Cyrus-Barker et al v. Optimus Health Care Inc. et al
Filing
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ORDER granting 66 Motion to Dismiss Defendant USA for Lack of Jurisdiction. See attached ruling. Signed by Judge Holly B. Fitzsimmons on 9/18/2013. (Garcia, M.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MMC PPA,
VONETTA CYRUS-BARKER,
JONATHAN MORA-ALPIZAR, AND
VONETTA CYRUS-BARKER, INDIV.
v.
BRIDGEPORT HOSPITAL AND
UNITED STATES OF AMERICA
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CIV. NO. 3:11CV1733(HBF)
RULING ON DEFENDANT USA’S MOTION TO DISMISS [DOC. # 66]
Plaintiffs MMC ppa Vonetta Cyrus-Barker, and Jonathan MoraAlpizar and Vonetta Cyrus-Barker, Individually,1 assert claims of
medical malpractice against defendants Optimus HealthCare, Inc.,
Brenda Kulikowski and Bridgeport Hospital arising out of the
prenatal care and delivery of Vonetta Cyrus-Barker‟s daughter.
The United States of America was substituted for defendants
Optimus Health Care, a community health center in Bridgeport,
and Brenda Kulikowski, a midwife at Optimus. Defendant2 United
States of America moves to dismiss the complaint for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1).
Plaintiffs oppose defendant‟s motion [doc. # 74]. For the
reasons that follow, defendant‟s motion [doc # 66] is GRANTED.
1
Vonetta Cyrus-Barker brings this action on behalf of her minor
child, MMC, and Vonetta and Jonathan Mora-Alpizar, the child‟s
parents, assert individual claims as well.
2
Unless stated otherwise, all references to defendant in this
ruling refer to the defendant United States of America, whose
motion to dismiss is the subject of this ruling. Co-defendant
Bridgeport Hospital has not moved to dismiss.
1
I.
Factual Background and Procedural History
Vonetta Cyrus-Barker (hereinafter “Cyrus-Barker”) received
prenatal care at Optimus Health Care from October 29, 2008,
through May 28, 2009. On May 30, 2009, after approximately 12
hours of labor, Cyrus-Barker delivered her baby at Bridgeport
Hospital. At birth, the baby weighed 10 pounds 7 ounces. During
the delivery, the baby‟s shoulder became stuck behind the pubic
bone, a condition referred to as shoulder dystocia. The baby
suffered permanent injury to her right arm. Cyrus-Barker and her
daughter were discharged from the hospital on June 2, 2009.
On June 11, 2009, the baby was seen by her pediatrician,
Dr. Leonida. At that time, Dr. Leonida told Cyrus-Barker that
the baby had been injured at birth. Specifically, Cyrus-Barker
testified at her deposition that,
She [the pediatrician] explained me that sometimes when the
baby‟s like overweight, get stuck, so the baby – she
explained me that there are some type of maneuver that they
have to do to help the baby deliver. And sometimes they
break the shoulder, but in that time that happened because
they pull hard the baby. They pull so hard the baby that
they injure like the baby, that they fail to do the
maneuver like the maneuver they supposed to do.
[doc. # 77-1, Depo. Cyrus Barker, p. 65, 7:15].
Cyrus-Barker further testified that she was told at that
time that her daughter would never fully recover, and “that is
2
the time when we like get like, like the reality of what
happened in the delivery.” [doc. # 77-1, Depo. Cyrus Barker, p.
65, 17:20].
At a follow-up visit on October 7, 2009, Dr. Leonida
suggested that in light of the baby‟s injuries, Cyrus-Barker
should contact a lawyer. Dr. Leonida referred Cyrus-Barker to
her personal attorney, who in turn referred Cyrus Barker to
Koskoff Koskoff & Bieder. Cyrus-Barker retained Koskoff Koskoff
& Bieder on October 9, 2009.
Following a preliminary investigation, on December 15,
2010, plaintiffs‟ attorneys served two SF-95 forms3 on Optimus,
the community health center. On August 19, 2011, plaintiffs‟
counsel forwarded copies of the SF-95 claim forms to the
Department of Health and Human Services.
Plaintiffs‟
administrative claims were denied and plaintiffs filed a case
against the defendants in state court, which was removed to this
Court on November 9, 2011.
Defendant moves to dismiss the complaint for lack of
subject matter jurisdiction. The defendant argues that the Court
lacks jurisdiction because plaintiffs failed to file their
administrative claim with the appropriate federal agency within
3
An SF-95 form is a General Services Administration form used to
make a claim against a federal agency under the Federal Tort
Claims Act for damage, injury or death.
3
the two year statute of limitations as required by the Federal
Torts Claims Act.
II.
Legal Standard
As the parties seeking to invoke the jurisdiction of the
court, plaintiffs bear the burden of demonstrating that subject
matter jurisdiction is proper based on facts existing at the
time the complaint was filed. Scelsa v. City Univ. of N.Y., 76
F.3d 37, 40 (2d Cir. 1996). Under Rule 12(b)(1), the court must
accept as true all material factual allegations in the complaint
but will not draw inferences favorable to the party asserting
jurisdiction. J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d
107, 110 (2d Cir. 2004); Shipping Fin. Servs. Corp. v. Drakos,
140 F.3d 129, 131 (2d Cir. 1998). For the purposes of a Rule
12(b)(1) motion, the court may consider affidavits and other
materials beyond the pleadings. See J.S. ex rel. N.S., 386 F.3d
at 110; Robinson v. Gov't of Malaysia, 269 F.3d 133, 140–41 & n.
6 (2d Cir. 2001).
It is well settled that, absent consent, the United States
is immune from suit, as are its agencies and its officers when
the latter act in their official capacities. FDIC v. Meyer, 510
U.S. 471, 475 (1994); Dotson v. Griesa, 398 F.3d 156, 177 (2d
Cir. 2005). Therefore, a waiver of sovereign immunity is a
jurisdictional prerequisite to a suit against the federal
government or its officers. Providing a limited waiver of
4
sovereign immunity, the FTCA affords the sole remedy, in the
form of a suit against the United States, for a “personal injury
... arising or resulting from the negligent or wrongful act or
omission of any employee of the Government while acting within
the scope of his office or employment.” See 28 U.S.C. §§
1346(b)(1), 2679.
Here, the U.S. Attorney‟s Office certified that defendants
Optimus Health Care, Inc. and Brenda Kulikowski “were acting
within the scope of their federal employment as employees of the
Public Health Service at the time of the incident out of which
the Plaintiffs‟ claim arose.” [doc. # 2, Certification of Scope
of Employment under 42 U.S.C. § 233(c) and 28 U.S.C. § 2679(d)].
Thus, the United States was substituted as a party defendant in
their place and plaintiffs‟ claims against these defendants fall
under the FTCA.
The FTCA requires, as a jurisdictional prerequisite to
suit, that a plaintiff exhaust administrative remedies with the
“appropriate federal agency” before filing suit. See 28 U.S.C. §
2675(a). Moreover, a “tort claim against the United States [an
FTCA claim] shall be forever barred unless it is presented in
writing to the appropriate Federal agency within two years after
such claim accrues”. 28 U.S.C. § 2401(b).
5
III. Discussion
Defendant argues that plaintiffs‟ claim was not timely
presented in writing to the appropriate federal agency. Neither
party disputes that the appropriate federal agency in this case
was the Department of Health and Human Services. Defendant
argues that under 28 U.S.C. § 2675(a) and 28 U.S.C. § 2401(b),
plaintiffs had two years from the accrual of their claim to
notify the Department of Health and Human Services and failed to
do so, thus divesting this Court of jurisdiction.
Plaintiffs make several arguments to sustain this Court‟s
jurisdiction. First, plaintiffs argue that their claims are not
untimely under the FTCA‟s diligence discovery rule of accrual.
And, second, plaintiffs argue that their claim was
constructively filed on December 15, 2010 when Optimus was
notified. The Court takes each argument in turn.
A. Diligence-Discovery Rule of Accrual
The central issue in dispute is the date on which plaintiffs‟
claims accrued.
Defendant argues that the claim accrued at the
latest on May 30, 2009, the date on which the baby was born.
Plaintiffs argue that the earliest their claim accrued was
October 7, 2009, when Dr. Leonida suggested that Cyrus-Barker
call an attorney to get care for her daughter.
6
Pursuant to federal law, “[c]laims under the FTCA accrue
either at the time of injury or when the plaintiff has, or with
reasonable diligence should have, discovered the facts critical
to his or her injury, whichever is earlier.” Johnson v.
Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999) (citing
United States v. Kubrick, 444 U.S. 111, 118–22 (1979)). See also
Davis v. United States, 430 F. Supp. 2d 67, 73 (D. Conn. 2006).
“Ordinarily, a plaintiff's FTCA claim accrues at the time of
injury.” Kronisch v. United States, 150 F.3d 112, 121 (2d Cir.
1998) (citing Barrett v. United States, 689 F.2d 324, 327 (2d
Cir. 1982)). Accrual may be postponed where plaintiff “would
reasonably have had difficulty discerning the fact or cause of
injury at the time it was inflicted,” to the time when
“plaintiff has or with reasonable diligence should have
discovered the critical facts of both his injury and its cause.”
Kronisch, 150 F.3d at 121. In such circumstances, “[d]iscovery
of the „critical facts‟ of injury and causation is not an
exacting requirement, but requires only knowledge of, or
knowledge that could lead to, the basic facts of the injury,
i.e., knowledge of the injury's existence and knowledge of its
cause or of the person or entity that inflicted it.” Id. In
other words, “a plaintiff need not know each and every relevant
fact of his injury or even that the injury implicates a
cognizable legal claim.” Id. (quoting Barrett, 689 F.2d at 327).
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“Rather, a claim will accrue when the plaintiff knows, or should
know, enough of the critical facts of injury and causation to
protect himself by seeking legal advice.” Kronisch, 150 F.3d at
121 (citing Guccione v. United States, 670 F. Supp. 527, 536
(S.D.N.Y. 1987), aff'd on other grounds, 847 F.2d 1031 (2d Cir.
1988), cert. denied, 493 U.S. 1020 (1990)). In determining the
accrual date of a medical malpractice claim brought under the
FTCA, notice to plaintiff must be of iatrogenic, or doctorcaused, harm, but does not have to be of negligent iatrogenic
harm. Valdez ex rel. Donely v. U.S., 518 F.3d 173, 178 (2d Cir.
2008); 28 U.S.C.A. § 2401(b).
Although “[a] claim does not accrue when a person has a mere
hunch, hint, suspicion, or rumor of a claim,”
“such suspicions
do give rise to a duty to inquire into the possible existence of
a claim in the exercise of due diligence.” See Kronisch, 150
F.3d at 121 (internal citations omitted).
At the outset, the Court rejects defendant‟s argument that
the claim accrued on the date of the child‟s birth. There is
nothing in the record before the Court to suggest that CyrusBarker knew that her daughter had been permanently injured
during birth as a result of the doctor‟s actions or had any
reason to inquire further. See Rice ex rel. Rice v. U.S.,
889 F. Supp. 1466, 1471 (N.D. Okl. 1995) (denying summary
judgment where “[mother] was not put on notice in any way that
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[baby‟s] ailments were related to any action or omission
traceable to personnel at CIH”). The Court accepts CyrusBarker‟s testimony that after her daughter‟s birth, she was told
at the hospital that the “baby will be fine, but she going to
have to have a couple physical therapy.” [doc. # 77-1, Cyrus
Barker depo. p. 63, 6:8].
The Court finds that Cyrus-Barker became aware of the basic
facts of the injury after the first visit with her daughter‟s
pediatrician, Dr. Leonida, on June 11, 2009. But see, Valdez ex
rel. Donely, 518 F.3d 173, 179 (2d Cir. 2008) (remanding to
district court for further development of record on accrual date
where “nothing in the hospital records indicate that Elon‟s
mother had any understanding that there was a potential doctorrelated cause of Elon's injury”). Cyrus-Barker said so herself
at her deposition, testifying that at that visit, Dr. Leonida
explained that when babies are overweight they can get stuck,
requiring the doctors to execute a maneuver to help deliver the
baby, during which sometimes the doctors break the shoulder. She
further testified that she learned that at times doctors pull so
hard that they injure the baby, failing to do “the maneuver
[like] they supposed to do”. Notably, she testified that at the
visit she learned that her daughter would never recover 100% and
she realized that her daughter‟s injuries occurred during the
delivery. Specifically, she testified, “So that is the time when
9
we like get like, like the reality of what happened in the
delivery.”
It was at this visit that Cyrus-Barker learned the “what”
and the “who” of her daughter‟s injury; namely that her daughter
was permanently injured at birth by the doctors during delivery.
See Barrett, 689 F.2d at 330 (calculating date of accrual by
application of diligence-discovery rule where both the what
element of causation and the who element are present). It was on
June 11, 2009 that plaintiff‟s claim against the United States
accrued.
Therefore, plaintiffs must have properly notified the
Department of Health and Human Services of their claim by June
11, 2011, two years from the date of the accrual. Unfortunately,
plaintiffs‟ claim was not filed with the Department of Health
and Human Services until August 19, 2011, a little over two
months after the expiration of the statute of limitations
applicable to claims brought under the FTCA.
B. Constructively filed
Next, plaintiffs argue that the August 19, 2011 date is not
the filing date the Court should consider for purposes of
complying with the FTCA. Rather, plaintiffs argue they
constructively filed their claims on December 15, 2010, the date
that the claim was filed with Optimus. To support this argument,
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plaintiff relies on two separate bases. First, plaintiff
advances that the Court can find that Optimus constitutes a
“federal agency” for purposes of 28 C.F.R. § 14.2(b)(1), to
which notice was effectuated. Second, and alternatively,
plaintiff argues that even if the Court does not find that
Optimus is a federal agency to whom notice was properly given,
Optimus was required to transfer the plaintiffs‟ claim forms to
the Department of Health and Human Services pursuant to the
Federal Tort Claims Act Health Center Policy Manual, and that
their failure to do so permits the Court to find a constructive
filing of the notice.
1. Federal Agency
Plaintiff argues that the Court should conclude that
Optimus constitutes a “federal agency” for purposes of 28 C.F.R.
§ 14.2(b)(1), which includes “the executive departments, the
judicial and legislative branches, the military departments,
independent establishments of the United States, and
corporations primarily acting as instrumentalities or agencies
of the United States, but does not include any contractor with
the United States.” 28 U.S.C. § 2671. To that point, plaintiffs
argue that under the Federally Supported Health Centers
Assistance Act of 1992 (“FSHCAA”), 42 U.S.C. § 223, employees of
community health centers are deemed to be employees of the
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Public Health Service, which is a division of the Department of
Health and Human Services, which in turn is an “executive
department”. Thus, plaintiffs argue, Optimus should be
considered an executive department which is a federal agency for
purposes of the FTCA.
Pursuant to 28 C.F.R. § 14.2(b) when a claim is presented
to the wrong federal agency, that agency shall transfer the
claim to the appropriate agency, if the agency can be identified
from the claim. If transfer is not feasible, the claim should be
returned to the claimant. Id.
The Second Circuit has held that
a district court may find constructive filing when the plaintiff
files with the wrong federal agency and the agency fails to
transfer the claim. Mosseri v. FDIC et al., 1996 U.S. App. LEXIS
33504, at *6, Civ. No. 96-6152 (2d Cir. Dec. 23, 1996) (summary
order) (citing cases)(remanding to district court to consider
issue of constructive filing where FDIC failed to contact GSA
regarding plaintiff‟s claim).
The Court rejects the ipse dixit argument that Optimus is a
“federal agency”. Optimus is a federally funded community clinic
and the fact that employees of Optimus are covered by the FTCA
does not elevate the clinic to federal agency status. Because
Optimus is not a federal agency, it had no obligation under the
FTCA to forward plaintiffs‟ claim to the Department of Health
and Human Services. The cases cited by plaintiffs are inapposite
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in that they arise from situations where the claim forms were
sent to federal agencies, albeit, the wrong federal agencies.
See Bukala v. United States, 727 F. Supp. 382 (N.D. Ill. 1989)
(on remand finding constructive filing where plaintiff filed
notice within statute of limitations with EEOC instead of VA,
and EEOC, a federal agency, did not transfer claim to VA).
Moreover, this argument has been flatly rejected by other
courts. See e.g., Motta ex. rel. A.M. v. United States, 717 F.3d
840, (11th Cir. 2013). The Department of Health and Human
Services is the federal agency to which plaintiffs should have
sent the SF-95 form in order to satisfy their administrative
exhaustion requirements under the FTCA. Plaintiffs‟ failure to
do so within two years of the accrual date deprives this court
of jurisdiction.
2. FTCA Manual
Plaintiffs argue that the Court should find constructive
filing because Optimus was obligated to transfer claims to the
Department of Health and Human Services pursuant to the Federal
Tort Claims Act Health Center Policy Manual.
The relevant section of the Manual provides that,
Occasionally, a claimant erroneously files a lawsuit in State
court in lieu of filing an administrative claim with HHS or
less than six months after filing an administrative claim with
HHS. These lawsuits are termed premature lawsuits.
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In the event that a claimant erroneously files a claim or
serves a premature lawsuit documentation directly with the
health center, a covered entity should fax or e-mail a copy of
the documentation to OGC/GLD/CELB at the address provided
below [. . .].
[doc. # 74-2, FTCA Manual, at 19].
A careful reading of this section does not support plaintiffs‟
assertion. First, the language does not impose an obligation on
the health center to transfer a claim to the agency, stating
instead a suggested course of action or best practice, that a
“covered entity should fax or e-mail a copy of the
documentation”. Id. (emphasis added). This chosen language
stands in contrast to other sections of the manual where
unequivocal obligations on the health center are described with
the verb “must”. For example, “Health centers expecting to
operate at a temporary location beyond 90 days from the onset of
the emergency must submit a request for a change in scope of
project”, or “To be deemed/covered under FSHCAA, an entity‟s
deeming or redeeming application must provide sufficient
documentation [. . .], or “When two or more covered entities
merge to form a new corporate entity, the new corporation must
apply for FTCA coverage regardless if one or both were
previously covered entities. [doc, # 74-2, FTCA Manual, at 15,
17 (emphasis added)]. Second, and most importantly, any
obligation on the health center to notify the federal agency
does not obviate the claimant‟s obligation to do so under the
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FTCA.
The manual itself recognizes this, stating at the outset
that,
While this FTCA Policy Manual is intended to be the principal
Health Center program resource on FTCA matters, please note
that if there are any conflicts between its content and FTCA
law as interpreted by the courts (including federal statutes,
regulations, and case law), the law prevails.
[doc. # 74-2, 2].
The particular facts of this case do not compel a finding
of constructive filing. The obligation to properly notify the
government of a claim within two years of the accrual date rests
with the plaintiff, who sought legal advice within four months
of the accrual date. The Court rejects the argument that the
duty somehow can be shifted to Optimus. Here, there is no legal
basis on which to find that Optimus is a federal agency,
obligated to transfer the plaintiffs‟ notice to the appropriate
federal agency. Any administrative requirement that Optimus
notify the Department of Health and Human Services of
plaintiffs‟ claim did not replace plaintiffs‟ obligation to
notify the appropriate federal agency. Plaintiffs were aware of
their claim as of June 11, 2009 and were soon after represented
by counsel, as of October 7, 2009. Plaintiffs did not place
Optimus on notice until December 15, 2010, over a year after
their initial consultation with their attorneys. Plaintiffs did
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not file with a “federal agency” until after the statute of
limitations had expired.
IV.
Conclusion
For the reasons stated, the Motion to Dismiss for lack of
Jurisdiction by the United States [doc. # 66] is GRANTED. The
case can proceed against the remaining defendant Bridgeport
Hospital.
This is not a recommended ruling.
The parties consented to
proceed before a United States Magistrate Judge [Doc. # 49] on
October 4, 2012 with appeal to the Court of Appeals.
ENTERED at Bridgeport, this 18th day of September
2013.
______________/s/___________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE
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