Mercy Dews v. US
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:16-cv-03980-JFM. Copies to all parties and the district court/agency. . [17-1552]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MERCY DEWS; IAN DEWS,
Plaintiffs – Appellants,
UNITED STATES OF AMERICA,
Defendant – Appellee.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
J. Frederick Motz, Senior District Judge. (1:16-cv-03980-JFM)
Submitted: February 13, 2018
Decided: April 12, 2018
Before DUNCAN and AGEE, Circuit Judges, and Leonie M. BRINKEMA, United States
District Judge for the Eastern District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
E. Dale Adkins, III, Emily C. Malarkey, BEKMAN, MARDER & ADKINS LLC,
Baltimore, Maryland, for Appellants. Stephen M. Schenning, Acting United States
Attorney, Evelyn Lombardo Cusson, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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Mercy and Ian Dews (the “Appellants”) appeal the district court’s dismissal of
their untimely Federal Tort Claims Act (“FTCA”) medical malpractice action against the
United States for injuries that their son, J. Dews, sustained during his delivery at the
Walter Reed National Military Medical Center (“Walter Reed”). The Appellants urge us
to overturn Raplee v. United States, 842 F.3d 328 (4th Cir. 2016), in which we held that
filing a claim in the Maryland Health Care Alternative Dispute Resolution Office
(“HCADRO”) does not begin an FTCA action for the purposes of its statute of
limitations. See 28 U.S.C. § 2401(b). Alternatively, they urge us to apply to the FTCA,
the Maryland state law tolling provision that tolls the statute of limitations for claims
against healthcare providers for minors and the mentally disabled. See Md. Code Ann.,
Cts. & Jud. Proc. § 5-201. Although we are sympathetic to the Appellants’ situation, our
precedent compels us to reject both of their arguments. Accordingly, we affirm the
district court’s dismissal.
On October 23, 2012, Mercy Dews arrived at the Obstetrical Clinic of Walter
Reed for a scheduled appointment experiencing extreme lower pelvic pain and decreased
fetal movement. Doctors performed a cesarean section nearly two hours later. At the
time of his birth, J. Dews was in severe distress--he was not breathing and his heart was
Appellants’ Br. at 6.
He was later diagnosed with hypoxic ischemic
encephalopathy or intrapartum asphyxia, a severe brain condition caused by lack of
oxygen in utero. 1
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Since birth, J. Dews has experienced significant cognitive,
physical, and behavioral delays. Id. The Appellants allege that J. Dews’s disabilities are
the result of the fact that the employees at Walter Reed waited too long to perform a
On October 2, 2014, Appellants brought an administrative tort claim against the
United States Department of the Navy (the “Navy”) alleging medical malpractice. The
Navy denied the claim on April 20, 2016. The denial informed the Appellants that they
had six months from the date of the mailing of the letter to file suit in the appropriate
federal district court. As required by Maryland law, the Appellants filed a claim form
and statement of claim with HCADRO on October 5, 2016. 2 On October 20, 2016, they
filed two certificates of qualified experts and an expert report, as well as an election to
waive arbitration. HCADRO then issued an order on October 24, 2016, transferring the
case to the United Stated District Court for the District of Maryland. J.A. 49.
He was also diagnosed with a number of other health conditions including:
gastritis, poor feeding, bloody stools, bilateral pneumothoraces, persistent pulmonary
hypertension, atrial septal defect, hypotension, septal hypertrophy, seizures, anemia,
sepsis, thrombocytopenia, coagulopathy, hematuria, subcutaneous fat necrosis,
hypoglycemia, hypokalemia, hyponatremia, hypomagnesemia, narcotic drug withdrawal
symptoms, and other conditions. Id. at 7.
Under Maryland’s Health Care Claims Act, a Maryland plaintiff must first file a
malpractice lawsuit with HCADRO and submit a “certificate of a qualified expert,”
“attesting to departure from standards of care, and that the departure from standards of
care is the proximate cause of the alleged injury.” Md. Code Ann., Cts. & Jud. Proc. § 32A-04(a)(1)(i). The plaintiffs may then elect to waive arbitration and proceed in the
appropriate state or federal court. Id. at § 3-2A-06B (b)(1), (f)(1).
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The Appellants filed the instant action against the United States in the United
States District Court for the District of Maryland pursuant to the FTCA on December 13,
2016. On February 10, 2017, the United States moved to dismiss Appellants’ claims,
arguing that under Raplee, the Appellants’ action was untimely.
The district court
granted the United States’ motion on April 24, 2017, on that basis.
Appellants timely appealed. They urge us to overturn Raplee or, alternatively, to
equitably toll the statute of limitations because of J. Dews’s minority and disabilities. We
are constrained by precedent to affirm the district court.
We review a dismissal for failure to state a claim de novo. Schatz v. Rosenberg,
943 F.2d 485, 489 (4th Cir. 1991). Under the FTCA, tort claims against the United States
are “forever barred . . . unless action is begun within six months after the date of mailing,
by certified or registered mail, of notice of final denial of the claim by the agency to
which it was presented.” 28 U.S.C. § 2401(b). Appellants filed the instant suit after the
six-month FTCA limitation period. They urge us to find their suit timely because they
filed an HCADRO claim within the six-month period.
We explicitly rejected this
argument in a precedential opinion in Raplee. There, we found that the language of the
FTCA was clear and that “[t]he only way to begin a federal civil action is by filing a
complaint with a federal district court.” Raplee, 842 F.3d at 333. Therefore, a filing in
HCADRO did not save an untimely complaint to the federal district court. Appellants
urge us to overturn established circuit precedent. “[W]e cannot, as a panel of the court,
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overrule the decision of another panel; only the en banc court may overrule a prior panel
decision.” Jones v. Angelone, 94 F.3d 900, 905 (4th Cir. 1996). Because we are bound
by Raplee, the Appellants’ federal lawsuit is untimely as it was filed more than six
months after the Navy denied their claim.
Alternatively, Appellants urge us to engraft the Maryland provision for equitable
tolling, Md. Code Ann., Cts. & Jud. Proc. § 5-201, onto the FTCA statute of limitations.
We cannot. 3
In FTCA cases, substantive state law creates the underlying cause of action, but
“federal law defines the limitations period and determines when that cause of action
Miller v. United States, 932 F.2d 301, 303 (4th Cir. 1991).
previously held that the Maryland statute of limitations for claims against healthcare
providers, Md. Code Ann., Cts. & Jud. Proc. § 5-109(a)(1), was inapplicable to the
FTCA. Anderson v. United States, 474 F. App’x 891, 892 (4th Cir. 2012); see also
Anderson v. United States, 669 F.3d 161, 162, 164–65 (4th Cir. 2011) (certifying the
question of whether Md. Code Ann., Cts. & Jud. Proc. § 5-109(a)(1) was a statute of
Our review here is de novo because “to the extent a challenge to the denial of
tolling is not to the existence of certain facts, but instead rests on whether those facts
demonstrate a failure to bring a timely claim, resolution of th[e] challenge . . . turns on
questions of law which are reviewed de novo.” Cruz v. Maypa, 773 F.3d 138, 143 (4th
Cir. 2014) (quoting Smith v. Pennington, 352 F.3d 884, 892 (4th Cir. 2003) (internal
quotation marks and alternations omitted).
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limitations, or a statute of repose creating a substantive right), certified question
answered, 46 A.3d 426, 442 (Md. 2012) (holding that Md. Code Ann., Cts. & Jud. Proc.
§ 5-109(a)(1) was a statute of limitations as evidenced, in part, by the fact that its running
could be tolled). The Maryland provision for equitable tolling, Md. Code Ann., Cts. &
Jud. Proc. § 5-201, at issue here is an exception to the statute of limitations for claims
against healthcare providers.
Because federal law, not state law, determines the
limitations period for FTCA claims and because the equitable tolling provision at issue
here is an exception to Maryland’s statute of limitations for claims against healthcare
providers, Maryland’s equitable tolling provision is not applicable to the instant case.
Accordingly, we find that the district court did not err in that regard either.
For the foregoing reasons, the judgment of the district court is
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