Sharon Helman responsible for running the VA’s hospital with a “double secret” waiting list  received  a$9,345 annual bonus for 2013, despite possibly being responsible for the death of 40 veterans who died waiting for doctors’ appointments. This is exactly the same sort of metric  goosing, gobbledygook performance evaluation system that got VISN 4 Director Michael Moreland a $63,000 bonus.

to provide information on the medical malpractice problem at the Veterans Administration hospital. Sometimes Veterans Administration hospital was referred to as Department of veterans’ affairs hospital, or VA Hospital. This web site has information about medical malpractice committed by doctors working for the Veterans Administration, which is sometimes referred to as the Department of veterans affairs, or sometimes simply the VA. This web site also has information about medical malpractice committed by nurses working for the Veterans Administration, which is sometimes referred to as the Department of Veterans Affairs or sometimes simply the VA. In addition, this web site has information about medical malpractice committed by physicians assistance working for the Veterans Administration, which is sometimes referred to as the Department of Veterans Affairs or sometimes simply the VA. www.vamalpractice.com www.VAmalpractice.com The information which is used on this web site, is collected from information available on the World Wide Web. It contains information about Veterans Administration medical malpractice, the manner in which the Veterans Administration defends medical malpractice cases brought by veterans. W. Robb Graham Esq .I t includes articles on Veterans Administration medical malpractice. These articles on Veterans Administration medical malpractice include references to medical malpractice by Veterans Administration nurses, Veterans Administration doctors, Veterans Administration physicians and Veterans Administration surgeons. Some of this information is provided by veterans who have been harmed by medical malpractice at Veterans Administration hospitals, or by Veterans

Following in the footsteps of Michale Moreland

Federal Employees, 2013

Name HELMAN, SHARON M

Agency DEPARTMENT OF VETERANS AFFAIRS

Division VETERANS HEALTH ADMINISTRATION

State/Country Arizona

County Maricopa County

Station PHOENIX

Title HEALTH SYSTEM ADMINISTRATION

Grade 00

Plan ES

Plan Name SENIOR EXECUTIVE SERVICE

Base Pay,

adjusted for region $169,900

Award

(Cash or equivalent) $9,345

New Search

via Federal Employees Search.

Court finds that Wilmington VA committed medical malpractice but finds that the veteran was even more negligent! Campbell v. United States, 2013 U.S. Dist. LEXIS 130414

 

The information on this web site is designed to encourage a discussion about Veterans Administration medical malpractice, malpractice claims and procedures. It is not intended to be legal advice. Legal advice can only be obtained from an attorney. If you have a medical malpractice claim against the Veterans Administration, you should consult with an attorney who is familiar with handling medical malpractice claims against the Veterans Administration and the Federal Tort Claims Act. W. Robb Graham, Esq. can be  reached  at  www.VAmalpractice.com  attorney who handles claims for veterans who have claims for malpractice against the VA, New Jersey VA Medical Malpractice lawyer, NJ Veterans Affairs Medical Malpractice attorney, NJ Veterans Administration Medical Malpractice Attorney, Philadelphia VA medical malpractice lawyer, Attorney for standard form 95 for claims for injury or wrongful death involving medical malpractice for veterans at the Philadelphia Department of Veterans Affairs Medical Center W. Robb Graham, Esq. ,  Federal Tort Claims Act attorney for veterans with medical malpractice claims from the Philadelphia Veterans Affairs Medical Center , Coatesville Veterans Affairs Medical Center, Lebanon Veterans Affairs Medical Center, Butler Veterans Affairs Medical Center , Erie Veterans Affairs Medical Center,  Wilkes Barre Veterans Affairs Medical Center, Pittsburgh Veterans Affairs Medical Center, Ft. Dix VA Clinic, Camden N.J. VA Clinic  W. Robb Graham, Esq. can be contacted through www.VAmalpractice.com  Court finds that medical malpractice occurred at the Wilmington VA, but refuses to enter an award finding that the veteran was more negligent than the VA

Court finds that medical malpractice occurred at the Wilmington VA, but refuses to enter an award finding that the veteran was more negligent than the VA

United States District Court for the District of Delaware

September 12, 2013, Decided; September 12, 2013, Filed

Civil Action No. 10-184-GMS

Judges: GREGORY M. SLEET, CHIEF UNITED STATES DISTRICT JUDGE.

Opinion by: GREGORY M. SLEET

Opinion



MEMORANDUM

I. INTRODUCTION

The plaintiff, Evelyn Campbell (“Mrs. Campbell”), brought this action against the United States of America (the “United States”) pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b). (D.I. 1.) Mrs. Campbell’s husband, Elmer Campbell (“Mr. Campbell”), died as a result of metastatic colo-rectal cancer in 2007. Mrs. Campbell alleges that his death was caused by negligent treatment received at the United States Department of Veterans Affairs Medical Center in Elsmere, Delaware (the “VA”). Mrs. Campbell claims entitlement to damages for mental anguish and lost contribution of support.

The court held a bench trial on January 22-23, 2013 and March 21, 2013. The parties have since submitted post-trial briefing. 1 (D.I. 50; D.I. 53.) Below are the court’s findings of fact and conclusions of law pursuant to  [2] Rule 52(a) of the Federal Rules of Civil Procedure.



II. FINDINGS OF FACT

Mr. Campbell was a veteran of the United States military who received medical treatment at the VA between May 1992, when he was 38 years old, and his death on February 17, 2007, at age 52. (JA at 293.) Mr. and Mrs. Campbell were married on August 9, 1985 and remained married for approximately twenty-two and a half years, until Mr. Campbell’s death. (Id. at 11.) Between November 1995 and August 1998, the couple worked together driving tractor-trailers over long distances. (Id. at 14.) The nature of this work could take them away from home for sometimes as much as a month. (Id. at 15.) Mr. Campbell had been driving for some time before Mrs. Campbell joined him on the job. (Id. at 17-18.)

Mr. Campbell was first hospitalized at the VA on September 19, 1992 for supraventricular tachycardia (“SVT”), a serious heart condition. During this admission, his medical records indicated that Mr. Campbell refused to have certain cardiology tests performed due to his fear of needles.  [3] (Id. at 204.) His next visit to the VA was on February 23, 1993 for complaints of pain in one of his fingers. (Id. at 262.)

On March 11, 1993, Dr. James Thomas, a VA employee, performed a compensation and pension exam (“C&P exam”) on Mr. Campbell to determine whether a complained-of hand injury was incurred in connection with his military service and whether he was entitled to the benefits for which he had applied. 2(D.I. 50 at ¶ 12; D.I. 53 at ¶ 8; JA at 267-68.) During this appointment, Dr. Thomas performed a broader physical exam and documented a small external hemorrhoid, guaiac positive stool, and an absence of internal masses on a rectal exam. (D.I. 50 at ¶ 9; D.I. 53 at ¶ 13; JA at 271.) A positive guaiac test indicates hidden or trace amounts of blood in a patient’s stool. (D.I. 50 at ¶ 13; D.I. 53 at ¶ 9; JA at 140-41.) Dr. Thomas’ report notes that he recommended a gastroenterology follow-up to rule out internal hemorrhoids as the cause of the guaiac positive stool. (JA at 271.)

The  [4] government’s expert, Dr. Joshua I. S. Bleier, M.D., opined that this 1993 visit produced no violation of the standard of care owed to Mr. Campbell, describing the C&P examination as simply “a data-gathering effort.” 3 (Id. at 217.) On the other hand, Mrs. Campbell’s expert, Dr. Mark Levin, M.D., declined to offer an opinion as to the standard of care applicable at a C&P examination. 4 (Id. at 164.)

Mr. Campbell missed subsequent appointments with Dr. Santram in the VA medical clinic on March 24, 1993, and with Dr. Reddy in the VA cardiology clinic on April 20, 1993. (Id. at 207.) On May 27, 1993 he was examined by Dr. Heiman, a cardiologist and internist at the VA, who documented continued SVT and scheduled blood work for the next appointment, which was to occur on November 24, 1993. (D.I. 40 at 9; D.I. 50 at ¶ 14; D.I. 53 at ¶ 53.) Mr. Campbell also cancelled that appointment. (D.I. 40 at 9; D.I. 50 at ¶ 14; JA at 207.) Dr. Heiman’s records from the May 27, 1993 visit do not indicate that there was any discussion concerning Dr. Thomas’ guaiac positive finding or the suggestion that Mr. Campbell follow  [6] up with gastroenterology. (JA at 310.)

Subsequently, Mr. Campbell failed to keep appointments with Dr. Heiman on March 8, August 5, and August 23, 1994. (Id. at 207, 291; D.I. 50 at ¶ 15; D.I. 53 at ¶ 12.) During this stretch, Mr. Campbell was seen once at the VA, when he reported sinus troubles in the medical clinic on May 19, 1994. (D.I. 50 at ¶ 15; JA at 207, 259.) On January 27, 1995, Mr. Campbell again saw Dr. Heiman and reported no new issues. (D.I. 50 at ¶ 16; JA at 208, 255.) The records from this visit do not contain any reference to the possibility of colon cancer. (JA at 208, 255.) He then had approximately annual appointments with Dr. Heiman on March 6, 1996 and March 10, 1997, and the notes from these appointments are also silent as to Dr. Thomas’ recommended gastroenterology follow-up. (D.I. 50 at ¶ 16; JA at 208, 255.) Mr. Campbell was not seen by anyone at the VA between March 1997 and October 1999. (D.I. 50 at ¶ 16; D.I. 53 at ¶ 14.)

Dr. Levin testified that the applicable standard of care between March 1993 and October 1999 required efforts to follow up on the gastroenterology issues noted in Dr. Thomas’ C&P report. (JA at 142.) He further gave his expert opinion that,  [7] had a colonoscopy been performed in March 1993, it would have revealed a small lesion that could have been removed through the colonoscope and that this early procedure would have made further treatment unnecessary. (Id. at 160.) In Dr. Levin’s view, if this lesion had been removed in March 1993, Mr. Campbell would not have followed the course that ultimately led to his death. (Id. at 160-61.) Dr. Bleier did not offer an opinion as to the standard of care owed by Mr. Campbell’s VA providers during this period. (Id. at 238.) He noted only that he was not a primary care physician and was unqualified to comment on whether the standard of care required the review of a patient’s medical history before his appointment. (Id.)

On October 3, 1999, Mr. Campbell was examined in the cardiology department for SVT and admitted to the hospital. (D.I. 50 at ¶ 18; D.I. 53 at ¶ 15; JA at 274.) A blood test revealed low hemoglobin and microcytic anemia. (D.I. 50 at ¶ 18; D.I. 53 at ¶ 15; JA at 48.) Dr. Reddy advised Mr. Campbell that he should remain in the hospital and receive a full workup to determine the cause of the anemia. (D.I. 50 at ¶ 18; D.I. 53 at ¶ 15; JA at 245-46.) Mr. Campbell, however,  [8] asked to be discharged and indicated that he preferred to follow up with his primary care physician. (D.I. 50 at ¶¶ 18-19; D.I. 53 at ¶ 15; JA at 287-88.) Dr. Reddy or his residents recommended to both Mr. and Mrs. Campbell that Mr. Campbell have a colonoscopy, and the discharge instructions given to Mr. Campbell advised: “You should have a colonoscopy to check for colon cancer.” (JA at 51-52, 249.)

Dr. Bleier opined that there was no violation of the applicable standard of care in Mr. Campbell’s October 1999 treatment. (Id. at 217-18.) Further, Dr. Bleier and Dr. Levin agreed that, even if a colonoscopy had been performed and a proper diagnosis made at that time, Mr. Campbell still would have had less than a fifty-percent chance of survival. 5 (Id. at 181-82, 218.)

An appointment was made with Mr. Campbell’s primary care provider, Dr. Kraft, on November 1, 1999. (Id.at 246.) Mr. Campbell, however, missed both this appointment and a rescheduled visit on November 15, [9] 1999. (Id. at 292.) On February 7, 2000, Mr. Campbell finally did see Dr. Kraft. (Id. at 289.) While Dr. Kraft testified that it was generally his practice to review a patient’s medical records before seeing them, he could not recall whether he reviewed Mr. Campbell’s before this appointment and noted that scheduling did not always permit for such a review. (Id. at 84-85.) Dr. Kraft’s note from this visit does not indicate whether he asked Mr. Campbell about the colonoscopy recommendation nor does it document any discussion or performance of a rectal examination. (Id. at 289.) The note does reflect that Dr. Kraft sought to have blood work done but that Mr. Campbell refused. (Id.)

Mr. Campbell then missed his next two scheduled appointments with Dr. Kraft. He eventually saw Dr. Kraft again on May 22, 2000. (Id. at 280.) While Dr. Kraft’s note from that visit states “hopefully he will agree to blood draw today,” there is no record of any blood test actually being performed. (Id.) There was no documented discussion of hemorrhoids, a rectal examination, or a colonoscopy. (Id.)

Dr. Levin testified that, under the applicable standard of care, Dr. Kraft should have been aware that a gastroenterology  [10] follow-up and colonoscopy were recommended in October 1999 and should have discussed with Mr. Campbell whether any follow-up ever occurred. (Id. at 149.) Again, Dr. Bleier noted that he was not a primary care physician and was unqualified to comment on whether the standard of care required a review of a patient’s medical history. (Id. at 238.)

Mr. Campbell saw Dr. Kraft again on July 31, 2000, complaining of pain with passing stool. (Id. at 281.) Dr. Kraft performed a rectal examination and noted both external and internal hemorrhoids. (Id. at 290.) A blood test was performed, and Dr. Kraft discovered iron deficiency anemia. (Id. at 95, 103.) In light of this finding, Dr. Kraft ordered an emergent colonoscopy, which was performed by Dr. Mills-Robertson on August 18, 2000. (Id. at 95-96, 282-83.) Prior to the colonoscopy, Dr. Mills-Robertson performed a rectal examination and discovered a mass within a finger length of the anus. (Id. at 76.) The subsequent colonoscopy and biopsy revealed a malignant mass approximately ten centimeters in length. (Id. at 77-79.)

Following this diagnosis, Mr. Campbell underwent extensive treatment at the VA, including neoadjuvent chemo radiation and surgical  [11] resection. (D.I. 50 at ¶ 24; D.I. 53 at ¶ 21.) Mr. Campbell eventually died from metastatic colorectal cancer on February 17, 2007. (D.I. 50 at ¶ 25; D.I. 53 at ¶ 21; JA at 293.)



III. DISCUSSION & CONCLUSIONS OF LAW

A. Federal Tort Claims Act and Delaware Law

The FTCA grants jurisdiction to the district courts over civil actions brought against the United States “for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). Since the conduct at issue occurred in Delaware, the law of Delaware governs Mrs. Campbell’smalpractice claims. See FDIC v. Meyer, 510 U.S. 471, 477-78, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994).

Under Delaware law, “medical negligence” is defined as “any tort or breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider to a patient.” 18 Del. C. § 6801(7). Section 6801  [12] further provides that “[t]he standard of skill and care required of every health care provider in rendering professional services or health care to a patient shall be that degree of skill and care ordinarily employed in the same or similar field of medicine as defendant, and the use of reasonable care and diligence.” Id.

In addition to a breach of the applicable standard of care, a plaintiff alleging medical negligence must demonstrate that the conduct in question was a proximate cause of the patient’s injury or death. Timblin v. Kent Gen. Hosp. (Inc.), 640 A.2d 1021, 1024 (Del. 1994). “Proximate cause is defined as ‘that direct cause without which the [injury] would not have occurred.'” Id. (quoting Chudnofsky v. Edwards, 58 Del. 280, 208 A.2d 516, 518, 8 Storey 280 (Del. 1965)). “In order to prove proximate cause, the plaintiff must show that the physician’s negligence was the probable cause of the injury, i.e., the likelihood was greater than 50 percent that the negligence caused the injury.” Id. A plaintiff is required to provide “expert medical testimony as to the alleged deviation from the applicable standard of care in the specific circumstances of the case and as to the causation of the alleged personal  [13] injury or death.” § 6853(e); see also Timblin, 640 A.2d at 1023-24. “Expert medical testimony may also be introduced by a defendant to show that the applicable standard of care was met or that any departure therefrom did not cause the plaintiff’s injury.” Timblin, 640 A.2d at 1024.

Here, Mrs. Campbell frames her FTCA action as a medical malpractice claim under Delaware’s wrongful death statute, 10 Del. C. § 3721 et seq. Section 3722 provides that “[a]n action may be maintained against a person whose wrongful act causes the death of another.” 6 § 3722(a). Mrs. Campbell’s particular claim arises under provisions of § 3724 that permit recovery for “mental anguish” and “loss of contributions for support” resulting from the death of a spouse. 7 § 3724(d)(2), (5).



B. Medical Negligence

The court concludes that no medical negligence occurred with respect to Mr. Campbell’s treatment in March 1993, October 1999, or 2000.

The only expert testimony presented regarding the standard of care expected in the March 1993 examination came from Dr. Bleier who opined that Dr. Thomas, in fact, “went above and beyond” the degree of care required in the “data-gathering” context of a C&P examination. Dr. Levin, on the other hand, declined to offer an opinion as to the applicable standard of care. The court credits Dr. Bleier’s testimony and concludes that no breach occurred at the VA in March 1993.

Likewise, on the basis of Dr. Bleier’s expert testimony, the court concludes that that there was no violation of the applicable standard of care in the October 1999 treatment by Dr. Reddy and his team. Mr. Campbell was explicitly advised of the need for a colonoscopy to rule out colon cancer, and the VA providers actually urged him to stay  [15] in the hospital and have the procedure done at that time. Not only did Dr. Reddy’s warnings meet the degree of care ordinarily employed in such a context—they, in fact, were all that Dr. Reddy could do. The court further notes that Dr. Bleier and Dr. Levin both testified that even if a proper diagnosis had been made in October 1999, Mr. Campbell still would have had less than a fifty-percent chance of survival. As such, the court cannot find that any hypothetical breach by Dr. Reddy or his team would have operated as a proximate cause of Mr. Campbell’s ultimate death. 8

Finally, the court cannot find any medical negligence in Dr. Kraft’s treatment of Mr. Campbell in February and May 2000. While the relevant expert testimony indicated that Dr. Kraft should have been aware that a gastroenterology follow-up and colonoscopy were recommended in October 1999 and should have discussed with Mr. Campbell whether any follow-up ever occurred, both Dr. Levin and Dr. Bleier agreed and the court concludes that Mr. Campbell had less than a fifty-percent chance of survival by October 1999. As such, any breach of the standard of care by Dr. Kraft in 2000 could not have functioned as a proximate cause of Mr. Campbell’s death and cannot form the basis for medical negligence. 9

The court, however, believes that the VA was negligent in failing to follow up with Mr. Campbell regarding the 1993 colonoscopy recommendation between March 1993 and October 1999. During this period, Mr. Campbell was seen at the VA on at least four occasions,  [18] but there is no record of Dr. Heiman or any other VA provider discussing Dr. Thomas’ recommendation, the need for a colonoscopy, or the potential of colo-rectal cancer. In the absence of any contrary expert testimony, the court credits Dr. Levin’s testimony that the applicable standard of care between March 1993 and October 1999 required efforts to follow up on the gastroenterology issues noted in Dr. Thomas’ C&P report. (Id. at 142.) The absence of such efforts represents a breach of the duties owed to Mr. Campbell. Moreover, the court finds that this series of failures served as a proximate cause of Mr. Campbell’s eventual death. As noted above, Dr. Levin testified that a colonoscopy performed in March 1993 would have discovered a lesion, that this lesion would have been small, and that its early removal would have altered Mr. Campbell’s course.



C. Comparative Negligence

Under Delaware law, even where a defendant’s negligence has been shown, a plaintiff may be barred from recovery where he has also acted negligently. The relevant statute provides:

In all actions brought to recover damages for negligence which results in death or injury to person or property, the fact that the plaintiff  [19] may have been contributorily negligent shall not bar a recovery by the plaintiff or the plaintiff’s legal representative where such negligence was not greater than the negligence of the defendant or the combined negligence of all defendants against whom recovery is sought, but any damages awarded shall be diminished in proportion to the amount of negligence attributed to the plaintiff.

10 Del. C. § 8132. This modified comparative negligence provision bars a plaintiff from obtaining any recovery when his share of the demonstrated negligence is greater than that of the defendant. 10 SeeAsbestos Litig. Pusey Trial Grp. v. Owens-Corning Fiberglass Corp., 669 A.2d 108, 112 (Del. 1995).

Here, the court finds that Mr. Campbell also acted negligently in failing to follow up on Dr. Thomas’ colonoscopy recommendation. 11 “It is the duty of a patient to use such care as a man of ordinary prudence would ordinarily use in circumstances like his own.” Rochester v. Katalan, 320 A.2d 704, 709 (Del. 1974). Whether due to his fear of needles, the travel required by his trucking job, or simply an unwillingness to confront his potential medical issues, Mr. Campbell fell far short of this standard in failing to inquire about a colonoscopy following the March 1993 C&P examination.  [21] During this approximately six-year period between that examination and his October 1999 hospitalization, Mr. Campbell never discussed Dr. Thomas’ recommendations with his VA providers. Further, given the court’s above finding that the VA physicians’ failure to ensure a gastroenterology consult after the C&P examination served as a proximate cause of his death, it must also conclude that Mr. Campbell’s own unreasonable delay was a proximate cause. 12

Having determined that both the VA providers and Mr. Campbell acted negligently, the court next “apportions liability on the basis of the extent of each actor’s contribution to the injurious result, i.e. proximate [24] causation.” Moffitt v. Carroll, 640 A.2d 169, 175 (Del. 1994) (“[A]fter the trier of fact finds that two or more actors were independently negligent, the amount of negligence attributed ‘comparatively’ to each actor is determined based upon the extent to which their respective negligent conduct contributed to the occurrence of the harmful event.”). The court finds that Mr. Campbell’s contribution was greater than the defendant’s. While Dr. Heiman and the other treating physicians failed to counsel a gastroenterology follow-up on a few scattered occasions during this period, Mr. Campbell’s negligence was continuous, as he refused for over six years to heed Dr. Thomas’ medical advice. The bulk of the responsibility must lie with the patient himself, who had ongoing and numerous opportunities to address the 1993 guaiac positive finding.



IV. CONCLUSION

For the reasons discussed above, the court will grant judgment in favor of the defendant.

Dated: September 12, 2013

/s/ Gregory M. Sleet

CHIEF, UNITED STATES DISTRICT JUDGE



ORDER

For the reasons stated in the court’s Memorandum of this same date, IT IS HEREBY ORDERED that:

Judgment is entered in favor of the defendant, the United States of America,  [25] and against the plaintiff, Evelyn Campbell.

Dated: September 12, 2013

/s/ Gregory M. Sleet

CHIEF, UNITED STATES DISTRICT JUDGE

White v. United States, 2013 U.S. Dist. LEXIS 137332

White v. United States, 2013 U.S. Dist. LEXIS 137332.



For UNITED STATES OF AMERICA, Defendant: ELIZABETH ANN PASCAL, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, OFFICE OF THE U.S. ATTORNEY, CAMDEN, NJ.

Judges: HON. JOSEPH H. RODRIGUEZ, United States District Judge.

Opinion by: JOSEPH H. RODRIGUEZ

Opinion

This matter comes before the Court upon the motion of the United States of America (“Government”) to Dismiss the Complaint for Lack of Subject Matter and Personal Jurisdiction. The Court has considered the written submissions and the arguments advanced at the hearing on September 23, 2013. For the reasons set forth below, and those articulated on the record at the hearing, the Government’s motion is granted.



I. BACKGROUND

This is a medical negligence case. On July 31, 2009 Plaintiff Ashlie White was diagnosed with Stage IV colon cancer. Plaintiff filed a complaint in the Superior Court of New Jersey, Law Division on July 27, 2011 against numerous defendant health care providers (“White 1”). Three of the named defendants were federal employees and on January 5, 2012, the Government entered its appearance  [2] as the proper party pursuant to 28 U.S.C. § 2679(d)(1) and 42 U.S.C. § 233 (c) and (g). The Complaint averred that the three federal defendants were acting in the scope of their employment at the time of the occurrence. As a result, the parties agree that the Plaintiff’s exclusive remedy was against the Government under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2679(b).

The action was removed to the United States District Court for the District of New Jersey and assigned to the Honorable Joseph E. Irenas, S.U.S.D.J. The Government successfully moved to dismiss the action for lack of subject matter jurisdiction because Plaintiff did not exhaust her administrative remedies prior to filing suit. On March 1, 2012, the Court dismissed White 1 as to the Government and remanded the remainder of the case to the New Jersey Superior Court. The state action is ongoing.

In light of the dismissal, Plaintiff had sixty days from March 1, 2012 to present her claims to the United States Department of Health and Human Services (“HHS”), pursuant to 28 U.S.C. § 2679(d)(5). On April 20, 2012, Plaintiff attempted to serve her FTCA notice on HHS, but “inadvertently” mailed the notice to the New Jersey  [3] Department of Treasury, Bureau of Risk Management. See Certification of Roberta Golden, Esquire (“Golden Cert.”). On May 10, 2012 Plaintiff presented HHS with notice of her tort claim.See Declaration of James C. Anagnos (“Anagnos Decl.”) ¶ 4 and Ex. 1. HHS denied the claim on June 13, 2012 as untimely. Id. at ¶4 and Ex. 2; Golden Cert., Ex. B.

Plaintiff filed the present action on December 11, 2012, within six months of the denial of her claim. The Complaint was amended on December 13, 2012 to correct the address of the United States Attorney’s Office.

The Government moves to dismiss the present action for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) because Plaintiff failed to present an administrative tort claim within sixty (60) days after dismissal of White 1. In the alternative, the Government seeks dismissal for lack of personal subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) because Plaintiff failed to properly serve the Government in accordance with Fed. R. Civ. P. 4(i). The Court will address the arguments.



II. DISCUSSION

A. Applicable Standards

Federal Rule of Civil Procedure 12 governs a court’s decision to dismiss a claim based on  [4] the pleadings.See Fed. R. Civ. P. 12. More specifically, Federal Rule of Civil Procedure 12(b)(1) governs a court’s decision to dismiss a claim for “lack of subject matter jurisdiction” and Federal Rule of Civil Procedure 12(b)(6) governs a court’s decision to dismiss a claim for failure to state a claim upon which relief can be granted.See Fed. R. Civ. P. 12(b)(1); Fed. R. Civ. P. 12(b)(6).



1. Federal Rule of Civil Procedure 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) permits a court to dismiss a case for lack of subject matter jurisdiction. A defendant may contest subject matter jurisdiction by attacking the face of the complaint (i.e., a facial attack) or by attacking “the existence of subject matter jurisdiction in fact, quite apart from any pleadings” (i.e., a factual attack). Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977); Schwartz v. Medicare, 832 F. Supp. 782, 787 (D.N.J. 1993); Donio v. United States, 746 F. Supp. 500, 504 (D.N.J. 1990). A facial attack “contest[s] the sufficiency of the pleadings.” Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009) (citation omitted). On a facial attack, the court must read the complaint  [5] in the light most favorable to the plaintiff and consider the allegations of the complaint as true. Mortensen, 549 F.2d at 891.

Under a factual attack, a court is not confined to the pleadings but may weigh and consider evidence outside the pleadings, including affidavits, depositions, and exhibits to satisfy itself that it has jurisdiction. Id.; Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000); Gotha v. United States, 115 F.3d 176, 179, 36 V.I. 392 (3d Cir. 1997) (stating that court can consider affidavits, depositions, and testimony to resolve factual issues bearing on jurisdiction). This is because on a factual motion to dismiss for lack of subject matter jurisdiction, the court’s very power to hear the case is at issue. Mortensen, 549 F.2d at 891; Gotha, 115 F.3d at 179. Moreover, on a factual attack, no presumptive truthfulness attaches to a plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of the jurisdictional claim. Mortensen, 549 F.2d at 891.

Regardless of which approach is used, a plaintiff has the burden of proving that jurisdiction exists. Lightfoot v. United States, 564 F.3d 625, 627 (3d Cir. 2009)  [6] (citing Carpet Grp. Int’l v. Oriental Rug Importers Ass’n, 227 F.3d 62, 69 (3d Cir. 2000)); Mortensen, 549 F.2d at 891. “The court may dismiss the complaint only if it appears to a certainty that the plaintiff will not be able to assert a colorable claim of subject matter jurisdiction.” Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 438 (D.N.J. 1999) (citations omitted).

If the court finds that it lacks subject matter jurisdiction, it must dismiss the action under Rule 12(h)(3). SeeFed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).



2. Federal Tort Claims Act

The Government moves to dismiss the case for lack of subject matter jurisdiction because Plaintiff failed to present an administrative tort claim within sixty (60) days after dismissal of White I. 28 U.S.C. § 2674. The claims presented in this case are governed by the FTCA, 28 U.S.C. §§ 1346(b), 2401(b), 2671 to 2680. The FTCA is a limited waiver of the sovereign immunity of the United States and confers District Courts with exclusive jurisdiction over suits against the United States. 28 U.S.C. § 1346(b).

To make a claim under the FTCA, a  [7] claimant first must file her claim with the administrative agency allegedly responsible for her injuries, here HHS. 28 U.S.C. § 2675(a). Failure to file the predicate administrative claim divests the court of subject matter jurisdiction. F.D.I.C. v. Meyer, 510 U.S. 471, 474, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994); Calderon v. United States Dep’t of Agric., 756 F. Supp. 181, 183 (D.N.J. 1990). Thus, compliance with the FTCA statutory prerequisites is mandatory because the requirements are jurisdictional and cannot be waived. McNeil v. United States Postal Serv., 508 U.S. 106, 111-13, 113 S. Ct. 1980, 124 L. Ed. 2d 21 (1993); Roma v. United States, 344 F.3d 352, 356 (3d Cir. 2003);see also 28 U.S.C. § 2675 (a).

The FTCA limitations period is two years. 28 U.S.C.§ 2401(b). “A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such a claim accrues . . . .” Id. Although timely, Plaintiff’s initial attempt to sue the health care defendants did not account for the fact that three of the defendants are federal employees. As a result, Plaintiff never sought to proceed under the auspices of the FTCA and White I was dismissed for failure to exhaust the administrative  [8] remedies. Plaintiff’s initial errant attempt in White I triggers an amendment to the limitations requirement. The Westfall Act, 28 U.S.C. §§ 2671 et seq., establishes procedures to remedy FTCA claims filed in the wrong forum. Santo ex rel. Beato v. United States, 559 F.3d 189, 193-94 (3d Cir. 2009). “The FTCA now provides that tort claims filed in state court against federal employees acting within the scope of their employment ‘shall be removed … to the district court of the United States [where the claim is pending] … and the United States shall be substituted as the party defendant.'” Id. (citing 28 U.S.C. § 2679(d)(2)).

The procedures delineated in the Westfall Act were followed in the present case. 1 As a result, Plaintiff was given a second chance pursuant to the “savings” clause of 28 U.S.C. § 2679(d)(5), which provides, in relevant part, that a claim is timely if “the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action.” 28 U.S.C. § 2679(d)(5)(B); Santos, 559 F.3d at 193-94. There is no dispute that Plaintiff’s claim did not reach HHS within the sixty day period prescribed by 28 U.S.C. § 2679(d)(5)(b). Instead, Plaintiff  [9] inexplicably presented her Notice of Tort Claim to the New Jersey Department of Treasury, Bureau of Risk Management. HHS was not presented with the claim until after the sixty day period expired. Given that the Notice to HHS is untimely, the Court must consider whether to equitably toll the FTCA limitations period. 2



3. Equitable Tolling

Equitable tolling is an extraordinary remedy that can rescue a claim otherwise barred by the statute of limitations “when a plaintiff has ‘been prevented from filing in a timely manner due to sufficiently inequitable circumstances.'” Santos, 559 F.3d at 197 (quoting Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999)). The doctrine applies in three limited circumstances: “(1) where the defendant has actively misled the plaintiff respecting the plaintiff’s cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum.”  [11] Id. (citing Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994)).

The principles of equitable tolling do not extend to “garden-variety claims of excusable neglect.” Santos, 559 F.3d at 197 (quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990)). Therefore, a plaintiff must also establish that she exercised due diligence in attempting to uncover the relevant facts and preserving her claim. Id.; see also Cetel v. Kirwan Financial Group, Inc., 460 F.3d 494, 509 (3d Cir. 2006). Ultimately, a plaintiff seeking to invoke the extraordinary remedy of equitable tolling bears a heavy burden and the Court should extend its application only sparingly. See Hedges v. United States, 404 F.3d 744, 751 (3d Cir. 2005).



B. Analysis

The circumstances of the present case do not warrant the extraordinary remedy of equitable tolling. Plaintiff was not prevented from correctly filing the Standard Form 95 with HHS nor did she act with requisite due diligence. Although she attempted to file her notice within the 60 day period, counsel sent the notice to the wrong address, the New Jersey Department of Treasury. At the hearing, counsel stated that the mistake was the result  [12] of an oversight, not confusion over the proper forum. Counsel’s failure to recognize that the letter she signed was addressed to the wrong recipient is not an extraordinary circumstance warranting equitable tolling. Compare, Santo, 559 F.3d at 203 (“We reach our conclusion applying equitable tolling with great caution, keeping in mind that [. . .] equitable tolling is an extraordinary remedy that we rarely apply.”) Rather, the mistake amounts to nothing more than garden-variety negligence; she simply made a clerical error. Unfortunately, the court cannot apply equitable tolling to garden-variety claims of excusable neglect and is constrained to dismiss the action for lack of subject matter jurisdiction. Irwin, 498 U.S. at 96; see alsoLawrence v. Florida, 549 U.S. 327, 336-37, 127 S. Ct. 1079, 166 L. Ed. 2d 924 (2007) (“Attorney miscalculation is simply not sufficient to warrant equitable tolling[.]”);Horn v. HT Assocs., LLC, No. 09-3362, 2010 U.S. Dist. LEXIS 37426, 2010 WL 1530624, at *3-4 (D.N.J. Apr. 15, 2010); Santos, 559 F.3d at 197-98 ( “It is especially appropriate to be restrictive with respect to the extension of equitable tolling in cases involving the waiver of the sovereign immunity of the United States.”)

Given that the Notice of Tort  [13] Claim was untimely filed with HHS, the Court need not address the other arguments advanced by the Government and will dismiss the action pursuant to Fed. R. Civ. P. 12 (h)(3) for lack of subject matter jurisdiction. An appropriate Order shall issue.

Dated: September 25, 2013

Pennsylvania’s statute of repose extinguish an FTCA lawsuit where the plaintiff’s administrative claim was filed with the appropriate agency within the state repose period (seven years), but the subsequent lawsuit filed in District Court was not. Cooper v. United States, 2013 U.S. Dist. LEXIS 181006

 

The information on this web site is designed to encourage a discussion about Veterans Administration medical malpractice, malpractice claims and procedures. It is not intended to be legal advice. Legal advice can only be obtained from an attorney. If you have a medical malpractice claim against the Veterans Administration, you should consult with an attorney who is familiar with handling medical malpractice claims against the Veterans Administration and the Federal Tort Claims Act. W. Robb Graham, Esq. can be  reached  at  www.VAmalpractice.com  attorney who handles claims for veterans who have claims for malpractice against the VA, New Jersey VA Medical Malpractice lawyer, NJ Veterans Affairs Medical Malpractice attorney, NJ Veterans Administration Medical Malpractice Attorney, Philadelphia VA medical malpractice lawyer, Attorney for standard form 95 for claims for injury or wrongful death involving medical malpractice for veterans at the Philadelphia Department of Veterans Affairs Medical Center W. Robb Graham, Esq. ,  Federal Tort Claims Act attorney for veterans with medical malpractice claims from the Philadelphia Veterans Affairs Medical Center , Coatesville Veterans Affairs Medical Center, Lebanon Veterans Affairs Medical Center, Butler Veterans Affairs Medical Center , Erie Veterans Affairs Medical Center,  Wilkes Barre Veterans Affairs Medical Center, Pittsburgh Veterans Affairs Medical Center, Ft. Dix VA Clinic, Camden N.J. VA Clinic  W. Robb Graham, Esq. can be contacted through www.VAmalpractice.com  Philadelphia VA tries to avoid veterans' medical malpractice claim by claiming that even though his Pennsylvania's statute of repose extinguish an FTCA lawsuit where the plaintiff's

Philadelphia VA tries to avoid veterans’ medical malpractice claim by claiming that even though his Pennsylvania’s statute of repose extinguish an FTCA lawsuit where the plaintiff’s administrative claim was filed with the appropriate agency within the state repose period (seven years), but the subsequent lawsuit filed in District Court was not.

Cooper v. United States, 2013 U.S. Dist. LEXIS 181006.

In this Federal Tort Claims Act (FTCA) lawsuit, Plaintiff alleges that his treatment at a veteran’s hospital was substandard, causing him significant and permanent injuries. The Government has filed a motion to dismiss raising an issue that has split District Courts, and for which there appears to be no definitive guidance from the Circuit Courts. The issue is: Does Pennsylvania’s statute of repose extinguish an FTCA lawsuit where the plaintiff’s administrative claim was filed with the appropriate agency within the state repose period (seven years), but the subsequent lawsuit filed in District Court was not.

We conclude that dismissal based on the state repose statute would result in significant impairment to the quick and cost-effective administrative resolution of claims against the United States that is a cornerstone goal of the FTCA. Accordingly, we find that under the  [2] circumstances present here, Pennsylvania’s statute of repose is preempted by the FTCA’s administrative exhaustion requirements.

 

 

I. Factual Background and Procedural History

According to Plaintiff’s complaint, on June 29, 2005, he was treated in the emergency department of the Philadelphia Veteran’s Hospital, and given intravenous calcium chloride. Plaintiff alleges that this treatment should not have been administered because he had “known IV access difficulties,” and in fact the treatment caused tissue damage to his arm, along with compartment syndrome. 1 As a result, Plaintiff was forced to undergo surgery, and claims “permanent impairments” in the use of his right arm. (Compl. ¶¶ 8-17.)

On June 25, 2007, less than two years later, and in compliance with the FTCA, 28 U.S.C. § 2401(b), Plaintiff submitted an administrative complaint to the Department of Veterans Affairs (VA). The VA acknowledged receipt of the claim on June 29, 2007, and requested  [3] additional information. In addition, the VA notice indicated that: “The Federal Tort Claims Act provides that the Agency has six months from receipt of the claim to investigate the claim and either deny or allow the claim, unless an extension beyond six months is granted by Claimant’s counsel.” According to Plaintiff, what followed was over five years of delay on the part of the VA. (Compl. Ex. A; Pl.’s Opp. Ex. B.)

Specifically, on September 18, 2008, the VA sent Plaintiff’s counsel a letter indicating that the claim had yet to be processed because of the “delay in receipt of the requested medical records and the press of my caseload.” The letter requested an extension to December 18, 2008, which Plaintiff’s counsel granted. (Pl.’s Opp. Ex. C-D.)

On December 18, 2008, the VA sent another letter requesting an extension, this time because “I have this date received an expert medical opinion necessary to complete my investigation.” Plaintiff’s counsel again granted the request for a thirty to sixty day extension. (Pl.’s Opp. Ex. E-F.)

The next correspondence between Plaintiff and the VA came about two years later when, on December 28, 2010, Plaintiff’s counsel wrote to the VA asking for  [4] an update on the status of the claim. The VA responded on December 30, 2010, indicating that “no action was taken to complete my investigation” since 2008, and apologizing for the delay. The letter requested a ninety day extension, and also requested that Plaintiff’s counsel submit any expert reports he had obtained. Plaintiff’s counsel granted the request for an extension. On July 15, 2011, Plaintiff forwarded an expert report to the VA, and also requested a decision within forty-five days. The letter continued: “In the event we are unable to reach an amicable resolution of this matter, I would ask that you issue a denial in this matter so that we may proceed accordingly.” (Pl.’s Opp. Ex. G-J.)

Notwithstanding the forty-five day deadline in counsel’s letter, on September 27, 2011, the VA sent Plaintiff’s counsel another request for an extension, this time indicating that while Plaintiff’s expert report had been forwarded to the VA’s expert, the reviewer had not yet been able to discuss the case with his expert. The letter did not specify a length of time for the extension, but simply indicated that the VA hoped to follow up with its expert “in the next few weeks.” The letter also included  [5] yet another “apology for the delay in investigating this claim.” The record does not include a written response to this request from Plaintiff, but on July 17, 2012, the VA issued its final decision denying the claim and advising that the investigation “did not reveal evidence of any negligent or wrongful act or omission.” The denial letter stated that Plaintiff had the right to file a lawsuit in federal court “within six (6) months,” but also that “[s]ome state laws may limit or bar a claim or law suit.” (Pl.’s Opp. Ex. K-L.)

Plaintiff filed suit on December 28, 2012, and the Government responded with this motion to dismiss on March 11, 2013. It now argues that Pennsylvania’s statute of repose bars Plaintiff’s lawsuit.

II. Discussion

A. Motion to Dismiss Standard

HN1 The FTCA confers jurisdiction on District Courts through 28 U.S.C. § 1346(b)(1), which waives sovereign immunity only “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” CNA v. United States, 535 F.3d 132, 145 (3d Cir. 2008). The Government’s Rule 12(b)(1) motion amounts to a factual attack on this Court’s  [6] jurisdiction, because it challenges not merely “an alleged pleading deficiency, but rather the actual failure of [Plaintiff’s] claims to comport with the jurisdictional prerequisites” of the FTCA. United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007). The consequence of this is that Plaintiff bears the burden of establishing jurisdiction, and unlike other familiar motions, no presumptive truthfulness attaches to the allegations in the Complaint. Mortensen v. First Federal Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). In addition, because the court is the “ultimate finder of fact” on jurisdictional questions, evidence outside the pleadings, such as the correspondence between the VA and Plaintiff outlined above, may be considered. S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329, 343, 56 V.I. 901 (3d Cir. 2012).

B. The Federal Tort Claims Act

“It is axiomatic that HN2 the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212, 103 S. Ct. 2961, 77 L. Ed. 2d 580 (1983). HN3 Among the cases in which the United States has waived its sovereign immunity are those falling within the provisions  [7] of the Federal Tort Claims Act (FTCA), which provides for jurisdiction in the District Courts over “civil actions on claims against the United States . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). This is the exclusive remedy for persons suffering negligently-inflicted injuries at the hands of an employee of the United States acting within the scope of his or her employment. 28 U.S.C. § 2679(b)(1).

HN4 The FTCA contains an exhaustion requirement, which requires a potential claimant to present his claim to the appropriate Federal agency within two years of when it accrues. 28 U.S.C. § 2401(b). HN5Generally, a lawsuit may not be filed in federal court until the agency denies the claim in writing. Id. § 2675(a). Once the denial letter is sent, a claimant must commence a lawsuit within six months. Id. § 2401(b). There is, however, an exception  [8] to the rule that a claimant must wait for a final denial letter: “The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant at any time thereafter, be deemed a final denial of the claim for purposes of this section.” Id. § 2675(a).

C. The Parties’ Positions

HN6 Pennsylvania has a seven-year statute of repose governing malpractice claims. See 40 P.S. § 1303.513(a) (HN7 “[N]o cause of action asserting a medical professional liability claim may be commenced after seven years from the date of the alleged tort or breach of contract.”). HN8 Unlike a statute of limitations, which begins to run when a cause of action accrues, a statute of repose “bar[s] any suit that is brought after a specified time since the defendant acted,” and thus may bar a claim that has not yet accrued. Black’s Law Dictionary 1545 (9th Ed. 2009). HN9 A statute of repose “does not merely bar a party’s right to a remedy as a statute of limitations does, but it completely abolishes and eliminates the cause of action.” Noll v. Harrisburg Area YMCA, 537 Pa. 274, 643 A.2d 81, 84 (Pa. 1994).

In its motion to dismiss, the Government notes that if it were a private person,  [9] its liability would be subject to Pennsylvania’s seven year statute of repose. Because the FTCA provides that the government shall be liable only to the extent of a similarly situated private person, the Government argues that the repose statute should shield it from this lawsuit, which was filed seven-and-a-half years after the date of the injury.

Plaintiff responds that the FTCA includes administrative review requirements that are governed by time limits. Plaintiff argues that enforcement of the statute of repose to bar a claim that otherwise conforms to the time-limits set forth in the FTCA would be inconsistent with the structure and goals of the FTCA. Plaintiff urges that, even if the statute of repose would bar his claim, such bar is preempted by the FTCA’s timing provisions. Plaintiff further contends that, even if the statute of repose could be invoked in certain cases to bar an FTCA claim, the Government cannot rely on it here because of the Government’s significant delay during the administrative review period.

Several key facts surrounding the parties disagreements are undisputed: (1) Plaintiff filed his administrative claim with the VA within seven years of his injury; (2)  [10] Plaintiff complied with both the two-year FTCA statute of limitation for filing an administrative claim, and the six month limitation period for filing a lawsuit in the District Court following a final denial; and (3) Plaintiff’s Complaint was filed more than seven years after his injury occurred.

D. Preemption

HN10 The Supremacy Clause provides that federal law is “the supreme Law of the Land,” U.S. Const., Art. VI, cl. 2, resolving in favor of the federal government all conflicts between it and the States in the realms in which the federal government may properly act. Thus, HN11 “state laws are preempted when they conflict with federal law,” as when a “state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'” Arizona v. United States, 132 S. Ct. 2492, 2501, 183 L. Ed. 2d 351 (2012) (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 85 L. Ed. 581 (1941)).HN12 In deciding whether and to what extent a federal statutory scheme preempts state laws, we must “examin[e] the federal statute as a whole and identify[] its purpose and intended effects.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373, 120 S. Ct. 2288, 147 L. Ed. 2d 352 (2000).

HN13 The primary purpose of the FTCA was to waive the sovereign immunity  [11] of the United States for suits in tort, and to make it liable to the extent of a private person in like circumstances. Millbrook v. United States, 133 S. Ct. 1441, 1443, 185 L. Ed. 2d 531 (2013). HN14 The FTCA permitted individuals with meritorious claims to seek redress from the government, and at the same time lifted from Congress the burden of “investigating and passing upon private bills seeking individual relief.” United States v. Muniz, 374 U.S. 150, 154, 83 S. Ct. 1850, 10 L. Ed. 2d 805 (1963).

But rather than accomplish this purpose by simply allowing a potential claimant to commence a lawsuit in district court, the FTCA, as described above, first requires the claimant to submit a claim to the appropriate administrative agency. HN15 The United States Court of Appeals for the Third Circuit has recognized two purposes for the exhaustion requirement. First, agency review helps “to ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States.” Tucker v. U.S. Postal Service, 676 F.2d 954, 958 (3d Cir. 1982) (quoting S. Rep. No. 1327, 89th Cong., 2d Sess. 6) (internal quotation marks omitted). Second, the requirement serves  [12] the goal of “providing for more fair and equitable treatment of private individuals and claimants when they deal with the Government or are involved in litigation with their Government.” Id. (quoting S. Rep. No. 1327, 89th Cong., 2d Sess. 5) (internal quotation mark omitted). HN16 Requiring claimants to begin with agency review has benefits for both sides: claims resolved by the Veterans Administration at the agency level are less costly to the Government, and less time-consuming for the claimant. See Government Accountability Office, VA Uses Medical Injury Tort Claims Data to Assess Veterans’ Care, But Should Take Action to Ensure That These Data are Complete 10 (Oct. 28, 2011), available at http://www.gao.gov/products/GAO-12-6R (noting that claims resolved administratively are concluded more quickly and cheaply than those resolved in litigation).

After careful consideration of FICA’s purposes, we conclude that HN17 when a claimant files an FTCA administrative claim with the appropriate agency at a time when the state’s statute of repose could not be invoked to bar a similar lawsuit filed in state court, applying the repose statute to bar a later-filed FTCA lawsuit would significantly impede  [13] the FTCA’s goal of resolving claims through the administrative process. We reach this conclusion for the following reasons.

First, HN18 the FTCA envisions a system where the claimant and the agency work collaboratively to review and resolve meritorious claims. Notably, although there is a two-year statute of limitation for filing an administrative claim, and a six-month window in which a claimant must file a lawsuit following the agency’s denial of a claim, there is no explicit limit on the amount of time a claimant may spend in the administrative review process. The FTCA does give the claimant the option to file in federal court if the review is not completed in six months, but this option is expressly open-ended: the claimant may file at “any time thereafter.” 28 U.S.C. § 2675(a). Granting the claimant the option of continuing with administrative review when it would be productive (or terminating it after six months if it is not) advances the goal of avoiding unnecessary litigation by promoting settlement of meritorious claims at the agency level.

Conversely,HN19 applying a state statute of repose while the parties are negotiating hobbles the statute’s administrative review provisions by artificially  [14] truncating the process. A claimant faced with a statute of repose that is about to run must abort the administrative process and file a lawsuit in federal court, even if he or she anticipates that another month of negotiation with the agency would produce an amicable—and far less costly—settlement. A state-imposed limit on the amount of time the parties can spend on administrative resolution simply does not square with the FTCA’s administrative review provisions. In our view, Congress did not intend for the states to have such significant control over administrative review of federal claims.

Aside from frustrating the goals of the FTCA, holding that Plaintiff’s lawsuit is time-barred would also not serve any of the purposes of the statute of repose. HN20 Repose statutes “promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” 54 C.J.S. Limitations of Actions § 28. HN21Repose statutes represent a legislative judgment that, at some point, the effect of time so diminishes the likelihood of finding the truth that the defendant’s interest in not being called to answer  [15] for wrongs long-since forgotten outweighs the interest the plaintiff has in recovering for the harm. For medical malpractice actions, the Pennsylvania legislature has fixed this point at seven years.

Here, the Government was on notice of the claim within two years of the allegedly wrongful conduct. Medical records were obtained, witnesses could have been interviewed, and experts were apparently consulted. The Government cannot claim it was surprised by Plaintiff’s lawsuit, as it was presented with the claim more than five years before the Complaint was filed. It was only through the VA’s foot-dragging in the handling of this claim that the case was not filed until more than seven years after Plaintiff suffered his injury.

Indeed, it would also be particularly unfair to apply the statute of repose to Plaintiff’s claim. The VA repeatedly asked for—and was granted by Plaintiff’s counsel—extensions to complete administrative review. At one point, it appears that the VA forgot about Plaintiff’s claim, and did nothing to resolve it for a period of two years. Though there is no reason to conclude that the VA was acting in bad faith, its delay does highlight that application of state statutes  [16] of repose under these circumstances might encourage federal agencies to “delay notices of denial in order to allow the statute of repose to extinguish a plaintiff’s claim.” Kennedy v. U.S. Veterans Admin., 526 Fed. Appx. 450, 458-59 (6th Cir. 2013) (White, J., concurring).

Although Pennsylvania’s repose period—seven years—might seem long enough that potential conflict with administrative review would be rare, this is not necessarily the case in other states. In a state with a three year repose statute, for example, see Tenn. Code. Ann. § 29-26-116(a)(3), a claimant who filed his claim with the appropriate agency after two years (as the FTCA allows) would have only one year to commence a lawsuit. 2 It seems obvious, given the complexity of many medical malpractice claims and the process of reviewing and analyzing medical records and conducting interviews, that it might well take more than a year for the agency to review and resolve meritorious claims. Here, for example, the Government’s review took over three years, even excluding the two years during which the VA apparently did nothing. HN22 When the manifest purpose of the FTCA’s agency-review provisions is to resolve claims administratively,  [17] allowing a state law to effectively rush the claimant into federal court defeats that purpose.

We disagree with the Government that the  [18] conflict between the FTCA and Pennsylvania’s statute of repose is alleviated by the fact that Plaintiff could have complied with both the statutes by taking advantage of the FTCA’s “deemed denied” provision.HN23 This provision allows a claimant whose claim has gone unresolved by the agency for six months to file in federal court “at the option of the claimant any time thereafter.” 28 U.S.C. § 2675(a). However, compliance with both state and federal law need not be impossible for the state law to be preempted (though impossibility does result in preemption, Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142-43, 83 S. Ct. 1210, 10 L. Ed. 2d 248 (1963)). HN24Preemption occurs where state law stands as a significant impediment to the federal scheme. As explained above, HN25 the FTCA grants a claimant the “option,” after having waited six months for agency resolution, to take the claim to federal court or continue working with the agency in hopes of an amicable settlement. Applying a state statute of repose to a claim that has already been filed with the agency would, however, significantly limit this option. No longer would the claimant be able to wait until “any time thereafter” to file a lawsuit. Instead, the statute of repose,  [19] and not the status of negotiations with the federal government, would dictate when the claimant must avail himself of relief in the federal courts.3

A review of precedent on this issue reflects that a growing number of courts have reached the same conclusion as we do today. See Blau v. United States, 2013 U.S. Dist. LEXIS 26027, 2013 WL 704762, at *3 (M.D. Fla. Feb. 26, 2013) (holding FTCA pre-empts state statute of repose to the extent it would bar a properly-filed  [20] administrative claim); Mamea v. United States, 2011 U.S. Dist. LEXIS 105315, 2011 WL 4371712, at *13 (D. Haw. Sept. 16, 2011) (holding FTCA pre-empts state limitation period whether it “is or is not a statute of repose”); Abila v. United States, 2011 U.S. Dist. LEXIS 87582, 2011 WL 3444166, at *5 (D. Nev. Aug. 8, 2011) (concluding that “[f]ederal law determines the limitations of time within which the action must be brought” and that therefore plaintiff’s claim, which complied with FTCA time limits, was not barred by statute of repose); Jones v. United States, 789 F. Supp. 2d 883, 892 (M.D. Tenn. 2011) (“A claimant’s claim is extinguished only if the claimant fails to meet the deadlines in § 2401(b), and a state’s statute of repose has no effect on the federal claim.”); Zander v. United States, 786 F. Supp. 2d 880, 886 (D. Md. 2011) (“The FTCA’s statute of limitations . . . allows the plaintiff to file his claim at any time if the administrative agency fails to act on the claim within six months of filing the claim, while the Maryland statute of repose extinguishes the plaintiff’s claim in this case, presenting a clear conflict.”)

In contrast, the cases cited by the Government provide little support for its position. West v. United States 4  [21] and Kennedy v. U.S. Veterans Administration 5 did both hold that a state statute of repose barred an otherwise compliant FTCA claim. However, West relied solely on its conclusion that the statute of repose is “substantive,” and never considered the question of preemption. Although West cited five cases that “found that state statutes of repose can extinguish FTCA claims,” 2010 U.S. Dist. LEXIS 126404, 2010 WL 4781146 at *5, upon closer inspection, none of the cases provide significant support for that proposition. Three of the cases involved situations where the court assumed that a statute of repose applied, and FTCA preemption was not discussed. 6 Of these three, two were cases in which the barred claims were not filed with the appropriate federal agency until after the repose period had expired. 7 The remaining two cases cited by the West court are not helpful because those cases did not apply a statute of repose to bar a claim against the Government under the FTCA.8

The Kennedy case suffers from the same limitations, because it relied heavily on West and the cases cited therein. The only new case Kennedy relied upon was Huddleston v. United States, 2011 U.S. Dist. LEXIS 67382, 2011 WL 2489995 (M.D. Tenn. June 22, 2011) but, like Vega and Manion, that case involved a plaintiff who had filed his administrative claim after Tennessee’s three-year statute of repose had run. In affirming the Huddleston court’s conclusion, the Court of Appeals for the Sixth Circuit explicitly declined to consider whether a state statute of repose would bar an FTCA claim when the plaintiff filed an administrative claim before the statute of repose had run—the same situation  [24] we confront. Huddleston, 485 Fed. Appx. at 746. The only other analysis the Kennedy court conducted was to note that Congress included a statute of limitations in the FTCA, but that the statute makes no mention of the statute of repose, with the suggestion being that Congress must have intended state statutes of repose to operate with full force. While Congress’s choice of time restrictions is certainly an important consideration, it is not enough to dissuade us from the conclusion that the FTCA pre-empts the repose statute under the circumstances present here. In any event, Kennedy was reversed by the Sixth Circuit, after two judges on a panel of that court concluded that there was no conflict—and thus no need for a preemption analysis—because Ohio’s statute of repose did not apply to the plaintiff’s claim. Kennedy v. U.S. Veterans Admin., 526 Fed. Appx. at 455-56.9

Applying our legal conclusions to the facts of this case, it is undisputed that Plaintiff filed his claim with the Veterans Administration within the FTCA’s two-year statute of limitations, and also within Pennsylvania’s seven-year statute of repose. It is further undisputed that Plaintiff filed his Complaint within six months of the final denial of his claim, as the FTCA required him to do. Because the FTCA preempts Pennsylvania’s statute of repose to the extent that it would bar a subsequent lawsuit on an administrative claim filed within the repose period, the fact that Plaintiff’s complaint was filed more than seven years after the date of Plaintiff’s injury is immaterial.  [26] Plaintiff’s Complaint complied with the time limitations of the FTCA, and is therefore timely.

III. Conclusion

We conclude that once a claimant has filed an administrative claim within any applicable state repose period, the FTCA preempts further application of that repose statute to bar a lawsuit filed after the administrative claim is denied. Because Plaintiff complied with the FTCA and applicable state deadlines for filing his claim, the Court has jurisdiction. The Government’s motion to dismiss will therefore be denied.

An appropriate order follows.

ORDER

AND NOW, this 30th day of December, 2013, upon consideration of the Government’s Motion to Dismiss for Lack of Subject-Matter Jurisdiction (Doc. No. 7), Plaintiff’s response, and the reply thereto, and for the reasons set forth in the accompanying memorandum opinion, it is ORDERED that the motion is DENIED.

BY THE COURT:

/s/ Mitchell S. Goldberg

Mitchell S. Goldberg, J.

Veteran’s medical malpractice case dismissed because doctor who treated veterans at the Salem VA was “an independent contractor” Faris v. United States, 2014 U.S. Dist. LEXIS 28267

Veteran’s medical malpractice case dismissed because doctor who treated veterans at the Salem VA was “an independent contractor” This case points out one of the many pitfalls that face a veterans when he or she sues the VA for medical malpractice, determining if the doctor who was negligent was an employee of the VA or an independent contractor. When sued the VA will do everything that it can to claim that the doctor was an independent contractor and therefore the VA is not responsible for paying for the negligent doctor’s medical malpractice. It would certainly avoid a lot of confusion if the VA were to require that  its “independent contractors”  wore a different uniform and were properly labeled as independent contractors.

 

Faris v. United States, 2014 U.S. Dist. LEXIS 28267.

Judges: Samuel G. Wilson, UNITED STATES DISTRICT JUDGE.

Opinion by: Samuel G. Wilson


MEMORANDUM OPINION

By: Samuel G. Wilson

United States District Judge

This is an action by Hazel Faris, executor of the estate of Geat Faris (“Faris”), against the United States of America (the “Government”), pursuant to the Federal Tort Claims Act (the “FTCA”), 28 U.S.C. § 2671, et seq., alleging medical malpractice by medical personnel who were treating Faris’ prostate cancer at theVeterans Affairs Medical Center (“VAMC”) in Salem, Virginia. The Government has moved to dismiss Faris’ complaint or for summary judgment on two grounds. First, the Government argues that Faris’ did not timely file his administrative claim with the United States Department of Veterans Affairs, a jurisdictional prerequisite to suit. Second, the Government argues that irrespective of timeliness, the court nonetheless [2] lacks subject matter jurisdiction as to claims arising from the actions of the alleged negligence of his treating physician, Dr. Anibal Medina, because Dr. Medina is an independent contractor, and the FTCA does not waive sovereign immunity for the acts of independent contractors. The court finds that Faris filed his administrative claim in a timely manner but dismisses claims arising from the alleged negligence of Dr. Medina, whom the court concludes was an independent contractor.



I.

On November 2, 2000, Dr. Medina diagnosed Faris with non-advanced, localized prostate cancer and discussed four treatment options with him: monitoring the condition, hormone therapy, radiation therapy, and surgery. Faris consulted with another doctor at the VAMC who reiterated those options, and Faris eventually opted for hormone therapy. According to Faris, the doctors led him to believe that hormone therapy was potentially curative, which in fact it is not. Over the next eight years, Faris received hormone therapy at the VAMC with apparent success. For the most part, Faris’ prostate-specific antigen (PSA) levels responded positively to the treatment,1 permitting Faris to receive fewer treatments and even  [3] to discontinue treatment altogether at various times.

In June 2008, after the VAMC lost its urology department, Faris became disgruntled with the VAMC and sought additional care from outside physicians. (ECF No. 23 at 51-52) On July 21, 2008, Faris visited Dr. Kareem Zaki,2 who reviewed Faris’ diagnosis and treatment history. Dr. Zaki told Faris he wished “[Faris] had made a different decision [eight] years [earlier] and proceeded with a more aggressive treatment modality” but found no reason to revisit the decision and recommended its resumption. (Id. at 54-55) Dr. Zaki ordered a CT scan and bone scan, as well as a PSA test. Id. at 55. The results of the CT scan and bone scan were negative, showing that the cancer had not spread, and Faris’ PSA level was 0.7. (Id. at 57-58) In light  [4] of these results, Faris chose not to resume hormone therapy. Dr. Zaki believed Faris’ choice reasonable because Faris appeared “asymptomatic.” (Id. at 57) Four months later, Faris’ PSA levels dropped to 0.5 (as of January 5, 2009). (Id. at 61) However, beginning in mid-2009, the VAMC noted that Faris’ PSA levels began to fluctuate. Faris resumed his hormone therapy, and his PSA levels again decreased. Then, in 2010, Faris’ PSA levels appeared to become less responsive to the hormone therapy, as Faris’ PSA levels gradually increased. (See id. at 104)

Because Faris had received hormone therapy intermittently for approximately ten years, the VAMC asked if he would be interested in participating in a clinical study on the side-effects of hormone therapy. Faris agreed, and the VAMC scheduled a CT scan and PSA test for September 2010. However, because Faris was having difficulty urinating, in July 2010, Dr. Zaki removed part of Faris’ prostate.3 Then, on August 19, 2010, Faris consulted another outside physician who discussed with Faris the “vagaries and inconsistencies of prostate  [5] cancer diagnosis and treatment.” (Id. at 99)

On September 20, 2010, Faris had the clinical study CT scan. That scan revealed that Faris’ cancer had metastasized. The reviewing physician did not inform Faris that his cancer had metastasized but referred him to a radiation oncologist. On September 28, 2010, the oncologist, Dr. Robert Heath, informed Faris that his prostate cancer had become “hormone refractory,” meaning that hormones could no longer prevent the growth or spread of the cancer, and that this often occurs if given enough time. As a result, Faris’ “15-year survival rate” had dropped significantly from 80 percent to less than 40 percent. Though Dr. Heath did not inform Faris that his cancer had metastasized, he recommended that Faris have radiation therapy. (Faris’ Dep. 24:6-26:24) Faris began radiation therapy, which continued until March 2011, when a physician told Faris that his September 20, 2010 CT scan had actually also revealed metastasis of his cancer and that Faris should have been receiving chemotherapy. (Faris’ Dep. 28:9-29:15) On learning this  [6] news, Faris switched from radiation treatment to chemotherapy.

On August 17, 2012, Faris filed an administrative claim with the United States Department of Veterans Affairs, alleging medical malpractice by the VAMC medical personnel. The claim was denied on February 14, 2013. Faris died on March 4, 2013. Approximately one month later, the executor of Faris’ estate filed suit in this court under the FTCA, again alleging medical malpractice by Dr. Medina and other VAMC medical personnel on the grounds that they improperly advised Faris that hormone therapy was an appropriate treatment that could cure Faris’ cancer and departed from the standard of care in providing that treatment.

The Government has moved to dismiss pursuant to Rule 12(b)(1). It argues that it is immune from liability because Faris failed to file his administrative claim with the United States Department of Veterans Affairswithin two years after Faris’ claim accrued. Irrespective of the timeliness of the filing, the Government also argues that it is immune from suit for claims arising from Dr. Medina’s negligence because he was an independent contractor and not a Government employee. Faris filed a motion to compel discovery  [7] in order to respond to the Government’s motion. The court held a hearing and granted Faris’ motion. After the parties completed discovery, the Government moved for summary judgment on the estate’s claim arising out of Dr. Medina’s course of treatment and, in support of its motion, submitted numerous declarations and exhibits. Faris responded.

According to the undisputed evidence, Dr. Medina began working at the VAMC in late 2000 under a contract with CompHealth to provide medical services to its clients as needed. CompHealth is a medical staffing company that helps place medical professionals. CompHealth, in turn, contracted with the VAMC to provide Dr. Medina’s professional services to the VMAC hospital. The VAMC-CompHealth contract stated: “It is expressly agreed and understood that this is a non-personal services contract as defined in Federal Acquisition Regulation (FAR) 37.101,4 under which the professional services rendered by the Contractor or its health care providers are rendered in its capacity as an independent contractor.” (ECF No. 31-1 at 3) According to that contract’s express provisions, the Government would have “no control over the professional aspects of the services  [8] rendered, including, by example, the Contractor’s or its health care providers’ professional medical judgment, diagnosis or specific medical treatments.” (Id.) The Medina-CompHealth contract provided similarly that Dr. Medina would provide services on a “locum tenens” (temporary) basis and would perform those services “as an independent contractor” while “exercis[ing] independent judgment and control over [his] schedule, patients, and professional services as long as [he] meet[s] the requirements of the facility where [he] work[ed].” (ECF No. 16-6 at 3)

In order to meet the VAMC’s need for a physician certified in urological surgery, the VAMC required that the physician supplied from CompHealth conduct weekly outpatient and inpatient clinics on Monday, Tuesday, and Thursday, as well as surgical procedures on Monday, Wednesday,  [9] and Friday. (Medina’s Dep. 14:9-17:2) The physician was also required to remain on-call in the event of an emergency and to abide by all hospital by-laws and any applicable state or federal requirements. (Id.) However, despite these requirements, that physician maintained the right to work for other facilities unrelated to the VAMC and the “right to delegate any of [his] obligations under [the CompHealth] agreement to an equally qualified physician with the prior consent of CompHealth and [its] client.” (ECF No. 16-6 at 3)

CompHealth, not the VAMC, paid Dr. Medina based on work actually performed (an hourly rate rather than a salary). Neither the VAMC nor CompHealth withheld any of the doctor’s taxes. (ECF 16-6; 31-1; 31-2) CompHealth paid for medical malpractice liability insurance, but Dr. Medina was responsible for his own worker’s compensation benefits, unemployment insurance, health insurance, and retirement plans. (Id.)



II.

The Government has moved to dismiss and for summary judgment on the ground that Faris did not file his administrative claim with the United States Department of Veterans Affairs within two years after it accrued, a jurisdictional prerequisite to suit under the  [10] FTCA. However, because a medical malpracticeclaim under the FTCA does not accrue until plaintiff knows or should know both the existence of his injury and its cause, and because Faris filed his administrative claim within two years of the date he knew or should have known that his cancer had worsened and that his condition was attributable to the treatment of Government medical personnel, the court denies the Government’s motion.5

The FTCA requires that plaintiffs alleging tort claims against the federal government file an administrative claim with the relevant agency within two years after the claim accrues or “be forever barred.” 28 U.S.C. § 2401(b). “Although FTCA liability is determined ‘in accordance with the law of the place where the act or omission occurred,’ federal law determines when a claim accrues.” Gould v. U.S. Dep’t of Health & Human Servs., 905 F.2d 738, 742 (4th Cir. 1990) (en banc) (citing 28 U.S.C. § 1346(b)). In United States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979), the Supreme Court determined that an FTCA medicalmalpractice claim accrues when the plaintiff discovers both the existence of an injury and its cause. Id. at 123-25. The Kubrick FTCA accrual test focuses on a plaintiff’s knowledge of facts. A plaintiff must have enough crucial facts such that he knows, or should know, that he has suffered a harm and that his [13] medical provider caused that harm so that he may protect himself by seeking legal advice. A.Q.C. ex rel. Castillo v. United States, 715 F. Supp. 2d 452, 458 (S.D.N.Y. 2010) aff’d, 656 F.3d 135 (2d Cir. 2011).

Here, Faris’ estate alleges that VAMC medical personnel negligently misadvised Faris concerning the appropriateness and efficacy of hormone therapy given Faris’ age and condition and that the resulting course of treatment caused his injury and premature death. The evidence shows, however, that the initial advice and treatment plan did not inflict an immediate harm.

Faris did not suffer an injury until his pre-existing cancer developed into a more serious condition, and that did not occur until his cancer became “hormone refractory,”6 which is a progression of the disease to an advanced form that affects survival rate and treatment options.7 Before that time, Faris’ cancer remained in substantially the same state as when Dr. Medina first diagnosed him, i.e., locally non-advanced and highly treatable. Accordingly, Faris’ cause of action did not accrue until he knew or should have known that his cancer had worsened and that it was attributable to the treatment he received. At the earliest,  [14] that occurred on September 28, 2010 when Dr. Heath in oncology informed Faris that Faris had developed hormone refractory disease as a result of outliving the effectiveness of hormone therapy. At that moment, Faris first realized that hormone therapy does not cure prostate cancer but only “controls” the disease for an unknown time period, and thus, he was not suffering from correctable complications or the “vagaries” of treatment. Rather, he was suffering an actual harm from the allegedly negligent selection years earlier of an inappropriate treatment modality for a man of his condition and age at that time.8 (Faris’ Dep. 26:2-5)

Nonetheless, the Government argues that Faris’ cause of action accrued much earlier because Faris should have inquired further after he consulted Dr. Zaki, an outside physician, on July 21, 2008.9 However, there is no evidence that Faris’ cancer had appreciably worsened at that time. In fact, Faris’ test results indicated the exact opposite. Both the new CT scan and bone scans ordered by Dr. Zaki were negative (indicating that the cancer had not spread into the bone or nearby lymph nodes), and Faris’ PSA levels remained low, leading Dr. Zaki  [16] to conclude that Faris was actually “asymptomatic.” (ECF No. 23 at 57) (PSA level of 0.7 on September 4, 2008 and 0.5 on January 5, 2009).10 Therefore, because Faris’ prostate cancer remained locally non-advanced and curable, his cause of action did not accrue when he met with Dr. Zaki.11 Rather, Faris’ cause of action accrued on September 28, 2010 when Faris had both suffered an injury and learned sufficient facts to indicate that VAMC personnel had caused that harm.

Accordingly, because  [18] Faris filed an administrative claim on August 17, 2012 (within two years of the date Faris’ cause of action accrued), his estate has satisfied the FTCA’s timely claim filing requirement, and the court will deny the Government’s motion to dismiss for untimeliness.



III.

The Government also has moved to dismiss and for summary judgment as to the estate’s claims arising out of the alleged negligence of Dr. Medina on the grounds that he was an independent contractor and not a VAMC employee because the Government did not have meaningful control that is indicative of an employer-employee relationship. The court agrees and finds that the relationship between the VAMC and Dr. Medina bore none of the hallmarks of an employer-employee relationship. Accordingly, the court grants the Government’s motion to dismiss Faris’ FTCA claims arising out of that relationship.12

“The FTCA contains a limited waiver of the United States’ sovereign immunity, allowing a plaintiff to sue the United States for damages in compensation for injuries resulting from certain torts of employees of the government acting within the scope of their employment.” Robb v. United States, 80 F.3d 884, 887 (4th Cir. 1996) (citing U.S.C. § 1346(b)). By its very terms, the waiver  [20] applies only to the acts of government employees and explicitly eliminates from government liability the tortious acts of independent contractors. SeeWood v. Standard Products Co., Inc., 671 F.2d 825, 829 (4th Cir. 1982). Whether an individual is a government employee or an independent contractor under the Act is a question of federal law. Logue v. United States, 412 U.S. 521, 528, 93 S. Ct. 2215, 37 L. Ed. 2d 121 (1973). Where the relationship is fixed by contract, the Supreme Court has applied a control test, incorporating the common-law distinction between contractors and employees or agents. Under the control test, the distinction between an employee and an independent contractor turns primarily upon the existence of federal authority to control and supervise the individual’s “detailed physical performance” and “day to day operations.” Wood, 671 F.2d at 829. Control over peripheral, administrative details, such as mandated compliance with federal standards and regulations, is not enough to make an individual an employee. Id. at 831-32; see also United States v. Orleans, 425 U.S. 807, 814, 96 S. Ct. 1971, 48 L. Ed. 2d 390 (1976). This does not mean, however, “that a physician must always be deemed an independent contractor simply because of the  [21] necessity that a physician exercise independent professional judgment in providing medical treatment to his or her patients.” Robb, 80 F.3d at 889. Control over the primary activity contracted for, although the most critical factor, is not necessarily the only factor. The Fourth Circuit has considered other potentially relevant indicia of control, such as how the individual was paid or what the parties intended, in order to distill application of the control test in the physician context. Id.13

In light of this framework, the court examines the relationship between the VAMC and Dr. Medina and concludes that Dr. Medina was an independent contractor. The VAMC contracted with CompHealth for CompHealth to provide the services of physicians, such as Dr. Medina,  [23] to help staff its hospital. The VAMC had no contract with Dr. Medina and did not pay him. Dr. Medina contracted with CompHealth alone. Both the Medina-CompHealth and VAMC-CompHealth contracts expressly provided that Dr. Medina was an independent contractor, and he acted accordingly by exercising sole discretion over his medical judgment. The Medina-CompHealth contract also did not prevent Dr. Medina from working for facilities unrelated to the VAMC and specifically allowed him to delegate his responsibilities under his contract with CompHealth to another competent physician.

In addition, CompHealth did not pay Dr. Medina a salary but rather paid him for work he actually performed. He received no federal employee benefits. CompHealth, not the VAMC, paid his medical malpracticeinsurance. And the VAMC withheld no taxes as it would have had it considered him to be an employee. In sum, the relationship between Dr. Medina and the VAMC lacked the hallmarks of an employment relationship.

Faris’ estate argues that Dr. Medina was a VAMC employee because the VAMC controlled his work schedule and patients; required him to be on-call; and provided him with assistants, an office, and equipment.14  [24] This argument, however, mischaracterizes or views the actual relationship myopically. Once again, there was no agreement between VAMC and CompHealth’s contract physicians. Rather, there was an agreement between CompHealth and VAMC to supply VAMC with certain medical personnel (having the requisite expertise and credentials) on schedules (and on call in the event of emergencies) to meet VAMC’s needs. VAMC had no hold on Dr. Medina’s time and schedule. He, or an appropriately credentialed physician, performed services CompHealth agreed to provide. Medina’s compliance with the specifications of his contract to provide professional services is in no way the kind of meaningful control that is indicative of an employer-employee relationship. Nor, contextually, is the provision of assistants, an office, and equipment of any meaningful consequence. Cilecek, 115 F.3d at 262. (Use of the hospital’s instruments and other resources is “inherent in the provision of [] medical services and likewise is not a reliable indicator of employee status [because] . . . he must, in almost every case, use . . . facilities provided by the hospital in order to render his services.”)

Faris’ estate also argues that the VAMC required compliance with hospital regulations and protocols and could terminate the relationship for failure to comply. But, as the Tenth Circuit has noted, “[s]urely, being subject to [a] hospital’s rules as a condition of staff privileges does not remotely make a private physician an employee of that hospital.” Lilly v. Fieldstone, 876 F.2d 857, 860 (10th Cir. 1989) (concluding that physician was an independent contractor); see also Orleans, 425 U.S. at 815 (“[T]he question here is not whether the [alleged government employee] receives federal money and must comply with federal standards and regulations, but whether its day-to-day operations are supervised by the Federal Government.”); Robb, 80 F.3d at 888.

Therefore, the court finds that core aspects  [26] of an employer-employee relationship were simply absent in Dr. Medina’s relationship with the VMAC. The VAMC controlled little more than “the peripheral, administrative details which were incident to the rendering of [Dr. Medina’s] medical services.” Robb, 80 F.3d at 888-91 (quoting from Wood, 671 F.2d at 831). Accordingly, the court has no jurisdiction under the FTCA for claims arising out of Dr. Medina’s alleged negligence.



V.

For the reasons stated, the court denies the Government’s motion to dismiss the action on timeliness grounds but grants its motion to dismiss claims arising from the acts of Dr. Medina, because the court finds that Dr. Medina was an independent contractor.

ENTER: March 5, 2014.

/s/ Samuel G. Wilson

UNITED STATES DISTRICT JUDGE



ORDER

By: Samuel G. Wilson

United States District Judge

In accordance with the memorandum opinion entered on this day, it is hereby ORDERED andADJUDGED that Defendants’ motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) is GRANTED IN PART and DENIED IN PART.

ENTER: March 5, 2014.

/s/ Samuel G. Wilson

UNITED STATES DISTRICT JUDGE

Jelks v. United States, 2014 U.S. Dist. LEXIS 36053

ORDER

The pro se plaintiff, Albert Floyd Jelks,1 brings this claim for medical malpractice against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80. The plaintiff alleges that he received negligent medical care when he underwent a total knee arthroplasty in March 2008 at the William Jennings Bryan Dorn Veterans Affairs Medical Center.

The Magistrate Judge assigned to this action 2 has prepared a Report and Recommendation and opines that defendant’s motion to dismiss 3 should be granted because the plaintiff has failed to comply with pre-filing requirements applicable to medical malpractice actions. The Report sets forth in detail the relevant facts and standards of law on this matter, and the court incorporates such without a recitation.

The parties were advised of their right to file objections to the Report and Recommendation which was entered on the docket on October 2, 2013. The plaintiff moved for and was granted an extension of time to file objections.

Thereafter, the plaintiff filed a motion to continue this action for an additional 60 days to obtain further discovery from a VA physician to support  [3] the plaintiff’s proposed expert witness. The court denied this motion in light of the fact that the Magistrate Judge had recommended dismissal due to the plaintiff’s non-compliance with the pre-filing requirements. The court also explained in detail to the plaintiff that he should file objections with the court, setting out in specific detail why he believed the Magistrate Judge’s recommended disposition was incorrect.

Now before the court is a document by the plaintiff styled “Motion to Dismiss Continue and Objections to the Report and Recommendation.” In this document, the plaintiff requests that the court “dismiss motion to continue the action for 60 days to file objections to the Report and Recommendation. I further request that the court dismiss the motion to file objections to Report and Recommendations. Therefore I hereby request that court grant dismissals.” It appears that the plaintiff is referring to his motion to continue for 60 days, filed November 22, 2013 (ECF No. 58). However, that motion was already denied on December 3, 2013.

This court is at a loss to determine what the plaintiff intends to communicate by this most recent pleading. If it is to be considered as a motion  [4] for a further extension of time to object to the Report and Recommendation, it is denied. Plaintiff has already received two lengthy extensions of time.

To the extent the pleading may be construed as a motion and objection to the Report, the objection is patently frivolous. Moreover, in the absence of specific objections to the Report of the Magistrate Judge, this court is not required to give any explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).

Finally, to the extent that the pleading may be considered as the plaintiff’s motion to dismiss this action, the court will decline to rule on that motion, and will instead dismiss the action on the merits based upon the Report and Recommendation of the Magistrate Judge which clearly sets out the deficiencies in the plaintiff’s pre-suit affidavit by a medical professional.4

After carefully reviewing the applicable laws, the record in this  [5] case, and the Report and Recommendation, and the plaintiff’s response thereto, this court finds the Magistrate Judge’s recommendation fairly and accurately summarizes the facts and applies the correct principles of law. The Report is adopted and incorporated herein by reference.

Accordingly, the defendant’s motion to dismiss (ECF No. 35) is granted and this action is dismissed.

IT IS SO ORDERED.

March 19, 2014

Columbia, South Carolina

/s/ Joseph F. Anderson, Jr.

Joseph F. Anderson, Jr.

United States District Judge

 

Castelluccio v. United States, 2014 U.S. Dist. LEXIS 55930

Castelluccio v. United States, 2014 U.S. Dist. LEXIS 55930.

udges: THOMAS G. WILSON, UNITED STATES MAGISTRATE JUDGE.

Opinion by: THOMAS G. WILSON

Opinion



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.



I.

The plaintiff is an honorably  [2] 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  [3] 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,  [4] 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, [5] 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 [6] 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 [7] (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,  [8] 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  [9] 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  [10] 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.



II.

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  [11] 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. denied454 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  [12] distinct from whether the defendant was negligent.



III.

“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  [13] 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  [14] 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);  [15] 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  [16] 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  [17] 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  [18] 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  [19] 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  [20] 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  [21] 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  [22] 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).  [23] 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  [24] 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  [25] 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  [26] 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  [27] 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  [28] 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.



IV.

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  [29] 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 [30] 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  [31] 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  [32] 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.



V.

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.

Respectfully submitted,

/s/ Thomas G. Wilson

THOMAS G. WILSON

UNITED STATES MAGISTRATE JUDGE